text:
    Marco J. BORNE; and the Estate of Eldridge Dupree, Deceased, by and through his Personal Representative, Nichole Dupree; and the Wrongful Death Beneficiaries of Eldridge Dupree, Deceased, Appellants v. DUNLOP TIRE CORPORATION, INC., Appellee.
    No. 2008-CA-00078-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Mark D. Lumpkin, James R. Reeves, Biloxi, attorneys for appellants.
    Jerry L. Saporito, Leann W. Nealey, Jackson, attorneys for appellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J., for the Court.

¶ 1. Marco J. Borne and the Estate of Eldridge Dupree (“Plaintiffs”) appeal the judgment of the Circuit Court of Rankin County, which granted summary judgment in favor of Defendant Dunlop Tire Corporation, Inc. (“Dunlop”). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. This lawsuit originates from a single vehicle rollover accident early in the evening of February 14,1998, on Interstate 59 in Pearl River County, Mississippi. Borne was driving a 1992 Ford Explorer with two passengers: co-plaintiff, Eldridge Dupree, and another individual. Both passengers were ejected from the vehicle; Borne was not. As a result of the accident,. Dupree died, and Borne sustained severe injuries, including the subsequent amputation of his leg. Plaintiffs alleged that the right rear tire of the Explorer malfunctioned, along with unspecified defects in the Ford Explorer, causing the vehicle to go out of control and roll over.

¶ 3. In September 2001, Plaintiffs filed a self-styled “personal injury and wrongful death action” against several defendants, including Dunlop, as the manufacturer of the allegedly defective tire. Plaintiffs’ claims include negligence, strict liability, and breach of warranty. Plaintiffs presented a Dunlop RV Radial Rover tire, which they claimed was the right rear tire that was mounted on the Explorer and malfunctioned, causing the accident.

¶ 4. During the course of discovery, in July 2004, Dunlop filed a motion for a protective order to limit Plaintiffs’ discovery requests. In its motion, Dunlop argued that it should not be required to go through extensive research and investigation when Plaintiffs had not shown that the tire they presented as the subject tire of the February 1998 accident was actually

attached to the Ford Explorer at the time of the accident. Dunlop’s counsel explained at the hearing on the protective order that neither the Explorer nor any of the other tires were preserved after the accident. The only item presented to the Defendants as a remaining component of the accident was the subject tire. Dunlop contended that all of the evidence gathered at that point showed the alleged subject accident tire was not the tire mounted on Borne’s Explorer when the accident occurred. In January 2005, the trial court ruled that the parties were allowed limited discovery on information regarding the manufacturing, wholesale, and retail dates of the tire presented by Plaintiffs as the accident tire.

¶ 5. In June 2005, after the trial court ruled on Dunlop’s protective order, Plaintiffs filed a “supplementation” to their opposition to Dunlop’s motion for a protective order: the affidavit of Jay C. Zainey, whose firm originally investigated the accident and who, since the lawsuit was filed, was appointed as a United States District Court Judge for the Eastern District of Louisiana. Plaintiffs provided the affidavit in an attempt to show that the chain of custody of the subject tire had not been breached. The affidavit stated in pertinent part:

As best as I recall, on March 9, 1998, State Farm Fire & Auto Insurance Company verified that it had possession of the vehicle and that the tires were still on the vehicle. My records indicated that on April 8, 1998, my firm requested the tire from State Farm Fire & Auto Insurance Company. Soon thereafter, my employee, Wayne Parker, traveled to Long Beach, Mississippi where he retrieved the subject tire. As best as I recall, in May 1998, the subject tire was sent to a consultant. At sometime thereafter, it was returned to my possession. The tire was subsequently placed in storage at the U-Haul Storage Facility ... in New Orleans, Louisiana. It remained in this storage facility until it was turned over to the custody of the attorney, Mark Lumpkin, in November, 2001.

¶ 6. After additional discovery had concluded, on October 11, 2007, Dunlop filed a motion for summary judgment on the tire-identification issue. Dunlop alleged “nothing has changed” since the protective order — Plaintiffs still had not proven that the subject Dunlop RV Radial Rover tire was mounted on Borne’s Explorer at the time of the accident. Dunlop also addressed the validity of Jay Zainey’s affidavit, stating that it was invalid as it was not based on the affiant’s personal knowledge. Thus, Dunlop argued Jay Zainey’s affidavit should not be considered probative evidence.

¶ 7. In moving for summary judgment, Dunlop presented the following undisputed facts which Plaintiffs did not contest: Borne purchased his 1992 Ford Explorer in January 1996; Borne purchased three new Dunlop RV Radial Rover tires and had them mounted on his Explorer on November 24, 1997; and the rollover accident occurred almost three months after Borne had bought these new tires.

¶ 8. Dunlop supported its motion for summary judgment with the affidavit of Thomas Johnson, a tire performance manager for Goodyear Dunlop Tires North America, Ltd., who had inspected the subject tire and reviewed the police photographs taken at the accident scene. Johnson noted that, according to his review of the police photographs taken at the scene of the accident, the left front tire was not a Dunlop tire. Johnson stated he inspected the single tire presented by Plaintiffs as the right rear tire and found it to have excessive tread wear, measuring 4/32nds of an inch groove depth down to 2/32nds and 0/32nds inches at the serial side shoulder. He also stated that the subject tire had some tread missing and the rest of the tread was “worn excessively.” Photographs of the subject tire submitted by Plaintiffs confirm these observations. Additionally, Borne had testified in his deposition that he had driven the Explorer between 3,000 and 4,000 miles with the subject tire mounted on the Explorer, from the time of purchasing the three tires on November 24, 1997, and the date of the accident on February 14, 1998, which coincided with the monthly mileage calculated by the vehicle’s odometer reading during this time. Johnson opined that if the tire had been purchased new in November 1997, as indicated by Borne, it was impossible for the tread to be as worn as the subject tire, after only a few months’ use and 3,000 to 4,000 miles’ wear. Therefore, Johnson concluded that the tire presented for inspection could not have been on the vehicle at the time of the accident.

¶ 9. In further support of its motion, Dunlop attached the deposition testimony of Joseph Johnson, a Mississippi State Trooper who was called to the scene of the accident. He testified that his accident report reflects that the right rear tire blew out; he did not observe any tread separation at the scene of the accident, which Plaintiffs contended caused the accident.

¶ 10. On December 10, 2007, a hearing was held on Dunlop’s motion for summary judgment, at which time Dunlop moved to strike Jay Zainey’s affidavit. At the hearing, counsel for Dunlop also argued that the subject tire, allegedly sold to Borne as a new tire in November 1997, was manufactured in 1994. The trial court found Jay Zainey’s affidavit was “not sufficient” to meet the requirements of Mississippi Rule of Civil Procedure 56(e) and granted Dunlop’s motion for summary judgment because Plaintiffs had not established that the subject tire was actually on the vehicle at the time of the accident. Plaintiffs timely appealed, raising two issues: the supposed striking of Jay Zainey’s affidavit at the motion hearing and the appropriateness of summary judgment.

STANDARD OF REVIEW

¶ 11. This Court reviews a trial court’s grant of summary judgment de novo. Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130(¶5) (Miss.2003) (citing O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872(¶8) (Miss.2001)). In conducting its review, this Court looks “at all evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Id. (citing Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847(¶ 5) (Miss.2001)). This evidence will be viewed in the light most favorable to the nonmoving party. Id. (citing Leslie v. City of Biloxi, 758 So.2d 430, 431 (¶ 5) (Miss.2000)). Summary judgment is appropriate if “there is no genuine issue as to any material fact and that the moving párty is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

ANALYSIS OF THE ISSUES

1. Jay Zainey’s Affidavit

¶ 12. Plaintiffs relied on the affidavit of Jay Zainey, who originally represented Borne, to rebut Dunlop’s motion for summary judgment. Through the affidavit, Plaintiffs attempted to establish a chain of custody regarding the subject tire. Plaintiffs argue that the trial judge erroneously struck the affidavit at the hearing on Dun-lop’s motion for summary judgment. Plaintiffs contend that since no formal motion to strike the affidavit was filed by Dunlop, they were not provided an opportunity to respond, which they argue was improper. Finally, Plaintiffs state the affidavit was substantively sufficient under Rule 56(e).

¶ 13. It is undisputed that Dunlop did not file a motion to strike Jay Zainey’s affidavit with the court; instead, it made the motion for the first time at the hearing, arguing that the affidavit was facially and substantively insufficient pursuant to Rule 56(e); the affidavit was not based on the personal knowledge of Jay Zainey; and it did not create a genuine issue of material fact. Plaintiffs’ counsel promptly objected. In reviewing the hearing transcript, however, we note the trial judge did not actually strike the affidavit. Instead, the trial judge stated that the affidavit was “not sufficient” to meet the requirements of Rule 56(e), thereby implying that he did, in fact, consider the affidavit in assessing whether Plaintiffs met their burden of proof in rebutting Dunlop’s motion for summary judgment. Jay Zainey’s affidavit contained a double layer of hearsay. “[M]ost, if not all, affidavits are hearsay, but they are nevertheless properly considered on summary judgment motions as long as they are based on personal knowledge and set forth facts such as would be admissible in evidence.” Stewart v. SE. Foods, Inc., 688 So.2d 733, 734 (Miss.1996) (citing M.R.C.P. 56(e)). Here, however, Jay Zainey’s information about the subject tire is not based on his own personal knowledge, but on that of State Farm and his firm’s employee who retrieved the tire from State Farm. Jay Zainey’s affidavit is carefully worded not to overstate his position.

¶ 14. Because the affidavit was not stricken, we find this issue without merit. In the following issue, we shall discuss the affidavit’s substantive deficiencies pursuant to Rule 56(e).

2. Summary Judgment

¶ 15. Borne contends that there is a genuine issue of material fact regarding whether the subject tire in Borne’s possession was, in fact, the tire on his Explorer at the time of the accident. He argues that the trial court impermissibly weighed the evidence and resolved the ultimate issues of the case by granting summary judgment based on its own observations and assessment of the evidence. We disagree.

¶ 16. The law of summary judgment is well established. Summary judgment is warranted if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial. Grisham v. John Q. Long V.F.W. Post, No. 4,057, Inc., 519 So.2d 413, 416 (Miss.1988) (citing Galloway v. The Travelers Insurance Co., 515 So.2d 678, 683 (Miss.1987)). Therefore, to survive summary judgment, the party opposing the motion must “rebut by producing significant probative evidence showing that there are indeed genuine issues for trial.” Price v. Purdue Pharma Co., 920 So.2d 479, 485(¶ 16) (Miss.2006) (quoting McMichael v. Nu-Way Steel and Supply, Inc., 563 So.2d 1371, 1375 (Miss.1990)). “[A]n adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that thex-e is a genuine issue for trial.” Id. at 483-84(1110). Furthermore, each element of each claim must be based on more than a scintilla of evidence; it must be “evidence upon which a fair-minded jury could return a favorable verdict.” Luvene v. Waldrup, 903 So.2d 745, 748(¶ 10) (Miss.2005) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996)).

¶ 17. In their complaint, Plaintiffs claim the subject tire was defective and caused the accident which resulted in the death of Dupree and serious injury to Borne. Therefore, an essential element of each of Plaintiffs’ legal claims against Dun-lop is that this specific Dunlop RV Radial Rover tire was the tire on the vehicle at the time of the accident. Dunlop, in moving for summary judgment, presented evidence to the effect that the subject tire could not have been on the vehicle at the time of the accident. The burden of proof then shifted to Borne to rebut Dunlop’s contentions and submit “significant, probative evidence” showing there was a triable issue of fact as to whether the subject tire was mounted on the right rear of the Explorer at the time of the accident. Plaintiffs, however, failed to present such proof and instead relied wholly upon Jay Zainey’s affidavit.

¶ 18. Dunlop concluded that the subject tire’s tread depth, based on Plaintiffs’ factual time line, established that the subject tire was not on the vehicle at the time of the accident, and our de novo review of the record confirms this conclusion. According to Borne’s discovery responses and deposition, he purchased three new Dunlop replacement tires on November 24, 1997, and had them mounted on his Explorer. The accident at issue occurred nearly three months later on February 14, 1998. Borne testified in his deposition that he traveled between 3,000 and 4,000 miles with the new Dunlop tires during this approximate three-month period. The Explorer’s odometer readings corroborated Borne’s mileage estimation. He testified that he never looked at his tires; so he did not know how worn they were. The evidence shows that the Dunlop subject tire was manufactured during the thirty-third week of 1994. Dunlop’s tire performance manager, Thomas Johnson, physically examined the subject tire which revealed excessive tread wear. Johnson was of the opinion that it was physically impossible for a new tire after only 3,000 to 4,000 miles of usage to exhibit the tread wear he measured. Therefore, he concluded the subject tire could not have been on Borne’s Explorer at the time of the accident.

¶ 19. Further, photographs of the subject tire presented by Plaintiffs show a significant amount of tread missing, which is indicative of tread separation, not a blowout. Contrastingly, Trooper Joseph Johnson, who was on the scene investigating the accident, testified in his deposition that his personal inspection of the tire at the scene revealed nothing more than a blowout, not tread separation. Trooper Johnson testified he would have noted any tread separation in his report if he had noticed any at the scene.

¶20. Plaintiffs argue that since Dun-lop’s motion for summary judgment was based solely on whether the subject tire was on the Explorer during the accident, not the ultimate issue of whether the tire was defective, this is the only issue before the Court. We agree. However, Plaintiffs further contend that Jay Zainey’s affidavit creates a genuine issue of material fact about the chain of the tire’s custody from the time of the accident until it was turned over to Borne’s current attorney. We disagree.

¶ 21. In his affidavit, Jay Zainey stated, “[a]s best as I recall, on March 9, 1998, State Farm Fire & Auto Insurance Company verified that it had possession of the vehicle and that the tires were still on the vehicle.” The next month, Jay Zai-ney’s firm requested the tire, and a firm employee traveled to Long Beach, Mississippi to retrieve it. Then, in May 1998, Jay Zainey again stated, “[a]s best as I recall,” the subject tire was sent to a consultant, returned to his possession, placed in storage in New Orleans, Louisiana and handed over to Plaintiffs’ current counsel. The trial judge found Jay Zainey’ affidavit insufficient under Rule 56(e) because it was not based on Jay Zainey’s personal knowledge.

¶ 22. We find the trial judge properly found Jay Zainey’s affidavit insufficient. Jay Zainey’s affidavit does not set forth specific facts showing there is a genuine issue for trial; it merely contains multiple levels of hearsay statements concerning the chain of custody of the tire. There is no testimony from the actual individuals who may have handled the tire; instead, Jay Zainey recounts what he heard happened to the tire. While most affidavits are hearsay, the supreme court has stated that such affidavits may be considered on summary judgment motions where they are “based on personal knowledge and set forth facts such as would be admissible in evidence.” Levens v. Campbell, 733 So.2d 753, 758(¶ 13) (Miss.1999) (citing Stewart, 688 So.2d at 734). Here, there is no personal knowledge expressed by Jay Zainey about the subject tire. The affidavit neither indicates that Jay Zainey actually saw or examined the subject tire nor that Jay Zainey even specifically linked his statements to the specific Dunlop RV Radial Rover tire presented by Plaintiffs in this case. Accordingly, the affidavit is substantively insufficient in linking statements about the subject tire to the tire on the Explorer at the time of the accident.

¶ 23. While Plaintiffs’ ultimate issue is whether the tire is defective, the first hurdle for all of Plaintiffs’ claims is to establish that the subject tire they presented was actually the tire on the vehicle at the time of the accident. This they did not do. There is no admissible evidence linking the tire presented in discovery to the accident at issue; there is only the affidavit of a single witness with no personal knowledge repeating hearsay and double hearsay. It appears from the facts of this case, that State Farm had exclusive control over the tire at issue, and someone who had personal knowledge of the storage of the tire would have to testify that the tire, which was turned over to Parker, an employee of Jay Zainey’s firm, was in fact the tire that was on the vehicle at the time of the accident. This was not done. Plaintiffs were aware that the authenticity of the subject tire was at issue since July 2004, yet they never presented an affidavit of anyone with personal knowledge of its chain of custody.

¶ 24. After careful examination of the record, we find Plaintiffs failed to meet their burden of linking the subject tire to the tire that was on the Explorer at the time of the accident. Plaintiffs failed to provide specific, significant, probative evidence to rebut Dunlop’s contentions and to establish a genuine issue for trial “upon which a fair-minded jury could return a favorable verdict.” See Luvene, 903 So.2d at 748(¶ 10). Therefore, we affirm the trial court’s grant of summary judgment in favor of Dunlop.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.

      . Borne also sued Bridgestone/Firestone, Inc., as the retailer of the allegedly defective tire; Ford Motor Company as the manufacturer of the allegedly defective Ford Explorer; and Interstate Ford, as the retailer of the vehicle. Ford Motor Company and Interstate Ford settled with Plaintiffs and were dismissed from the case. Plaintiffs voluntarily dismissed Bridgestone/Firestone, Inc., after it filed a motion for summary judgment on the ground that it did not sell Dunlop tires at the time relevant to this case. Therefore, this appeal involves only Defendant Dunlop, as all of the other original defendants are no longer a part of this action.
      Plaintiffs initially filed the action in the Hinds County Circuit Court; however, venue was changed to the Rankin County Circuit Court, from which this appeal was taken.

      . Borne testified he paid cash for the tires, but he could not produce a receipt for them. As previously mentioned, Plaintiffs voluntarily dismissed their suit against the alleged retailer, Bridgestone/Firestone, Inc., after the retailer established that it did not sell Dunlop tires at the time Borne contends he purchased the Dunlop tire. The subject tire had no individualized serial number for tracking it from the manufacturer to the retailer; counsel for Dunlop explained that this is not unusual.

      . Johnson stated that a tread is considered worn out when any groove reaches 2/32nds of an inch of tread remaining or less. The tread depth on a new tire of this type is 16/32nds of an inch.

      . In these photographs, as Dunlop's counsel argued at the summary judgment hearing, the subject tire is "completely void of tread, worn out, [containing a] flat surface, bald, and also [there is] a big part of the tire where the tread is entirely missing.”

      . Rule 56(e) requires supporting and opposing affidavits to be made on personal knowledge, setting forth facts that would be admissible in evidence, and “show affirmatively that the affiant is competent to testify to the matter stated therein.”

        . Implicitly, Jay Zainey's affidavit is based either upon what State Farm ''verified” to him or what his employee, Wayne Parker, told him upon his return with the tire. Each hearsay pari of the statement must qualify under an exception for hearsay to be admissible. M.R.E. 805 cmt.


source: Caselaw Access Project

author: ISHEE, J., for the Court.

license: Public Domain

text:
    James Alton WALLACE, Appellant v. Donna WALLACE, Appellee.
    No. 2008-CA-00501-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Edwin L. Bean, McComb, Attorney for Appellant.
    Durwood Jewell Breeland, Brookhaven, Attorney for Appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J., for the Court.

¶ 1. Following a divorce in 2002, James Wallace filed a motion to modify his alimony payments in light of his ex-wife’s cohabitation with another man. The Chancery Court of Lincoln County denied James’s motion. The chancery court found that although Donna Wallace had cohabited with Terrance Hogan for a year, she was able to rebut the presumption of mutual financial support. Aggrieved by the chancery court’s ruling, James timely appealed. He argues that the chancery court erred when it found that Donna successfully rebutted the presumption of mutual support, and he asks that his alimony payments be terminated.

¶2. We find that the chancellor erred in finding that Donna successfully overcame the presumption of mutual economic support between her and Terrance. Accordingly, we reverse the decision of the chancery court and render judgment terminating James’s alimony payments. We remand this case to the chancery court on the issue of whether the termination is effective upon the date that James filed his petition.

FACTS AND PROCEDURAL HISTORY

¶ 3. In a decree of divorce entered on March 18, 2002, the Chancery Court of Lincoln County granted a divorce to James and Donna. The chancery court ordered James to pay Donna lump-sum alimony of forty percent of his annuity payments that he was to receive in 2004, 2009, 2014, and 2019. Additionally, the chancery court ordered James to pay permanent periodic alimony in the amount of $700 per month.

¶ 4. Upon learning that Donna had begun cohabiting with another man, James filed a motion to modify his alimony payments. In the motion, James asked the chancery court to terminate his alimony obligations because Donna and Terrance were living together and supporting each other financially. Donna admitted that she and Terrance had been living together since December 2006, but she denied James’s allegation of mutual financial support.

¶ 5. The chancery court held a hearing on the matter of modification of alimony on December 11, 2007. Only two witnesses testified — Donna and James. Donna said that she and Terrance met in an online gaming room in September 2006. He moved to Bogue Chitto, Mississippi in December 2006 and began living in the former marital home with Donna. According to Donna, she and Terrance agreed to an arrangement where he would take care of any yard work or outside work and any repairs on or around the house in exchange for Donna providing him a place to stay. Donna said she made this arrangement because she was unable to do a number of things around the house.

¶ 6. Since Terrance began living with Donna, he had done the following work around the house: fixed the plumbing to allow the bathtub to drain, fixed a leaky toilet, dug up and cleaned pipes to fix an overflowing washing machine, cleared the hedges — a project that was still ongoing at the time of trial, tore down an old barn, cut down a dead tree that hung over the house, built a burn pit, cleaned the flower beds, treated the concrete in the pump house to keep out moisture, built steps to get into a metal building, built a picnic table, built a flower bed around a metal building, and installed light fixtures in three rooms. Additionally, he regularly mowed the grass and cleaned the yard. Donna testified that she had been quoted a price of $100 to mow her yard, which would work out to $200 per month if she had to pay someone to mow it twice a month. Donna also said that Terrance was going to paint the house and replace the shingles on her house once she had the money to buy the necessary supplies.

¶ 7. When Terrance left Wisconsin and came to Mississippi, he did not have a job, and he did not find a job until March 2007. However, Donna said that he brought money with him from Wisconsin and that she did not support him financially while he was unemployed. Terrance continued working from March until August or September 2007, at which point he again became unemployed. At the time of trial, Terrance was working one day a week, making $80 per month at Donna’s son-in-law’s mother’s antique store, but he was in search of employment. Donna also worked the same shift at the antique store, making $80 a month.

¶8. Donna admitted that she and Terrance had sexual relations about once every two weeks, but she denied that they were in any type of relationship. As the chancellor pointed out in his bench ruling, there was no evidence that the parties shared a bedroom. Donna testified that Terrance would have moved to Louisiana to stay with a friend, but he agreed to stay with her after her health deteriorated. They would occasionally go grocery shopping together, but they would pay for their own groceries and cook their separate meals. Besides the groceries in the refrigerator, they kept their groceries separate. They had only been to two social functions together in the year that Terrance had been in Mississippi. Once, Terrance came with Donna to her daughter’s birthday party at a restaurant. Another time, they went to a Fourth of July barbecue together in Kentwood, Louisiana. Donna did not buy Terrance a birthday present or a Christmas present.

¶ 9. Donna further testified that she received financial support from her daughter, Martha Guy (“Marty”). Since June 2007, after James filed the motion to terminate alimony, he had not paid Donna any alimony, so Marty has been paying Donna’s bills for her. Donna’s only other source of income was the $80 per month from the antique shop and $126 per month in food stamps.

¶ 10. Besides Donna, James called no other witnesses in support of his motion. Donna’s attorney called James to testify during her case. James testified that he had no evidence concerning Donna’s financial situation, and he could not dispute any of the testimony given by Donna.

¶ 11. On December 27, 2007, the chancery court dismissed James’s motion. In its order, the chancery court found that Donna and Terrance had been living together since December 2006 through the time of trial. Nevertheless, the chancery court found that Donna had successfully rebutted any presumption that she and Terrance financially supported each other and that James had failed to prove that a de facto marriage existed between Donna and Terrance. Lastly, the chancery court ordered James to pay Donna $4,900, representing the seven months of payments he failed to make while this case was pending in the chancery court. James timely appeals from the chancery court’s order.

STANDARD OF REVIEW

¶ 12. “This Court will not ‘disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.’ ” Burrus v. Burrus, 962 So.2d 618, 621 (¶ 15) (Miss.Ct.App.2006) (quoting Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993)).

DISCUSSION

¶ 13. James cites only one alleged point of error. He admits that the chancellor applied the correct law, but he claims that the chancellor misapplied the facts in reaching the conclusion that there was no mutual support between Donna and Terrance. James did not contest the chancellor’s finding that he faded to prove that a de facto marriage existed between Donna and Terrance. Our review is, therefore, limited to whether it was error for the chancellor to find that Donna overcame the presumption of mutual financial support that arose due to her cohabitation with Terrance.

¶ 14. “Periodic alimony may be terminated based on cohabitation or a de facto marriage.” Id. at (¶ 17). Furthermore, “proof of cohabitation creates a presumption that a material change in circumstances has occurred.” Scharwath v. Scharwath, 702 So.2d 1210, 1211(¶7) (Miss.1997). “This presumption will shift the burden to the recipient spouse to come forward with evidence suggesting that there is no mutual support within his or her de facto marriage.” Id. The application of such a presumption was a modification to the existing law concerning alimony. Id. In Scharwath, the supreme court reversed and remanded the case to allow the chancellor to consider whether the presumption of mutual support had been overcome. Id. at 1212(¶ 8).

¶ 15. The presumption of mutual support was applicable in this case because the parties stipulated to the fact that Donna and Terrance had been cohabiting for approximately one year at the time of trial. However, the present case is distinguishable from Scharwath because the chancellor applied the presumption and also considered whether Donna managed to overcome it. In doing so, the chancellor specifically found that she successfully overcame the presumption.

¶ 16. However, James argues that the chancellor failed to assign value to the in-kind services that Terrance provided to Donna, which he argues constituted support of Donna. He cites Tedford v. Dempsey, 437 So.2d 410, 422 n. 11 (Miss.1983) in support of his argument. In Tedford, the supreme court found that a spouse’s in-kind service contributions should be assigned a “reasonable monetary value” and considered as part of the contribution to child support. Id.

¶ 17. In this case, the chancellor recognized that Terrance performed a significant amount of work around the house for Donna. Despite that work, the chancellor found that the evidence did not establish that Donna and Terrance provided mutual financial support to trigger a modification of alimony. Instead, the chancellor found that Terrance’s services at Donna’s house were performed as part of an agreement that he had with Donna — that Terrance could stay at the house in exchange for doing yard work and other things around the house that Donna was unable to do.

¶ 18. The burden was on Donna to prove that she and Terrance did not mutually support each other. In this case, we do not find that the evidence that Donna presented was sufficient to overcome the presumption. To the contrary, the majority of Donna’s testimony indicated that she and Terrance did support each other. Their situation was the epitome of mutual financial support — Donna provided Terrance a place to live, and Terrance took care of her and did most, if not all, of the yard and house work. Each provided a sendee, and the other received the value of that service. Terrance was also unemployed for a good portion of the time he had lived with Donna. At the time of trial, they worked together at the same job, with Terrance working one day per week and earning, at most, $80 per month. They also admitted to being in a sexual relationship, and they went to a couple of social outings together.

¶ 19. While the chancellor has much discretion in deciding family-law matters, we find that the evidence in the present case overwhelmingly points to the conclusion that Donna and Terrance cohabited and mutually supported each other. Therefore, we find that the chancery court manifestly erred in finding that Donna and Terrance’s arrangement — living together, engaging in a sexual relationship, and financially supporting each other — did not amount to mutual support. We reverse the chancery court’s judgment and render judgment terminating James’s obligation to pay Donna permanent periodic alimony. James’s obligation to pay Donna the ordered lump-sum alimony payments remains intact because such an award is already vested and, therefore, nonmodifiable. West v. West, 891 So.2d 203, 212(¶22) (Miss.2004) (citations omitted). Furthermore, finding that the chancellor has the authority to decide whether to make the termination of alimony retroactive to the date that James filed his petition, we remand the case to the chancery court for such a determination. See Shearer v. Shearer, 540 So.2d 9, 12 (Miss.1989); Austin v. Austin, 981 So.2d 1000, 1006-07(¶ 23) (Miss.Ct.App.2007).

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF LINCOLN COUNTY IS REVERSED AND RENDERED IN PART AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND MAXWELL, JJ., CONCUR.

CARLTON, J., NOT PARTICIPATING.


author: GRIFFIS, J., for the Court.

text:
    Lois KAIGLER, on her behalf and that of her Minor Child, Leshan Kaigler, Appellant v. The CITY OF BAY ST. LOUIS, Mississippi and The VCJ Gym, Appellees.
    No. 2008-CA-00640-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Matthew Louis Pepper, attorney for appellant.
    Brenda G. Long, Edward C. Taylor, Kristi R. Rogers, Gulfport, attorneys for appellees.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Lois Kaigler, individually and on behalf of her minor child, Leshan Kaigler, brought suit against the City of Bay St. Louis, Mississippi (“the City”) and the VJC Gym (“Gym”) for personal injuries that Leshan sustained at the Gym. The circuit court granted summary judgment in favor of the City and the Gym. Kaigler appeals and argues that the City and the Gym are not entitled to statutory immunity and that there is a genuine issue of material fact concerning the City’s failure to comply with the Mississippi Fire Prevention Code (“MFPC”). We find no error and affirm.

FACTS

¶ 2. On December 11, 2002, twelve-year-old Leshan accompanied his older sister to her basketball practice at the Gym. He brought his basketball with him and hoped that he would get to shoot. While at the Gym, two older boys took Leshan’s ball from him and threw it into the false ceiling where ceiling tiles were missing. One of the boys retrieved the ball for Leshan, but the other boy threw it back into the false ceiling. When both boys refused to get the ball, Leshan climbed up a wall and into the false ceiling. The ceiling tiles gave way, and Leshan fell ten to twelve feet to the concrete floor. Leshan suffered injuries to his cervical spine and neck.

¶ 3. Kaigler filed suit alleging that Lesh-an’s injuries were due to the City’s and the Gym’s negligence because they: (1) allowed a dangerous condition to exist for an unreasonable length of time, (2) failed to repair and/or renovate the property, (3) knew or should have known of the dangerous hazard of the building, (4) failed to adequately maintain the premises in a safe condition, and (5) failed to properly supervise the children.

¶ 4. The City submitted affidavits from three city officials stating that to their knowledge there was no “statute, regulation or ordinance, that was in effect on December, 11, 2002, or at another time, that imposed a duty or otherwise directed [the City] as to how to maintain or operate the [Gym] or mandated supervision of the activities that transpired at the Gym.”

¶ 5. The City and the Gym moved for summary judgment. At the summary judgment hearing, Kaigler responded to the City’s affidavits by claiming that as political subdivision of the State of Mississippi, the City was subject to the MFPC and that the City had failed to ensure that the Gym complied with the MFPC. The circuit court granted the City’s and the Gym’s motion for summary judgment.

STANDARD OF REVIEW

¶ 6. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment when there are no genuine issues of material fact so that the moving party is entitled to judgment as a matter of law. To determine if there are genuine issues of material facts, the trial court may look beyond the pleadings. Grant v. State, 686 So.2d 1078, 1091 (Miss.1996). This Court will review a decision to grant summary judgment de novo. Hernandez v. Vickery Chevrolet-Oldsmobile Co., 652 So.2d 179, 181 (Miss.1995). If any triable issues of material fact exist, the lower court’s decision to grant summary judgment will be reversed; otherwise, the decision will be affirmed. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). This Court views the evidence in the light most favorable to the non-moving party, which in this case is Kaigler. Turner v. Johnson, 498 So.2d 389, 390 (Miss.1986).

ANALYSIS

1. Are the City and the Gym entitled to statutory immunity?

¶ 7. The circuit court found that the maintenance and operation of the Gym was a discretionary function. Therefore, the City was immune from this claim under Mississippi Code Annotated section 11 — 46—9(1)(d) (Supp.2008). Kaigler asserts that the City and Gym are not entitled to statutory immunity under section 11-46-9 because: (1) under Mississippi’s premises liability law, Leshan was an invitee and entitled to an ordinary standard of care; (2) the defendants had a duty to adequately supervise the children; and (3) the operation and maintenance of the Gym were not discretionary.

A. Premises Liability under the MTCA

¶ 8. Kaigler argues that: (1) Leshan was an invitee not a trespasser, and (2) the room where Leshan fell was in an unsafe condition. The City and the Gym assert that they are immune under Mississippi Code Annotated section ll-46-9(l)(v) (Supp.2008).

¶ 9. The circuit court found that Leshan was a trespasser when he entered the ceiling and that the only duty the City owed to him was to refrain from willfully or wantonly injuring him. Accordingly, the circuit court found that there was no liability because the City and the Gym did not do anything to willfully or wantonly injure Leshan.

¶ 10. If this case were not against a governmental entity, Kaigler’s claim would be considered under our law of premises liability. Leshan’s status at the Gym, at least in the beginning, was that of an invitee. A business owner (the Gym) owes a business invitee (Leshan) a duty of ordinary care to keep the business premises in a reasonably safe condition. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986). The owner has a duty to warn invitees of dangerous conditions that are not apparent to the invitee, of which the owner or occupier knows or through the exercise of reasonable care should know. Id. However, the owner is not an insurer against all injuries that may occur on the premises. Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988).

¶ 11. However, since the Mississippi Tort Claims Act (MTCA) grants immunity to governmental entities under certain circumstances, we must consider whether section 11-46-9(1)(v) is applicable. Under this statute, Kaigler may defeat the City’s immunity defense if she can prove: (1) a dangerous condition, (2) on the governmental entity’s property, (3) which the governmental entity caused by negligence or wrongful conduct, or of which it had actual or constructive notice and adequate time to protect from or warn against, and (4) the condition was not open and obvious to one exercising due care. Miss.Code Ann. § 11-46-9(1)(v); see also Lowery v. Harrison County Bd. of Supervisors, 891 So.2d 264, 267(¶ 12) (Miss.Ct.App.2004).

¶ 12. Kaigler does not discuss the elements necessary to defeat immunity under section 11-46-9(1)(v); instead, she focuses on whether Mississippi has abolished the open and obvious standard in premises liability cases. We address this sub-issue before addressing whether she can defeat the City’s immunity under section 11-46-9(1)(v).

¶ 13. After Mississippi adopted the doctrine of comparative negligence, the supreme court “abolish[ed] the ‘open and obvious’ defense which acts as a complete bar on recovery in negligence actions. However, actions brought against an entity invoking the protection of the Mississippi Tort Claims Act differ from the general negligence action.” Howard v. City of Biloxi, 943 So.2d 751, 756(¶ 16) (Miss.Ct.App. 2006) (citing Tharp v. Bunge Corp., 641 So.2d 20, 24 (Miss.1994)). In a suit against a governmental entity for injuries caused by a dangerous condition on its premises, a plaintiff must make a showing of the entity’s failure to warn. Id. However, “[t]he open and obvious defense is an absolute bar to recovery in a case brought under the [MTCA] for the failure to warn of a dangerous condition.” Id.

¶ 14. Under section ll-46-9(l)(v), Kaigler must first prove that Leshan’s injury was caused by a dangerous condition. Kaigler alleges that the room was in general disrepair; however, she fails to explain how missing ceiling tiles and clutter in the room created the alleged dangerous condition that resulted in Leshan’s fall.

¶ 15. The ceiling, in and of itself, was not a dangerous condition for Leshan when he was standing on the floor. Presumably, a dangerous condition was created when Leshan climbed up a wall and started to crawl across the false ceiling. Once Leshan was in the false ceiling, there may have been a dangerous condition on governmental property. However, Kaigler cannot prove that the City or the Gym had actual or constructive notice that Leshan had climbed into the false ceiling and was in danger of falling to the floor or that there was adequate time to protect or warn against this danger. Furthermore, the danger of falling through the ceiling tiles was open and obvious to anyone exercising due care. Kaigler’s claim that some of the tiles were missing or broken further supports our conclusion that the danger of falling through the false ceiling was an open and obvious danger. Therefore, we find that Kaigler does not defeat the City’s and Gym’s immunity under section 11-46-9(l)(v).

¶ 16. Although the circuit court used Leshan’s status as a trespasser, not section 11-46-9(1)(v), to determine that the City and the Gym were not liable for his injuries, we agree with the circuit court’s result. “On appeal, we will affirm a decision of the circuit court where the right result is reached even though we may disagree with the reason for that result.” Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993) (citing Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988)). This issue is without merit.

B. Failure to Supervise

¶ 17. Kaigler claims that the Gym is required to provide supervision because it is akin to a public school which has an obligation to adequately supervise students. The City and the Gym respond that decisions concerning supervision are discretionary, and they are immune under section 11 — 46—9(1) (d).

¶ 18. In support of her argument, Kaigler quotes L.W. v. McComb Separate Municipal School District, 754 So.2d 1136, 1142(¶ 26) (Miss.1999) as follows: “Public officers and administrators are protected by sovereign immunity, if and only if, they used ordinary care in controlling and disciplining youth in their care and control.” We find that supreme court actually said, “the teachers and administrators here are then protected by sovereign immunity if and only if they used ordinary care in controlling and disciplining their students.” Id. Kaigler’s substitution of the term public official for teacher and youth for students is misleading. Kaigler cites no authority to support her conclusion that a Gym should be held to the same standard as a school.

¶ 19. Kaigler cites Summers v. St. Andrew’s Episcopal School, 759 So.2d 1203 (Miss.2000) for the proposition that a public entity is required to supervise youth activities. The supreme court’s holding in Summers addressed the board of education’s obligation and does not extend to all public entities. The supreme court said that “[a]lthough a board of education is not an insurer of the safety of its students, there is an obligation to supervise adequately the activities of students within its charge.” Id. at 1214(¶47) (citation omitted).

¶20. Kaigler has not pointed to any statute that imposes a duty on the City or Gym to supervise. Therefore, Mississippi Code Annotated section ll-46-9(l)(b) (Supp.2008) does not apply, because it exempts actions that “[arise] out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid.”

¶ 21. The City and the Gym argue that the decision whether or not to supervise was discretionary and entitled the entities to immunity under section 11-46-9(l)(d) which grants the governmental entity immunity when the function or duty is discretionary.

¶ 22. This Court uses a two-part public policy function test to determine “whether governmental conduct is discretionary so as to afford governmental entity immunity.” Dotts v. Pat Harrison Waterway Dist., 933 So.2d 322, 326(¶ 9) (Miss.Ct.App.2006) (citation omitted). “The test requires a determination of (a) whether the activity involves an element of choice or judgment, and if so, then it must be determined (b) whether the choice or judgment involves social, economic, or political policy.” Id. (citations omitted).

¶ 23. The City’s decisions of whether to open the Gym and whether to provide supervision were not mandated by statute. Rather, the City chose to open the Gym to the public and used its judgment to determine the most effective use of the Gym once it was open to the public. This choice satisfies part (a) of the two-part public policy function test. Because the social value and economic cost of operating the Gym and supervising the activities at the Gym go into determining the most effective use of the Gym, part (b) of the test is also satisfied. We find that the City is entitled to immunity under section 11-46-9(l)(d) because the supervision at the Gym was a discretionary function.

¶ 24. Kaigler also argues that the City was required to use ordinary care under section 11-46-9(1)(d). We disagree. In Collins v. Tallahatchie County, 876 So.2d 284, 289(1117) (Miss.2004), the supreme court specifically stated that the “ordinary care standard is not applicable to [section] 11-46-9(1)(d)

¶ 25. This issue is without merit.

2. Is there a genuine issue of material fact concerning the City’s failure to comply with the MFPC?

¶ 26. Kaigler argues that the City and the Gym had a statutory duty to comply with the MFPC, under Mississippi Code Annotated section 45-11-101 (Supp. 2008). The City and the Gym respond that: (1) the Gym was not in violation of the MFPC; (2) their actions were not the proximate cause of the injury; and (3) they are immune under Mississippi Code Annotated section 11^16-9(l)(c) (Supp.2008) which exempts “the performance or execution of duties or activities relating to police or fire protection.”

¶ 27. The “[m]ere allegation or denial of material fact is insufficient to generate a triable issue of fact and avoid an adverse rendering of summary judgment. More specifically, the plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1356 (Miss.1990) (internal citations and quotation omitted).

¶28. In its opinion, the circuit court noted that Kaigler argued that the false ceiling violated the MFPC, but that she failed to “submit affidavits or other evidence to establish the applicability of the codes or how any alleged violation caused or contributed to Leshan’s fall.”

¶29. The City and the Gym do not dispute that the Gym was subject to the MFPC, but they argue that they were in compliance with the MFPC. At the summary judgment hearing, the City attempted to call the fire inspector to testify whether the ceiling was in compliance with the MFPC. However, Kaigler objected and said that she should have the opportunity to depose the fire inspector. Kaigler did not depose the fire inspector — or anyone else — about whether the ceiling complied with the MFPC. Instead of producing an expert affidavit to support her claim, Kai-gler relied on her attorney’s opinion that the missing tiles in the false ceiling violated the MFPC. Thus, we find that Kaigler failed to show that there was a triable issue of fact concerning whether the City violated the MFPC.

¶ 30. Furthermore, in order to prevail on her negligence claim, Kaigler had to prove not only that the City was negligent — which she did not — but also that Leshan’s injury was proximately caused by the City’s negligence. “In order for an act of negligence to proximately cause the damage, the fact[-]finder must find that the negligence was both the cause in fact and legal cause of the damage.” Glover v. Jackson State Univ., 968 So.2d 1267, 1277(¶ 31) (Miss.2007). “A defendant’s negligence is the cause in fact of a plaintiffs damage where the fact[-]finder concludes that, but for the defendant’s negligence, the injury would not have occurred.” Id. at (¶ 32). The defendant’s negligence is the legal cause if the “damage is the type, or within the classification, of damage the negligent actor should reasonably expect (or foresee) to result from the negligent act.” Id. at (¶ 33).

¶ 31. Kaigler failed to show how the City’s alleged negligence was the proximate cause of Leshan’s injury. During the summary judgment hearing, the circuit court specifically asked Kaigler’s attorney about causation and whether it was foreseeable that Leshan would crawl into the false ceiling. Kaigler’s attorney responded that when one is dealing with a child you must expect the unexpected. While a motorist does have a “duty to expect children to do the unexpected, to understand that they may do the ununderstandable and unpredictable, and will act upon a second’s impulse,” Mississippi law does not impose this duty in every situation upon all people. Bland v. Briggs, 512 So.2d 894, 896 (Miss.1987) (quoting McGee v. Bolen, 369 So.2d 486, 492 (Miss.1979)). This duty is limited to motorists.

¶ 32. We conclude that Kaigler failed to prove that: (1) there was a material issue of fact concerning the City’s and Gym’s compliance with the MFPC, and (2) the City or Gym was the proximate cause of Leshan’s injury. Therefore, we do not reach the City’s defense that the MFPC constitutes “the performance or execution of duties or activities relating to police or fire protection,” affording their actions immunity under section 11 — 46—9(l)(c).

¶ 33. This issue lacks merit.

¶ 34. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ, IRVING, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., NOT PARTICIPATING.


author: CARLTON, J., for the Court.

text:
    Myron POLLARD, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-00679-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Cheryl Ann Webster, Clarksdale, Attorney for Appellant.
    Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

      Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. On July 13, 2007, Myron Pollard pled guilty to one count of possession of cocaine and one count of possession of marijuana and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). On September 6, 2007, Pollard filed a motion to set aside his guilty plea and demanded a new trial. The circuit court dismissed Pollard’s motion for lack of jurisdiction. Pollard appeals.

FACTS

¶ 2. A Coahoma County grand jury indicted Pollard for possession of cocaine pursuant to Mississippi Code Annotated section 41-29-115 (Supp.2008) and for possession of marijuana pursuant to Mississippi Code Annotated section 41-29-139 (Rev. 2005). Pollard pled guilty to both counts on July 13, 2007. The circuit court entered an order on August 30, 2007, sentencing Pollard to a term of fifteen years in the custody of the MDOC. On September 6, 2007, Pollard filed a motion to vacate his guilty plea, and within that motion he also requested a new trial. On March 12, 2008, the circuit court dismissed Pollard’s motion to vacate his guilty plea and his request for a new trial.

¶ 3. The circuit court found it was without jurisdiction to review Pollard’s motion outside the term of court, which had ended on August 17, 2007. Pollard appeals the circuit court’s dismissal of his motion. In turn, we dismiss Pollard’s appeal for lack of jurisdiction, finding, as the circuit court did, that the correct vehicle for Pollard’s request is a petition for post-conviction relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act. Miss.Code Ann. § 99-39-1 to -29 (Rev. 2007).

STANDARD OF REVIEW

¶ 4. Our standard of review on questions of jurisdiction is de novo. Latiker v. State, 991 So.2d 1239, 1240(¶6) (Miss.Ct.App.2008) (citations omitted).

DISCUSSION

¶ 5. Regarding the dismissal of Pollard’s motion to vacate his guilty plea and request for a new trial, the circuit court found that it lacked jurisdiction as Pollard filed his motion on September 6, 2007, and the circuit court’s term of court had ended on August 17, 2007. “[I]n the absence of a statute authorizing a modification of a sentence, once a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.” Payne v. State, 966 So.2d 1266, 1269(¶ 11) (Miss.Ct.App.2007) (quoting Presley v. State, 792 So.2d 950, 954(¶ 18) (Miss.2001)). Here, no statute saves Pollard’s motion.

¶ 6. For the above reasons, we dismiss Pollard’s appeal for lack of jurisdiction. However, we note, as the circuit court did, that Pollard may pursue post-conviction relief pursuant to section 99-39-1 to -29.

¶ 7. THE APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


text:
    Larry W. BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00789-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.
    Larry W. Brown, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Larry W. Brown appeals the circuit court’s denial of his motion for post-conviction collateral relief. He argues that: (1) the circuit court improperly allowed the State to amend the indictment, and (2) he received ineffective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. Brown was indicted for one count of manufacturing a controlled substance— marijuana—and one count of possession with intent to sell, transfer, or distribute more than one kilogram of marijuana. On November 17, 2005, Brown entered a guilty plea to both counts. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections for each count, with the two sentences to run concurrently. Five years of each count were suspended, and Brown was placed on five years of post-release supervision.

¶ 3. Thereafter, Brown filed his motion for post-conviction collateral relief. The motion was denied. From this ruling, he appeals.

STANDARD OF REVIEW

¶ 4. A circuit court’s denial of post-conviction collateral relief will not be reversed absent a finding that the court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct. App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

1. Amended Indictment

¶ 5. Brown argues that the circuit court improperly allowed the State to amend the grand jury indictment against him. Specifically, he contends that the amendment was substantive in nature and should have been determined by the grand jury, not the circuit court. The State responds that the errors corrected by the amendment were merely clerical in nature and did not affect the substance of the charges in the indictment.

¶ 6. Our supreme court has held that “a guilty plea waives any claim to a defective indictment.” Harris v. State, 757 So.2d 195, 197(¶ 9) (Miss.2000) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). Brown pleaded guilty to both counts subsequent to the amendment of his indictment. He thereby waived the assignment of error that he now asserts. Such waiver notwithstanding, we find that the amendment of his indictment was valid.

¶ 7. Brown’s original indictment was labeled a multi-count indictment under Mississippi Code Annotated section 99-7-2 (Rev.2007). Count I of the original indictment charged that Brown:

unlawfully, willfully, feloniously, knowingly and intentionally, without authority of law, manufaeture[d] a controlled substance, to-wit 2,092.7 grams of marihuana, which is a Schedule I controlled substance as provided for by Section 41-29-113(c)(12) of the Mississippi Code of 1972, Annotated, as amended, said amount of marihuana being more than one (1) kilogram, in violation of the provisions of Section 41-29-139(a)(l) of the Mississippi Code of 1972, Annotated, as amended, which offense is punishable by imprisonment not exceeding thirty (30) years and by a fine of not less than One Thousand Dollars ($1,000.00) nor more than One Million Dollars ($1,000,000.00) or both,....

¶ 8. The indictment then listed a second, separate count; however, the second count was erroneously labeled Count I instead of Count II. That count charged that Brown:

unlawfully, willfully, feloniously, knowingly and intentionally, without authority of law, have in his/her possession a certain controlled substance, to-wit 1,183.9 grams of marihuana, which is a Schedule I controlled substance as provided for by Section 41-29-113(c)(12) of the Mississippi Code of 1972, Annotated, as amended, said amount of marihuana being more than one (1) kilogram, with the unlawful and felonious intent to sell, transfer or distribute the said controlled substance, in violation of the provisions of Section 41-29-139(a) of the Mississippi Code of 1972, Annotated, as amended, which offense is punishable by imprisonment not exceeding thirty (30) years and by a fíne of not less than One Thousand Dollars ($1,000.00) and not exceeding One Million Dollars ($1,000,000.00) or both,....

¶ 9. Brown filed a motion to dismiss based on certain discrepancies in the indictment. The State filed a motion to amend the indictment. A hearing was held by the circuit court on both motions.

¶ 10. The error contained in the indictment was the statement that marijuana is a Schedule I controlled substance under Mississippi Code Annotated section 41-29-113(c)(12) (Rev.2005). In fact, the correct citation is section 41-29-113(c)(14). The citation used in the indictment refers to the Schedule I controlled substance ibo-gaine. Thus, in both counts, the indictment referred to the substance as marijuana but cited the statute section referencing ibogaine.

¶ 11. The circuit court allowed the State to amend the indictment to correct the erroneous citation, finding that the language in the indictment was sufficient to place Brown on notice of his charges such that he could prepare his defense. We agree. As the State argues, the corrected citation did not change the substance of the crime charged or affect Brown’s defense strategy; thus, the circuit court did not err by allowing the amendment and denying Brown’s motion to dismiss.

¶ 12. This very issue was addressed in Cowan v. State, 399 So.2d 1346, 1351 (Miss.1981), where the supreme court held that it was proper to allow the State to amend an indictment containing the incorrect citation for the charged offense. The citation to the applicable code section was surplusage and unnecessary when the charged offense was certainly and substantially described. Id.

¶ 13. Furthermore, “[a]ll indictments may be amended as to form but not as to the substance of the offense charged.” URCCC 7.09. The supreme court has held that:

a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant’s case. The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment is made.

Greenlee v. State, 725 So.2d 816, 822(¶ 10) (Miss.1998) (internal citations and quotation omitted).

¶ 14. Brown’s original indictment clearly stated that the controlled substance at issue was marijuana. At his plea hearing, Brown admitted under oath that he was growing marijuana at his residence. Brown was fully aware that bags of marijuana, marijuana plants, and other items used to grow and package marijuana had been confiscated from his home. We find that the corrected citation did not alter the essential facts of the offense, nor did it prejudice Brown’s defense. Accordingly, this issue is without merit.

2. Ineffective Assistance of Counsel

¶ 15. Brown next asserts that he would not have entered a guilty plea but for the errors of his counsel. He claims that he lied to the circuit judge during his plea hearing because his counsel told him that he would receive a sentence of sixty years if he did not plead guilty. He further asserts that his counsel advised him that he would receive probation in exchange for a guilty plea.

¶ 16. To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests -with the defendant to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 17. Brown offers nothing more than his own assertions to prove any deficiency on the part of his counsel. In fact, his statements made under oath at his plea hearing wholly contradict the assertions he now brings on appeal. He testified that he was satisfied with the work of his counsel, and his counsel reviewed his plea petition with him that he signed and submitted to the circuit court. Accordingly, this issue is without merit.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: ROBERTS, J, for the Court.

text:
    Richard C. LENOIR, Sandra Shakelford and Miles Randall Ezell, Appellants v. William “Bill” ANDERSON and William Yawn, Jr., Appellees.
    No. 2008-CA-00148-COA.
    Court of Appeals of Mississippi.
    June 30, 2009.

      Robin L. Roberts, Paul Bryant Caston, Hattiesburg, attorneys for appellants.
    Lee Turner, Matthew W. O’Quain, attorneys for appellees.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J, for the Court.

¶ 1. This appeal arises from a property dispute over the boundaries of the Bounds Family Cemetery located in Lamar County, Mississippi. Richard Lenoir, Sandra Shakelford, and Miles Ezell (Miles), (collectively the Plaintiffs) heirs of Ephraim Bounds, brought suit in the Chancery Court of Lamar County to determine the rights of the parties to approximately 1.8 acres of land. The chancery court found that the entire 1.8 acres were to be burdened for use as a cemetery and entered a judgment in favor of the Defendants, William Anderson and William Yawn. The Plaintiffs filed multiple post-trial motions seeking either a new trial or amendment of the judgment. All post-trial motions were denied, and the Plaintiffs now appeal. Finding no error in the chancellor’s decision, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Bounds acquired approximately forty acres of land in Lamar County from his brother, who had inherited the land from their father in 1882. Sometime after the conveyance, for a period of ten to fifteen years, Bounds lived in Texas and Louisiana, but he later returned home to Mississippi. Shakelford, Bounds’s granddaughter, testified that prior to returning to Mississippi to live, Bounds had buried his mother-in-law, Sarah Mason, behind his Mississippi home. By the time Bounds returned to Mississippi to remain, there were several other grave sites as well, so, at that time, he decided to move his home to another location. Later, a fence was erected around the area where the graves were located. The site where those early graves were located is the same .51 acre where the Bounds Family Cemetery is located today. At the time of trial, there were about 80 grave sites within the cemetery. Around 1914, Bounds designated approximately one acre for a family cemetery and one acre for a family school; the two acres are not contiguous but are in close proximity to each other. According to Shakelford’s testimony, Bounds memorialized his benevolent intentions in a will. The school never fully came to fruition, and it was abandoned after the family began utilizing public education. The land designated for the school has remained unproductive ever since. Regrettably, a copy of the will or other document, such as a deed, specifically stating Bounds’s intentions for future use, should the property cease to be used for its intended purposes, was not presented at trial, nor was it included in the record. However, other deeds recognizing the family cemetery were presented at trial. Since the cemetery, encompassing .51 acre, has been continually used for the Bounds family, as well as friends of the Bounds family, the remaining 1.3 acres are at the heart of this dispute.

¶ 3. In 1938, Bounds conveyed an undivided half interest of the forty acres to his wife, and the land ultimately vested in this generation of heirs. After acquiring an interest in the property, Doris Bounds Ezell, Bounds’s youngest child and the mother of Miles, paid the taxes on the 1.8 acres. However, after her death, her estate and sons, David and Miles, failed to pay the property taxes on the 1.8 acres, and Miles was contacted by the Lamar County Tax Collector, Mr. Patterson, who informed him that the property was about to be sold for the unpaid taxes. Patterson told Miles that “[t]he only way [to] ... ensure that nobody [bought] it from the family [was] to make it a historical cemetery.” Patterson presented the matter to the Lamar County Board of Supervisors (Board of Supervisors), and the property was indeed designated as a historical cemetery. The entire 1.8 acres were designate ed as a historical cemetery; the property was then excluded from the county’s tax rolls; and the owners have benefitted from the tax exempt status since 1991. Miles testified that he did not attend the Board of Supervisors’ meeting, and that he was not told about the designation and tax exempt status until after the meeting. Still, neither he, nor any other plaintiff, ever made any objection to the property’s designation as a historical cemetery.

¶4. Thereafter, David, Miles’s brother, conveyed his interest in the cemetery property to Anderson and Yawn through a cemetery warranty deed. Anderson testified that some of his ancestors were buried in the cemetery, and he and his family had helped maintain the cemetery since 1959. In 1994, Miles, Anderson, and Yawn raised money and constructed a new chain link fence around the cemetery because the original wooden fence had fallen into disrepair. Anderson testified that, at the time the new fence was erected, he wanted to extend the fenced area because it was common knowledge within the community that Bounds had left the entire 1.8 acres for cemetery use. Miles was hesitant and stated, “let’s just extend it out ... on all four sides and let the next generationf ] deal with it.” Despite Miles’s hesitancy, family tensions have caused this generation to deal with the matter.

¶ 5. When David conveyed his interest in the property to Anderson and Yawn, the intent was for them to continue to maintain the cemetery and provide additional burial space for family members of persons already buried there. Contending that the cemetery was not to extend past the original fenced area, the Plaintiffs brought suit in the Chancery Court of Lamar County to determine the rights of the parties to the entire 1.8 acres. After considering the actions of the Bounds family, their friends and neighbors, and the families of all of those buried in the Bounds Family Cemetery, the chancellor determined that a preponderance of the evidence established that the entire 1.8 acres were burdened with a limitation of use for cemetery purposes and should remain available for such purposes in the future. Aggrieved by the chancellor’s decision, the Plaintiffs now appeal.

STANDARD OF REVIEW

¶ 6. “[This] Court employs a limited standard of review on appeals from chancery court.” Reddell v. Reddell, 696 So.2d 287, 288 (Miss.1997) (citation omitted). “[T]his Court will accept the chancellor’s finding[s] of fact as long as the evidence in the record reasonably supports those findings.” In re Estate of Chambers v. Jackson, 711 So.2d 878, 880(¶8) (Miss.1998) (citation omitted). “That means we will not disturb the findings of a chancellor unless those findings are clearly erroneous or an erroneous legal standard was applied.” Lee Hawkins Realty, Inc. v. Moss, 724 So.2d 1116, 1118(¶8) (Miss.Ct.App.1998). However, “[w]hen presented with a question of law ... we conduct a de novo review.” In re Will of Carney v. Carney, 758 So.2d 1017, 1019(¶ 8) (Miss.2000).

DISCUSSION

¶ 7. The Plaintiffs raise the following issues on appeal: (1) whether the chancery court erred in its decision to use extrinsic evidence and mere conjecture to construe an unambiguous deed, (2) whether the chancery court erred in treating the Board of Supervisors’ property tax exemption of cemetery property as a grant of land, and (3) whether the chancery court’s opinion failed to adequately adjudicate the rights of the parties in regard to the location of the cemetery. As they may be consolidated, we will address Issues I and II together.

I. THE TRIAL COURT’S USE OF EXTRINSIC EVIDENCE

¶ 8. Bounds’s will of 1914 was not presented at trial, nor was it included in the record. Also, the warranty deed to Marguerite simply stated that “less than two acres were for cemetery purposes.” As a result, there was, and is, no way to discern what Bounds’s intentions were without considering extrinsic evidence. The law is clear about the construction of deeds or contracts. The supreme court has stated the following:

The rules for the construction of deeds or contracts are designed to ascertain and to follow the actual or probable intention of the parties and are [as follows]: When the language of the deed or contract is clear, definite, explicit, harmonious in all its provisions, and free from ambiguity throughout, the court looks solely to the language used in the instrument itself, and will give effect to each and all of its parts as written. When, however, the language falls short of the qualities above mentioned and resort must be had to extrinsic aid, the court will look to the subject matter embraced therein, to the particular situation of the parties who made the instrument, and to the general situation touching the subject matter, that is to say, to all the conditions surrounding the parties at the time of the execution of the instrument, and to what, as may be fairly assumed, they had in contemplation in respect to all such said surrounding conditions, giving weight also to the future developments thereinabout which were reasonably to be anticipated or expected by them; and when the parties have for some time proceeded with or under the deed or contract, a large measure, and sometimes a controlling measure, of regard will be given to the practical construction which the parties themselves have given it, this on the common sense proposition that actions generally speak even louder than words.

Farragut v. Massey, 612 So.2d 325, 329 (Miss.1992) (emphasis added) (citation omitted). With this in mind, we look to case law to determine if the chancellor acted within his discretion when he determined that the entire 1.8 acres should be used for benevolent, or eleemosynary, purposes rather than allowing the land to revert to the Plaintiffs.

¶ 9. In Nicholson v. Myres, 170 Miss. 441, 448, 154 So. 282, 283 (1934), a case in which land was left to the City of Natchez for use as a cemetery, the supreme court stated that “[the] failure of the city to use the land as a cemetery did not cause it to revert to the grantor or his heirs; that the title to land sold and conveyed for a designated use will not revert to the grantor or his heirs upon being put to another or different use, in the absence of express terms in the deed providing for reversion.” (Emphasis added). It is an old and established principle in property law that a possibility of a reverter to the grantor or his heirs must be expressly stated in the instrument. The supreme court stated a century ago that “[i)n order that a condition subsequent may be created, the breach of which will cause the land conveyed to revert to the grantor, it must clearly appear that such was the grantor’s intention.” Soria v. Harrison County, 96 Miss. 109, 114, 50 So. 443, 444 (1909) (citation omitted). The Soria court found that in the absence of technical words such as “provided, so long as, until, [and] etc.” that a condition subsequent was not created. Id. The court went on to state that “[n]o right of re-entry was reserved by the grantor on any contingency- [Therefore,] [t]he authorities show that the recital of the consideration and a statement of the purpose for which the land is to be used are wholly insufficient to create a conditional estate.” Id. at 115, 50 So. at 444.

¶ 10. In another analogous case, in which land was given for use as a courthouse and prison but it was no longer being used for those purposes, the United States Supreme Court stated, “if we disregard the absence of technical terms or provisions importing a condition or limitation, and examine the deed with a view of eliciting the clear intention of the parties, we are driven to the conclusion that it was the intention of the grantors to convey their entire estate in the land.” Stuart v. Easton, 170 U.S. 383, 398, 18 S.Ct. 650, 42 L.Ed. 1078 (1898). In other words, the court will try to determine the intent of the person who made the devise, and if there is no express language in the instrument for the property to revert back to the grantor or his/her heirs when the property is no longer used for the stated/intended purpose, it will be concluded that the grantor intended to convey his entire interest in the property. See Tinnin v. First United Bank, 502 So.2d 659, 663 (Miss.1987). Furthermore, the court may look to parol or extrinsic evidence if the grantor’s intentions are not clear from the four corners of the document. Id. at 670. Since the Plaintiffs did not produce the will or evidence that Bounds’s intentions were to retain a reversion in the land, the chancellor was well within his discretion to rely on parol or extrinsic evidence and deny the Plaintiffs’ request that the 1.3 acres, which was not being used for a school, be divided among the heirs or partitioned and sold.

¶ 11. The Plaintiffs rely on the case of Stuart v. Smith, 344 So.2d 127 (Miss.1977), for their contention that the cemetery should be confined to the .51 acre. They argue that Stuart instructs that “the dimensions ... [of] the actual burial ground [should] govern.” We disagree. The StuaH case addressed a dispute over the use of a quarter of an acre surrounding a cemetery of antiquity. Id. at 128. In Stuart, the grantor conveyed land by a warranty deed that contained the following language: “Excepting and reserving therefrom one quarter of an acre in square form surrounding the present graveyard with necessary rights to and from said graveyard at any and all times for the use of the heirs of M.C. Stuart, deceased.” Id.

¶ 12. Although the deed in StuaH, as in the instant case, did not contain a legal description of metes and bounds, the court adopted the perimeter of the cemetery depicted on a drawn map. Id. Also, resistivity tests were done by an archeologist and a civil engineer to ascertain where the actual grave sites were located. Id. at 129. The court determined that the cemetery should be confined to what it was at the time of the conveyance, and that the grant- or had intended to maintain an easement for the graveyard. Id. at 180. In other words, the court maintained the easement around the cemetery. We do not find that Stuart contradicts the chancery court’s holding in the instant case, as the Stuart court simply tried to discern the grantor’s intentions and then continued the intended charitable use. Stuart differs from the instant case in the following ways.

¶ 13. First, unlike the parties in Stuart, the parties in the instant case have not presented a deed from which the court can consider whether any similar excepting and reserving language exists, or whether any other language supports an argument for or against the restriction or expansion of the .51 acre. Second, in Stuart, the quarter-acre at issue, which surrounded the perimeter of the cemetery, was specifically addressed in the deed and related to that cemetery. Here the issue concerns land that was originally intended for a separate charitable use. And third, at the point when litigation ensued, the cemetery in Stuart had not been used for new burials for over sixty years; the Bounds Family Cemetery has been in continuous use, with new grave sites added within the past couple of years.

¶ 14. The holding in Stuart supports the principle that deeds are to be construed according to their plain language if they are unambiguous, and the chancellor may look to parol or extrinsic evidence when they are not. The Stuart court also acknowledged that the descendants or intended beneficiaries of a cemetery should have reasonable use of and access to an established cemetery, and the court addressed the judicially recognized custom of “people ... buryfing] their relatives together or in the same cemetery as far as reasonably possible.” Id. at 129 (quoting Morgan v. Collins Sch. House, 160 Miss. 321, 133 So. 675 (1931)). In the instant case, the deed to Marguerite indicates that Bounds family members have acknowledged that the 1.8 acres were to be used as a cemetery for at least forty-three years, and both the Plaintiffs and the Defendants testified they have family members buried in the cemetery. These facts bolster the chancellor’s decision to expand the boundaries to encompass the unused 1.3 acres.

¶ 15. The instant case does not deal with a gift to an established charity or trust. However, given that Shakelford testified that Bounds’s intentions were for the entire two acres to be used for charitable purposes, we find the doctrine of equitable approximation and/or the cy pres doctrine provides cogent support for the chancellor’s ruling. The supreme court has addressed the problem that arises when the intended purpose for a gift is no longer feasible and stated, “the duty of the court is to carry out the grantor’s intentions .... [And if the original charitable gift or use fails] the property will not revert back to the settlor or his heirs.... ” Miss. Children’s Home Soc’y v. Jackson, 230 Miss. 546, 555, 93 So.2d 483, 487 (1957). The court went on to say that the “[c]y pres [doctrine or the doctrine of approximation] will not be applied where the settlor has made an express provision for an alternative disposition of his property, if the charity as he planned it proves impossible, inexpedient, or impractical.” Id. at 556, 93 So.2d at 487. However, in the absence of an express provision, the doctrine of approximation is a basic part of equity jurisdiction. It is a rule of judicial construction designed to carry out the intention of the donor, and it is applicable to devises. See Carter v. Berry, 243 Miss. 321, 375, 140 So.2d 843, 854 (1962) (citation omitted).

¶ 16. When addressing the abandoned school property, the chancellor stated, “it also might be surmised that [Bounds] wanted, or would have wanted, that land intended for one of his eleemosynary purposes could remain available for the other.” Looking at established case law and the evidence presented in the record, we find that the chancellor did not abuse his discretion, nor was he manifestly wrong when he arrived at the conclusion that the 1.3 acres should continue to be used for charitable purposes. Furthermore, we find that the chancellor was well within his discretion when he considered the Plaintiffs’ acquiescence to the Board of Supervisors’ designation of the property as a tax exempt historical cemetery. Although not completely applicable to the instant case, the chancellor was not too far afield when he touched upon the equitable doctrine of estoppel.

¶ 17. The supreme court has stated, “[t]he principle on which the doctrine of estoppel by conduct rests is that it would be a fraud in a party to assert what his previous conduct had denied, when on the faith of that denial others have acted. When silence becomes a fraud, it will operate as an estoppel.” Staton v. Bryant, 55 Miss. 261, 272 (1877). We do not state that the Plaintiffs’ actions were fraudulent. However, it does not escape us that, although they now maintain that the 1.3 acres for the school were never to be used for a cemetery and should be divided among them, they allowed the Board of Supervisors to designate the entire 1.8 acres as a historical cemetery to protect them from possibly losing the property in a tax sale. They also allowed the Board of Supervisors to shield them from taxes on the property for approximately sixteen years. The Board of Supervisors’ minutes were public record, and as stated, at least one of the Plaintiffs knew that the entire 1.8 acres were designated as a cemetery. As the supreme court has observed, “acquiesce[nce] by ... silence ... amount[s] to a tacit agreement....” York v. Haire, 236 Miss. 711, 715, 112 So.2d 245, 246 (1959). The Plaintiffs’ silence resonates with the sound of agreement.

¶ 18. This view was furthered by the United States Supreme Court in New Jersey v. New York, 523 U.S. 767, 786, 118 S.Ct. 1726, 140 L.Ed.2d 993 (1998). The Supreme Court acknowledged that “[t]he doctrine of prescription and acquiescence ‘is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him; and the inference fairly to be drawn from his silence and neglect, ... [is] his intention to relinquish it.’ ” Id. (citation omitted). The Plaintiffs were content to remain silent and relinquish the responsibilities of ownership for sixteen years in order to maintain the status quo. Therefore, we support the chancellor’s finding that the Plaintiffs’ silence indicates agreement with the designation of the entire 1.8 acres as a historical cemetery.

¶ 19. The Plaintiffs complain that no petition was made by them to the Board of Supervisors to designate the entire 1.8 acres as a cemetery, and they argue that the Board of Supervisors “expropriate[d] private property to establish a private cemetery.” We find that argument is without merit. Mississippi Code Annotated section 41-43-1(2) (Rev.2005) states the following: “The Board of Supervisors of any county is authorized and empowered, upon petition and request to do so, to establish or designate the location of any private family cemetery to be located in the county.” The Defendants correctly argue that the statute at issue does require a petition and request, but it is silent on how the petition must be made.

¶ 20. The record reveals that the Plaintiffs are, at least, in part responsible for the property’s designation as a historical family cemetery. In an effort to keep the property from being sold in a tax sale because of unpaid property taxes, Patterson approached the Board of Supervisors on the Plaintiffs’ behalf and procured forgiveness of the tax debt owed, as well as relief from future taxes. By his own testimony, Miles admitted that he was told before the meeting that the only way Patterson could ensure that the family property was not sold was to have it designated as a family cemetery. Although he may not have personally gone before the Board of Supervisors, Miles knew what Patterson’s intentions were. Accordingly, the Plaintiffs’ argument that a petition was not adequately made to the Board of Supervisors fails. The Board of Supervisors did not act independently of the Bounds family; it acted upon their petition and request via Patterson. This issue is without merit.

II. ADJUDICATION OF THE RIGHTS OF THE PARTIES IN REGARD TO THE LOCATION OF THE CEMETERY

¶21. On appeal, the Plaintiffs argue that the chancellor should have declared the rights of the parties and who could use the cemeteiy. In other words they asked, “who has the right to be buried where?” At the same time the Plaintiffs filed their complaint, they filed a motion for a temporary restraining order requesting that the Defendants be prohibited from “burying, causing to be buried, or giving others permission to be buried on the land conveyed in that Cemetery Warranty Deed_” Their complaint also requested that the “court de-termin[e] the ownership interest and boundaries of the property known as the Bounds Family Cemetery ... [as well as the] ownership interest of the remaining property....” But, in them pleading, the Plaintiffs did not ask the court to determine who “has the right to be buried where?”

¶ 22. “One of the most fundamental and long-established rules of law in Mississippi is that the [appellate court] will not review matters on appeal that were not raised at the trial court level.” Shaw v. Shaw, 603 So.2d 287, 292 (Miss.1992) (citation omitted). At the beginning of the trial, the parties stipulated that ownership of the property was as follows: Miles, one-sixth interest; Shakelford, one-third interest; Lenoir, one-third interest; Anderson, one-twelfth interest; and Yawn, one-twelfth interest. The court acknowledged the Plaintiffs’ contention that the deed to Anderson and Yawn was not valid. However, the court refused to address it finding that only the parties to the document could litigate the matter, and the grantor, David, was not present. Since the ownership of the property had been addressed, the only remaining issues for the court to determine were the boundaries of the cemetery and whether the 1.3 acres outside of the recognized Bounds Family Cemetery could be used as a cemetery; not who had the right to be buried where. Therefore, the issue of whom can be buried in the cemetery and where they may be buried is not properly before this Court.

¶ 23. In the absence of a deed or will from Bounds, the chancellor was correct in looking to extrinsic evidence to determine Bounds’s intentions concerning the future use of the property. Also, in the absence of proof that Bounds intended to maintain a reversion, the chancellor correctly surmised that the 1.3 acres originally intended for a school should continue to be used for eleemosynary purposes. We find that the chancellor’s findings of fact and decree were based upon substantial evidence and sound legal principles. This issue is without merit.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF LAMAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ„ CONCUR. LEE, P.J., NOT PARTICIPATING.

      . The record includes a warranty deed conveying property to Marguerite Bounds Lenoir (Marguerite) in 1966, which, after giving the legal description of the property, stated a limitation that “less than 2 acres [were] for cemetery purposes.’’ Also, there is the cemetery warranty deed from David Ezell (David) to Anderson and Yawn. It includes the same legal description, minus tire stated limitation of two acres for cemetery use. The absence of the stated use on the deed to Anderson and Yawn does not defeat the parties’ intentions of how the property should be used. It was, after all, a "cemetery” warranty deed.

      . The record reflects the following passage quoted from the Lamar County Board of Supervisor’s minutes:
      Doris Bounds was deeded a parcel of land ... which included the subject parcel, and[,] at the that time[,] and is now known as the Bounds Cemetery. Subsequently, Doris Bounds married and became Doris Ezell and died in 1987, and the estate of Doris Ezell was probated and the property divided among the two sons, Miles Ezell and David Ezell.... The subject properly, 1.8 acres, was excluded from the probate, as it had been a cemetery for approximately 100 years.

      . The record does not reflect the first name of Mr. Patterson.

      . See, Thornton v. Natchez, 88 Miss. 1, 17, 41 So. 498, 500 (1906).

      . When dealing with charitable gifts that are no longer feasible, the court may apply the cy pres doctrine. "This is an equitable doctrine under which a court reforms a written instrument with a gift to a charity as closely to the donor’s intention as possible, so that the gift does not fail.” Black's Law Dictionary 173 (3rd pocket ed.2006). Likewise, when dealing with a trust, the court will apply the doctrine of approximation, which "authorizes a court to vary the details of a trust’s administration to preserve the trust and to carry out the donor’s intentions.” Black’s Law Dictionary 221 (3rd pocket ed.2006).