author: GRIFFIS, P.J.,

text:
    Daryl CONNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-00941-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.
    Rehearing Denied Aug. 27, 2013.

      George T. Holmes, Jackson, David Clay Vanderburg, Justin Taylor Cook, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Daryl Conner was convicted of burglary of a dwelling and felony fleeing. He was sentenced as a habitual offender, under Mississippi Code Annotated section 99-19-83 (Rev.2007), to serve life imprisonment. In this appeal, Conner argues that (1) there was insufficient evidence to convict him of the crime of felony fleeing; (2) the circuit court erred when it sentenced him as a habitual offender; (3) the circuit court failed to instruct the jury on the elements of the underlying crime of larceny; and (4) the circuit court erred in the denial of his motion for a new trial. We find no merit to these issues and affirm.

FACTS

¶ 2. On August 18, 2007, Mary Campbell discovered a man in her home. She told him to leave, and he left. Campbell called 911. Campbell testified that the man entered through the garage and the unlocked back door. She that testified she saw him leave through that door. Campbell testified he drove a small dark car.

¶ 3. Officer Matthew Kinne, of the Olive Branch Police Department, received a call about a burglary in progress. He was told to look out for a black male in a dark-colored shirt who drove a dark sedan. Shortly thereafter, Officer Kinne attempted to stop a vehicle that matched the description. A chase ensued. At trial, a video of the chase recorded by Officer Kinne’s dashboard camera was admitted into evidence and played to the jury.

¶ 4. When the car chase ended, by the vehicle crashing, the driver got out of the vehicle and began to run. Officer Kinne and other officers pursued the man on foot. They saw him go into a house, an occupant ran out of the house and informed the officers a man was in her house, they entered the house, and they found a man hiding in a closet. The man was taken into custody. Officer Kinne testified that the person they pursued on foot was the same person taken into custody-

¶ 5. Later, Campbell met with a detective and was presented with a photo lineup. She identified Conner as the man who had been in her house. Conner was also the man taken into custody after the car chase. Campbell also identified Conner at the trial.

¶ 6. Prior to trial, the State sought to amend the indictment to charge Conner as a habitual offender. The circuit court held a hearing and admitted Conner’s prior convictions through a pen pack, which included a sworn affidavit from the director of sentence-management services for the Tennessee Department of Corrections. The circuit court then allowed the State to amend the indictment to charge Conner as a habitual offender.

¶ 7. The jury convicted Conner of burglary of a dwelling and felony fleeing. The circuit court sentenced Conner to life without parole on each count. On April 15, 2011, Conner filed motions for a judgment notwithstanding the verdict and a new trial. On June 28, 2011, the circuit court denied both motions.

ANALYSIS

1. The circuit court did not err when it determined the State had produced sufficient evidence to support Conner’s conviction for felony fleeing.

¶ 8. When faced with a sufficien-ey-of-the-evidenee claim, the main question “is whether the evidence shows ‘beyond a reasonable doubt that [the]accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr. v. State, 208 So.2d 886, 889 (Miss.1968)). The court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). This Court will consider whether the “facts and inferences ... ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty[.]” Id. (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). In such situations, this Court should reverse and render. Id.

¶ 9. But, if the evidence “is of such quality and weight that ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. (quoting Edwards, 469 So.2d at 70). The evidence should be considered in the light most favorable to the State. Id. at (¶ 17).

¶ 10. The crime of felony fleeing is set forth in Mississippi Code Annotated 97-9-72 (Rev.2006), which states:

(1) The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1, 000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both.
(2) Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony, and upon conviction thereof, shall be punished by a fine not to exceed Five Thousand Dollars ($5,000.00), or by commitment to the custody of the Mississippi Department of Corrections for not more than five (5) years, or both.

¶ 11. Conner argues the evidence was insufficient because no witness identified him as the person who exited the vehicle and was arrested. Thus, he argues, there was not sufficient evidence to find him guilty of the crime.

¶ 12. Campbell discovered a man in her house. At trial, she identified Conner as that man. As he left, Campbell got a description of his car and called law enforcement. Officer Kinne testified that he responded to a call about a burglary in progress, which was Campbell’s call. He was already in the area in response to a panic alarm. Officer Kinne saw a vehicle that matched the description dispatch gave him. He attempted to stop the vehicle and turned his blue lights on. Instead of stopping, the vehicle led Office Kinne on a car chase. The vehicle traveled at a high rate of speed, ran a red light, and swerved in and out of several lanes of traffic. At the end of the chase, the driver got out of the vehicle and began to run. Officer Kinne and other officers pursued the man. They saw him enter a house. An occupant of the house ran out and told the officers that a man was in her house. The officers searched the house and found the man, whom they arrested.

¶ 13. The State argues that Officer Kinne “testified that the man that exited the car was the defendant!.]” This is not a accurate statement of Officer Kinne’s testimony. He testified:

Q. Is that—that person that was taken into custody, is that the same person that you jumped out of your car to pursue on foot?
A. Yes.

Conner is correct that, during his testimony, Officer Kinne did not identify Conner as the person who was guilty of felony fleeing.

¶14. The video from Officer Kinne’s dash camera was played for the jury. It shows a chase that lasted just over seven and a half minutes. The video is evidence of the crime of felony fleeing. However, the video does not clearly identify Conner as the person who fled Officer Kinne’s arrest. For less than three seconds, the video shows a person get out of the car and begin to run, but there is not a clear picture to identify the person who got out of the car.

¶ 15. Campbell identified Conner as the person who was in her home. Campbell also identified Conner in a photo lineup after he was apprehended in the car chase. The short passage of time from Campbell’s report of a man in her home and the short distance from her home to the point where Officer Kinne spotted the similar vehicle and began the chase were sufficient evidence for the jury to infer that Conner was the individual who was driving the car and fled the arrest and whom Officer Kinne caught and arrested at the end of the chase. Officer Kinne testified that there was only one person in the fleeing automobile, the driver.

¶ 16. In Passons v. State, 239 Miss. 629, 634, 124 So.2d 847, 848 (1960), the supreme court held:

The character and adequacy of evidence of identification of an accused in a criminal case is primarily a question for the jury, provided the evidence could reasonably be held sufficient to comply with the requirement of proof beyond a reasonable doubt.... In short, positive identification by one witness of the defendant as the perpetrator of the crime may be sufficient, as in the instant case.

Here, there was sufficient evidence of a positive identification of Conner for the conviction of felony fleeing to stand. As a result, we find no error and affirm the conviction of felony fleeing.

2. The circuit court did not err when it sentenced Conner as a habitual offender.

¶ 17. Conner’s counsel objected at the sentencing hearing and argued that the State had not proven beyond a reasonable doubt that Conner had previously served separate terms of one year or more in a state or federal penitentiary. Thus, this argument was preserved for appeal.

¶ 18. The circuit court’s imposed sentence “generally will not be disturbed if found to be within the allowable statutory range.” Yeatman v. State, 90 So.3d 1239, 1245 (¶ 18) (Miss.2012). “As long as the trial judge applied the correct legal standards, this Court will not reverse a trial judge’s decision unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Frazier v. State, 907 So.2d 985, 990 (¶ 8) (Miss.Ct.App. 2005). The State had the burden of proving that Conner was a habitual offender beyond a reasonable doubt. See id. at 992 (¶ 20). This Court previously addressed this issue in Vince v. State, 844 So.2d 510 (Miss.Ct.App.2003). Vince complained the State did not produce sufficient evidence to support sentencing him as a habitual offender. Id. at 516 (¶ 17). At trial, the State relied on a National Crime Information Center printout of Vince’s past convictions. Id. at 517 (¶ 23). However, the NCIC printout was not an exhibit. Id. at (¶ 22). It also was not listed as an exhibit in the transcript. Id. This Court vacated Vinee’s sentence because the State failed to put forth evidence that proved Vince’s prior convictions beyond a reasonable doubt. Id.

¶ 19. This Court distinguished Vince in Frazier. Frazier also argued the State did not sufficiently prove his prior convictions. Frazier, 907 So.2d at 992 (¶ 22). The State admitted pen-pack records into evidence to prove the prior convictions. Id. This Court distinguished Frazier’s circumstances from Vince and noted the State had offered certified copies of pen packs instead of NCIC reports. Id. at 993 (¶ 23). Also, the circuit court actually admitted the pen packs into evidence. Id. at 992 (¶ 22). The appellate record also contained the pen packs. Id. at (¶ 18). Although the Vince Court had reversed based on the insufficient record, the Frazier Court concluded Frazier’s argument was without merit because in his case the record was sufficient. See id. at 993 (¶ 23).

¶ 20. The evidence presented against Conner is more like Frazier than Vince. As in Frazier, the State relied on certified copies of conviction, with the pen pack included, and a sworn affidavit from the director of sentence-management services. The pen pack was admitted into evidence during the circuit court’s hearing to amend the indictment. At the sentencing hearing, the State asked the court to refer back to the record that the indictment had been amended to charge his status as a section 99-19-83 habitual offender and asked that he receive the maximum sentence. The defense objected to incorporating by reference into the sentencing-hearing transcript the convictions previously submitted in the motion-to-amend hearing. Specifically, the defense argued the pen pack and prior convictions were hearsay and violated Con-nells right to confront the witnesses. The circuit court overruled Conner’s objection. Thus, the circuit court incorporated the pen pack into the record by reference during the sentencing hearing.

¶ 21. This Court reversed in Vince because the record was insufficient. Id. Here, the court properly admitted the pen pack into evidence. In Dixon v. State, 812 So.2d 225, 231 (¶ 26) (Miss.Ct.App.2001), this Court noted documents in pen packs are “competent evidence of prior crimes to enhance sentencing.” Also, the affidavit of Candace Whisman, director of sentence management services for the Tennessee Department of Corrections says:

Mr. Conner was sentenced December 17, 1984, in Shelby County Case # 8404276 ct. 1 and ct. 2, and received a sentence of five years for Robbery in each case. Both sentences were served concurrently. He was awarded pre-trial jail credit in both cases for a total of 160 days. He served time in custody on these cases for 1,170 days from December 17, 1984, until these sentences expired effective March 1, 1988. Total time served on these cases equaled 1,330 days.
Mr. Conner was also sentenced December 17, 1984, in Shelby County Case # 8404274 and 8404275, and received a sentence of twenty-five years for Robbery Armed with a Deadly Weapon in each ease. Both sentences were served concurrently ... with Case # 8404276. He was awarded pre-trial jail credit in both cases for a total of 160 days. He served time in custody on these cases for 1,848 days from December 17, 1984, until parole was granted and he was released on January 8, 1990[,] to parole supervision. He served time in custody for another 355 days as he was returned from parole on a violation as of March 4, 1992, parole was revoked on March 18, 1992, and he was released again to parole supervision on February 22, 1993. He served time in custody for another 896 days as he was returned from parole on a violation as of July 21, 1994, parole was revoked on August 30, 1994, and he was released again to parole supervision on January 2, 1997. He served time in custody for another 1,598 days as he was returned from parole on a violation as of March 8, 1998, parole was revoked on March 30, 1998, and he was released at expiration of sentence on July 23, 2002. Total time served on these cases equaled 4,857 days.
Mr. Conner was sentenced April 18, 1995, in Shelby County Case # 9407078, and received a sentence of six years for Robbery. This sentence was ordered to be served consecutively to his prior sentences. He was awarded pre-trial jail credit in this case for a total of 251 days.
This offense was committed while on parole[,] so the TN Board of Probation and Parole ordered the sentence to begin effective July 13, 1995. He served time in custody on these cases for 539 days from July 13,1995, until parole was granted and he was released to parole supervision on January 2, 1997. He served time in custody for another 284 days as he was returned from parole on a -violation as of March 8, 1998, parole was revoked on March 30, 1998, and this sentence expired effective December 17, 1998. He remained in custody on his prior sentence. Total time served on this case equaled 1,074 days.
Mr. Conner was sentenced January 9, 2006, in Shelby County Case # 0404050, and received a sentence of two years for Attempted Aggravated Burglary. He was awarded pre-trial jail credit for a total of 209 days. He served time in custody on these cases for 72 days from January 9, 2006[,] until he was released to determinate probation on March 22, 2006. He remained out of custody until probation expired effective August 21, 2007. Total time served in custody on this case equaled 281 days.

The requirements of Mississippi Code Annotated section 99-19-83 must be met for Conner to have been sentenced as a habitual offender. That section reads:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-83.

¶ 22. The pen pack indicates that Conner was convicted of robbery in 1995 and pled guilty to armed robbery with a deadly weapon in 1984. Both are felony offenses. The events had separate victims and occurred at separate times. This court has established “[separate convictions based upon different crimes, even if the crimes of which a defendant is convicted occurred on the same day, may serve as prior offenses to be considered in sentencing a defendant as a habitual offender.” Shumaker v. State, 956 So.2d 1078, 1088 (¶ 27) (Miss.Ct.App.2007) (citation omitted). Thus, the convictions arose out of separate incidents.

¶23. Conner was sentenced to serve a term over a year for each conviction. “[P]roof of habitual status is sufficient where the State demonstrates that a defendant was sentenced to terms in excess of one year.” Frazier, 907 So.2d at 991 (¶ 15). It does not matter that the terms were served consecutively because “[t]he statute does not require that the terms served must have an intervening period between them when the defendant is free of confinement.” Jackson v. State, 483 So.2d 1353, 1357 (Miss.1986).

¶24. Tennessee Code Annotated 39-13-401 (1990) defines robbery as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Thus, robbery is a violent crime. For these reasons, section 99-19-83’s requirements are met.

¶ 25. Thus, the evidence sufficiently proved Conner’s status as a habitual offender. We find that this issue is without merit.

3. The circuit court did not err when it did not give a jury instruction on the elements of larceny.

¶ 26. Conner argues that the circuit court erred when it did not instruct the jury as to the elements of larceny. We must note that Conner did not offer an instruction that set forth the elements of larceny. Also, the only objections he made during jury-instruction proceedings were that the State had not provided evidence of intent to commit larceny; no proof had been presented of any larceny; the elements of burglary had not been met; and the offense committed as a trespass or attempted burglary. He moved to dismiss the count of burglary. He also requested a lesser-included-offense instruction. It has been established that when a party fails to object or offer an instruction, he waives the issue for appeal. Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995) (citation omitted). Furthermore, “error cannot be predicated on failure of the court to give an instruction that was not requested.” Ellis v. State, 956 So.2d 1008, 1014 (¶ 11) (Miss.Ct.App.2007) (citation omitted). Thus, in order to address this issue, we must find plain error.

¶ 27. The plain-error doctrine requires the appellant to show that there was an error in the trial court that resulted in a “manifest miscarriage of justice.” Blunt v. State, 55 So.3d 207, 211 (¶ 16) (Miss.Ct.App.2011) (internal quotation omitted). The plain-error doctrine only applies when the error complained of affects a defendant’s fundamental right. Id.

¶ 28. A circuit court’s failure to instruct the jury on all the elements of a crime is error. Kolberg v. State, 829 So.2d 29, 47 (¶ 28) (Miss.2002) (citing Hunter v. State, 684 So.2d 625, 635 (Miss.1996)). The circuit court only commits “fundamental error” if it fails to instruct the jury on an essential element of the offense. Lyles v. State, 12 So.3d 532, 541-42 (¶28) (Miss. Ct.App.2009) (citations omitted).

¶ 29. Burglary of a dwelling has two essential elements: (1) breaking and entering of the dwelling house of another and (2) intent to commit some crime therein. Miss.Code Ann. § 97-17-23(1) (Supp.2012). The Mississippi Supreme Court has said “the crime of burglary does not contain two separate and distinct ‘sub-crimes.’ ” Booker v. State, 716 So.2d 1064, 1067-68 (¶ 12) (Miss.1998). Conner argues that because an indictment for burglary that fails to specify what crime the accused intended to commit is fatally defective, the specific underlying offense is an element of the crime of burglary. See Lambert v. State, 462 So.2d 308, 311 (Miss.1984). However, while the supreme court has discussed the importance of specifying in the indictment the crime the accused intended to commit, the court has also stated that the State is not required to prove the elements of the crime intended in every particular. Newburn v. State, 205 So.2d 260, 266 (Miss.1967). Conner’s indictment charged him with the intent to commit larceny. The State was not required to prove the elements of larceny.

¶30. Consequently, larceny is not an element of burglary. Because larceny is not an essential element, the circuit court did not commit fundamental error when it did not give an instruction on larceny.

A The circuit court did not err when it denied Conner’s motion for a new trial.

¶ 31. Conner argues that he was entitled to a new trial because the conviction for burglary was “wholly based upon eyewitness testimony.” In his brief, Conner makes an interesting argument:

The United States Supreme Court recently concluded that eyewitness identification does not require an additional level of review in order to comport with the Due Process Clause of the United States Constitution[ ] when the identification was not procured under suggestive circumstances. Perry v. New Hampshire, ... — U.S. —, —, 132 S.Ct. 716, 730, 181 L.Ed.2d 694 (2012)[.] However, the Court’s opinion in Perry is indicative of a renewed debate áboüt the trustworthiness and reliability of eyewitness accounts as well as concerns that mistaken eyewitness identifications can lead to wrongful convictions. Justice Sotomayor’s dissent in Perry is particularly illustrative of the empirical evidence surrounding eyewitness testimony:
The empirical evidence demonstrates that eyewitness misidentification is “the single greatest cause of wrongful convictions in this country.” Researchers have found that a staggering 76% of the first 250 convictions overturned due to DNA evidence since 1989 involved eyewitness mis-identification. Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that suggestiveness can stem from sources beyond police-orchestrated procedures.
Perry, 132 S.Ct. at 738 — 39[ ] (Sotomayor, J., dissenting) (internal citations omitted).

¶ 32. Conner admits that Campbell identified him as the man inside her home. However, he claims that he “was never found with Campbell’s property. The only evidentiary link between Conner and the purported burglary is Campbell’s identification. This evidentiary link, given the discussion above, is tenuous, at best.” Campbell argues that he is entitled to a new trial on the burglary conviction.

¶ 33. This Court reviews a denial of a motion for a new trial for abuse of discretion. Rutland v. State, 60 So.3d 137, 142 (¶ 18) (Miss.2011). As to the circuit court’s denial of Conner’s motion for a new trial, which alleged that the verdict was against the overwhelming weight of the evidence, this Court “will only disturb [the] verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). This Court must consider the evidence in the light most favorable to the verdict. Id. (citation omitted).

¶ 34. Campbell testified that Conner was in her home. In Mississippi, eyewitness testimony is sufficient evidence to uphold a conviction. See Butler v. State, 102 So.3d 260, 268 (¶ 24) (Miss.2012) (eyewitness identification was sufficient to support jury’s verdict for conviction of manslaughter); Green v. State, 89 So.3d 543, 554 (¶ 30) (Miss.2012) (eyewitness identification was sufficient to support jury’s verdict for conviction of sexual battery and lustful touching of a child).

¶ 35. Campbell’s eyewitness testimony was sufficient evidence to identify Conner as the person who was in her home and who was guilty of of burglary of a dwelling. Thus, we do not find that the verdict was against the overwhelming weight of the evidence. We find no merit to this issue and affirm.

¶ 36. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, BURGLARY OF A DWELLING, AND SENTENCE OF LIFE IMPRISONMENT; COUNT III, FELONY FLEEING, AND SENTENCE OF LIFE IMPRISONMENT, WITH THE SENTENCES TO RUN CONSECUTIVELY TO EACH OTHER AND TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED, ALL AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

LEE, C.J., IRVING, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . The State’s brief is minimalist or bare-bones. For example, the State’s brief includes a statement of the case that is simply a block quote of the "Trial Transcript of State's Opening Statement." Mississippi Rules of Appellate Procedure 28(b) and 28(a)(4) do not require the appellee provide a statement of the case. However, if the appellee chooses to provide a statement of the case, it must include "appropriate references to the record.” A block quote of the opening argument is not an "appropriate reference!] to the record.”


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Tom CHRISTMAS and Consandra J. Christmas, Appellants v. EXXON MOBIL CORPORATION, a New Jersey Corporation, Appellee.
    No. 2011-CA-01311-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Sept. 3, 2013.

      Wayne Dowdy, Dunbar Dowdy Watt, Magnolia, attorneys for appellants.
    Jeffery P. Reynolds, Gene D. Berry, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Consandra and Tom Christmas allege that Exxon’s Centreville Landfarm is infested with alligators that have spilled over onto their adjoining land. The issue on appeal is whether them claim for damages is barred by the statute of limitations. We reverse because we find a genuine issue of material fact as to when the injury to the Christmases’ property was reasonably discoverable.

FACTS

¶ 2. In December 2003, the Christmases purchased approximately thirty-five acres of land in rural Wilkinson County between the towns of Centreville and Woodville. Adjacent to the Christmases’ property is the Centreville Landfarm, a refinery waste disposal site owned and maintained by Exxon. The Christmases were apparently unaware of the nature of the site next-door when they purchased their property.

¶ 3. The Centreville Landfarm was originally operated by Rogers Rental and Landfill Company Inc. The property has nineteen rainwater retention ponds, totaling about eighty-five surface acres of water. Alligators were allegedly introduced to the site as “canaries” to warn of hazardous contamination in the retention ponds. Exxon has owned the facility since July 2001, but it had a close relationship with Rogers that stretched back to at least 1980. At some point in the 1990s, Rogers stopped accepting new refinery waste, and the facility has since been maintained as a former waste disposal site.

¶ 4. The Christmases filed suit against Exxon on August 11, 2008. They alleged that their property had been contaminated with runoff from the landfarm and that the Exxon property was infested with alligators. The trial court granted summary judgment to Exxon, and the Christmases appeal.

STANDARD OF REVIEW

¶ 5. “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and examine all the evidentiary matters before it....” Davis v. Hoss, 869 So.2d 397, 401 (¶ 10) (Miss.2004). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c).

¶ 6. “The evidence is viewed in the light most favorable to the party opposing the motion.” Davis, 869 So.2d at 401 (¶ 10). “[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response ... must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). Furthermore:

[W]hen a party, opposing summary judgment on a claim or defense as to which that party will bear the burden of proof at trial, fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.

Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987).

DISCUSSION

¶ 7. On appeal, the Christmases have conceded the trial court properly granted summary judgment on their contamination claim. They have likewise abandoned their claim that the “stigma” of the neighboring Exxon property caused an actionable diminishment in their property’s value. This appeal is limited to the specific question of whether the trial court erred in granting summary judgment on the claim of damages stemming from alligator infestation. The circuit court asserted two independent but related grounds when it granted summary judgment on the infestation claim: the statute of limitations and the prior trespass doctrine.

1. Statute of Limitations

¶ 8. Liability for a private nuisance exists when there is “an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.” Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 662 (Miss.1995).

¶ 9. The Christmases contend the alligator infestation of the Exxon property is a non-abatable nuisance that has caused a permanent injury to their property. They have made it clear they are seeking damages for permanent depreciation of their land, not an abatement of the nuisance or damages for the temporary loss of use or enjoyment of the property. See generally City of Oxford v. Spears, 228 Miss. 433, 439, 87 So.2d 914, 916 (1956). Although the assertion of permanent injury is questionable, where “a party seriously pleads a limitations defense, he concedes pro tanto a claim has been stated.” Bowen v. Flaherty, 601 So.2d 860, 862 (Miss.1992). Moreover, the posture of this case is summary judgment. An appellate court cannot affirm summary judgment on grounds not timely raised in the trial court. Due process is implicated because the nonmoving party is entitled to notice and an opportunity to respond to a summary judgment motion. See M.R.C.P. 56(c); Byrd v. Woods, 90 So.3d 666, 671 (¶23) (Miss.Ct.App.2012). Thus we assume for the sake of this analysis that the infestation is a permanent injury to the Christmases’ property.

¶10. Mississippi Code Annotated section 15—1—49 (Rev.2012) provides for a three-year statute of limitations for nuisance claims. “A cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested.... ” Rankin v. Mark, 238 Miss. 858, 865, 120 So.2d 435, 437 (Miss.1960) (internal quotations omitted). There appears to be no question the Exxon property became infested well outside the limitations period. Alligators were allegedly introduced to the Exxon property prior to 1984, and the retention ponds have apparently existed at least that long. It was also attested that by the year 2000 (at the latest), there were “many, many alligators” on the Exxon property, and a real estate agent involved in the sale of the property to the Christmases stated that an alligator may have attacked a horse he kept on the Christmas property.

¶ 11. There is, however, a discovery exception that tolls the limitations period when the injury is latent. Section 15-1-49(2) states:

In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

The Mississippi Supreme Court has extended the discovery rule to actions involving latent injury to real property. See Punzo v. Jackson Cnty., 861 So.2d 340, 345 (¶ 17) (Miss.2003); Donald v. Amoco Prod. Co., 735 So.2d 161, 166 (¶ 11) (Miss.1999). “The term ‘latent injury’ while seemingly vague does have definitive boundaries.” PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 51 (¶ 14) (Miss.2005). “For an injury to be latent it must be undiscoverable by reasonable methods.” Id. The discovery rule applies “where the plaintiff will be precluded from discovering the harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question or ... when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” Angle v. Koppers, Inc., 42 So.3d 1, 7 (¶ 16) (Miss.2010). “Because there is no bright line rule, the specific facts of the case will determine whether the plaintiff knew or reasonably] should have known that an injury existed.” Lowery, 909 So.2d at 51 (¶ 14).

¶ 12. According to the Christmases, their property is rural and was not occupied at the time they purchased it in 2003. The land had apparently been used for hunting and timber in the years prior. It had been logged some time before and at the time of purchase was covered in dense underbrush. The Christmases admitted that they had occasionally seen alligators after taking possession, but they did not suspect anything out of the ordinary until they moved onto the land and began clearing it. They did not learn where the alligators were coming from until 2007, when Tom Christmas was allowed on the Exxon property to search for a lost hunting dog.

¶ 13. The parties largely focus on when the Christmases themselves discovered the alligators. This emphasis is somewhat misplaced, as the relevant question is when the injury should have been discovered by the owner, not the current owner at the time of the lawsuit. The statute of limitations does not reset itself every time land is sold. But because of the state of the record we cannot say with any certainty whether the infestation should have been discovered prior to the Christmases’ ownership of the property. Since Exxon bears the burden of proof, this is not fatal to the Christmases’ claim. “A plea of the statutes of limitations is an affirmative defense[,] and carrying the burden of proof lies on the party who relies upon that defense.” Graham v. Pugh, 417 So.2d 536, 540-41 (Miss.1982).

¶ 14. Whether an injury to real property is reasonably discoverable depends not only on the nature of the injury, but the character of the property and the uses to which it is put. In this case, the Christmas property was overgrown and was used for hunting and recreation, which is not unusual or unreasonable for rural land. Undergrowth could have concealed the presence of the alligators, and human activity usually would have occurred when alligators are usually idle and hidden — during the day, and in the case of hunting, mostly during the winter months. It also does not appear from the record that the Christmases could have seen the full extent of the network of retention ponds on the Exxon property from any vantage point available to them. And alligator infestation is such an unusual injury that a landowner cannot be said to be put on notice by an occasional sighting, particularly in a place like Wilkinson County where there is some naturally occurring alligator habitat.

¶ 15. “[O]ccasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion.” Stringer v. Trapp, 30 So.3d 339, 342 (¶ 12) (Miss.2010) (internal quotations omitted). After reviewing the record, being mindful that Exxon bears the burden of proof, we conclude reasonable minds could differ as to whether'the infestation was reasonably discoverable before the Christmas property was permanently occupied. Because there is a genuine issue of material fact, the circuit court erred in granting summary judgment on this issue.

2. Prior Trespass

¶ 16. In its motion for summary judgment Exxon argues that any injury to the property occurred prior to December 2003 when the Christmases purchased the land. Thus, Exxon argues that the doctrine of prior trespass bars the Christmases’ claim.

¶ 17. “Under the doctrine of pri- or trespass, the deed to land does not implicitly convey any right of action for trespasses or property damage that occurred prior to the transaction”; assignment of the cause of action to the purchaser must be express. Flowers v. McCraw, 792 So.2d 339, 342 (¶ 8) (Miss.Ct.App.2001) (quotations omitted).

¶18. However, “[t]he rationale for the prior trespass doctrine is that a purchaser of land to which permanent damage has been done by trespass or nuisance pays less for the land because of that damage.” Donald, 735 So.2d at 169 (¶ 25) (quoting City of Jackson v. Filtrol Corp., 624 F.2d 1384, 1389 (5th Cir.1980)). The prior trespass doctrine should not be applied when the damage was unknown when the purchase price was set. See id. at 170 (¶ 25). As we have already found a genuine issue of material fact as to whether the injury was known or should have been known at the time of the sale, we conclude the trial court erred when it granted summary judgment on the basis of the prior trespass doctrine.

CONCLUSION

¶ 19. The summary judgment requested by Exxon was limited to the issues of the statute of limitations and the prior trespass doctrine. For the purpose of these issues, we must assume the alleged alligator infestation is actionable as a permanent injury to the Christmases’ land. Although it is clear the infestation first arose outside the statute of limitations, we conclude there is a genuine issue of material fact as to when it reasonably should have been discovered. We therefore reverse the trial court’s grant of summary judgment on the infestation claim, and remand the case for further proceedings.

f 20. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . This claim was not directly raised in the complaint, but it was nonetheless addressed on summary judgment.

      . If a nuisance is abatable, damages for permanent injury are not available. See Spears, 228 Miss. at 439-40, 87 So.2d at 916. The question of whether the alligator infestation can be abated has not been explored. However, the record does indicate that at the Christmases’ prompting, Exxon requested that the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) conduct an alligator census of its property. On July 2, 2007, MDWFP counted approximately eighty-four alligators, essentially one per acre of water, with the caveat that not all may have been counted. Only about sixteen of the observed alligators were four feet or greater in length. At Exxon's request, MDWFP and the Mississippi Department of Environmental Quality (MDEQ) created a harvest plan, whereby alligators of four feet or greater in length would be removed. In July 2008 a MDWFP agent trapper culled seven adult alligators from the property. Exxon had also reinforced its fence along the Christmases' property, apparently to keep alligators from passing under it.


author: ISHEE, J., CARLTON, J.,

text:
    Joel MISITA, Appellant v. Roy A. (Al) CONN and Mitzi P. Conn, Appellees.
    No. 2011-CA-01865-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Oct. 1, 2013.

      R. Kent Hudson, Natchez, attorney for appellant.
    Katie W. Freiberger, Natchez, attorney for appellees.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the Court:

¶ 1. In 2007, Joel Misita purchased approximately 8.226 acres of land (the three acres) in Natchez, Mississippi, from Kevin and Rebecca Wilson. The three acres were properly conveyed by a warranty deed containing a covenant prohibiting the building of any structures on the property. The Wilsons and Misita were neighbors with the three acres adjoining their properties. The Wilsons later sold their land to Roy A. Conn (Al) and his wife, Mitzi Conn. Shortly thereafter, Misita placed a movable advertisement sign for his business on the three acres. The Conns objected to the placement of the sign, and sought enforcement of the warranty deed’s covenant in the Adams County Chancery Court in May 2011. In October 2011, after a trial on the merits, the chancery court ruled in favor of the Conns and ordered the structure to be removed from the three acres. On appeal, Misita asserts the covenant is ambiguous and unenforceable. We reverse and render the chancery court’s determination that the sign constitutes a structure. We affirm the chancery court’s determination that the covenant is a permissible real covenant running with the land.

STATEMENT OF FACTS

¶ 2. In 2007, Misita and the Wilsons were neighbors in Elgin & Grove Plantation, a community in Adams County, Mississippi. Prior to the sale of the three acres, the Wilsons' property consisted of approximately thirty acres with a single residence. Misita’s land consisted of approximately seven acres with several structures positioned on the property. The main home on Misita’s land is an unusually tall three-story structure that houses Misita’s wood and metalworking business on the bottom floor and his residence on the top two floors. The main house measures over sixty-two feet tall. Also present on the property are multiple outbuildings, including a large woodworking facility, several large trailers, a small cabin on a hill, and various sheds.

¶ 3. In November 2007, Kevin commissioned Misita to build a copper vent hood for the Wilsons’ house. Misita agreed to construct the hood for the Wilsons and pay them ten dollars in exchange for the three acres. Kevin agreed to Misita’s proposal. However, according to Misita, Kevin looked up at Misita’s towering home and commented that the land would only be conveyed on the premise that no structures may be built on the three acres. Misita testified that he replied: “Fine.” On November 16, 2007, after the copper hood was delivered and Misita had given the Wilsons ten dollars in cash, the Wilsons executed a warranty deed conveying the three acres to Misita with the following covenant: “No structures are to be erected on the property.”

¶ 4. In June 2008, the Wilsons sold the property and the residence to the Conns. About two years later, Misita decided to build a large movable sign on wheels to advertise his business. The sign is triangular in shape measuring eighteen feet long on all sides and is approximately fifteen feet tall. It contains a floor, a metal roof, and a door. Misita stores various examples of his work inside, and designed the sign to show to potential clients his work, as well as advertise his business to passersby on the highway. It is connected to pipes that are sunk into the ground and secured by concrete; however, the sign is movable. It is positioned on a trailer and has wheels so that Misita can take the sign to trade shows or to clients’ homes. Initially Misita was granted a trailer license with the sign. Currently, Misita must obtain a special permit in order to transport the sign.

¶ 5. Prior to placing the sign on the three acres, Misita discussed the sign’s placement with the Conns. The Conns considered Misita’s proposition as a request to eliminate the covenant, and ultimately decided that enforcement of the covenant was in their best interest. The Conns communicated this decision to Misi-ta by a written letter dated April 12, 2010, that was mailed by certified mail with a return receipt requested. Therein, they acknowledged Misita’s proposition and their decision. They also stated that they had relied on the covenant in their decision to purchase their property from the Wil-sons. They advised Misita that they would seek enforcement to the covenant should Misita continue with his plan to place the sign on the three acres.

¶ 6. Misita soon placed the sign on the three acres, and the Conns subsequently filed suit on May 4, 2011. The chancery court conducted a hearing on the Conns’ complaint on September 27, 2011. On October 25, 2011, the chancery court issued extensive findings of fact and conclusions of law, and determined that the covenant prohibited Misita’s placement of the sign on the three acres. Misita quickly filed a motion for reconsideration, which was denied. He now appeals the chancery court’s judgment.

DISCUSSION

¶ 7. The Mississippi Supreme Court has stated the following with regard to issues involving the interpretation of contracts:

Such issues are questions of law reviewed by our appellate courts under a de novo standard of review. We first look to the express wording of the contract itself, looking at the contract as a whole, to the exclusion of extrinsic or parol evidence. If the parties’ intent is unclear, the court will utilize the applicable “canons” of contract construction. Finally, if the meaning remains ambiguous, only then may the court consider extrinsic evidence.

Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss.2010) (internal citations omitted). The supreme court has further held that “it is not the function of the courts to make contracts for parties, but rather to give effect to them as written ... [and] to adhere to the principle so deeply embedded in our jurisprudence that the plain and unambiguous language of a contract should be construed as written.” Vulcan Materials Co. v. Miller, 691 So.2d 908, 912 (Miss.1997) (citations omitted).

¶ 8. In his first issue on appeal, Misita claims the chancery court erred in finding that the covenant in question was a real covenant that runs with the land instead of a personal covenant. In order for a covenant to be real, the evidence must show the following:

(1) [T]he covenanting parties intended to create such a covenant;
(2) [P]rivity of estate exists between the person claiming the right to enforce the covenant and the person to whom the burden of the covenant is to be imposed; and
(3) [T]he covenant “touches and concerns” the land[.]

Id. at 914.

¶9. Accordingly, we now analyze the intent of the parties while first addressing any possible ambiguities with regard to the covenant’s language. The covenant states: “No structures are to be erected on the property.” The parties differ in their determination of the original intent of the term “structure.” The chancery court cited Conservatorship of Estate of Moor v. State, 46 So.3d 849 (Miss.Ct.App.2010), in correctly stating: “[T]he mere fact that parties dispute what falls under the definition of a term to the contract does not make the term ambiguous as a matter of law. If the words are not defined in the deed, the court gives them their commonly accepted meaning.”

¶ 10. According to Random House Webster’s Unabridged Dictionary 1887 (2nd ed.2001), the definition of a structure, when used as a noun, is “something built or constructed, as a building, bridge, or dam.” We, therefore, determine that this commonly accepted meaning of the term “structure” was the intention of the original parties when placing the word in the covenant.

¶ 11. The sign clearly does not fall within the purview of a bridge or a dam. However, a building is defined as “a relatively permanent enclosed construction over a plot of land, having a roof and usually windows and often more than one level, used for any of a wide variety of activities....” Random House Webster’s Unabridged Dictionary 274 (2nd ed.2001). While the sign embodies some of the characteristics of a building, such as a roof and being enclosed, it is not relatively permanent. It is not permanently affixed to the land since it has wheels and can be pulled behind an automobile. Misita purposefully built the sign with wheels so he could transport it to trade shows and clients’ homes as an example of his work.

¶ 12. Random House Webster’s Unabridged Dictionary 2109 (2d ed.2001) defines a vehicle as “any means in or by which someone travels or something is carried or conveyed; a means of conveyance or transport.” Misita built the sign for the purpose of conveying a prime example of his work to potential clients. The sign was not intended to be nor is it a permanent or relatively permanent building situated on the three acres. The sign is akin to the commonly accepted definition of a vehicle, not a building. Therefore, we find that the sign in question does not fall within the purview of the commonly accepted meaning of “structure.”

¶ 13. Finding no ambiguity in the covenant’s language, we move on to the parties’ intent to enter into the covenant. Prior to drafting the deed, Kevin told Misi-ta, while viewing Misita’s large house and numerous outbuildings, that he did not want any structures built on the property, to which Misita responded: “Fine.” Misita acknowledges that he understood Kevin’s aversion to Misita’s numerous buildings on his property and agreed to refrain from erecting such structures on the three acres. The intent of the parties is clear.

¶ 14. Next, it is without question that there was privity of estate between the Conns and Misita. Privity of estate exists when there is a “successive relationship to the same [r]ights of property.” Clement v. R.L. Burns Corp., 373 So.2d 790, 794 (Miss.1979) (citation omitted). “Privity implies succession. He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title, and thus takes it charged with the burden attending it.” Id. (citation omitted).

¶ 15. In Journeay v. Berry, 953 So.2d 1145, 1155 (¶ 25) (Miss.Ct.App.2007), we held that owners of lots in a residential development were in privity of estate with the developers after they purchased the lots and agreed to be bound by the restrictive covenants contained in the lot deeds. Even before Misita was granted the deed for the three acres, he was made aware of the covenant. Hence, like in Journeay, Misita was advised of the covenant and, upon receipt of the deed, had actual notice of the covenant. The covenant was not hidden or located on a separate piece of paper from the rest of the deed. Rather, it was present on the first page of the one- and-a-half-page deed in a paragraph beginning with: “NOTWITHSTANDING THE WARRANTY HEREIN CONTAINED, this conveyance is subject to the following.” The covenant in question was listed as the fifth and final covenant.

¶ 16. When the Conns bought their property from the Wilsons, the privity of enforcing the covenant transferred to them by virtue of the purchase of the land. The Wilsons merely passed the power of enforcing the covenant to the Conns since the Conns became the successors in relationship to the same property right. The Conns testified that they relied upon the covenant in deciding to purchase the property from the Wilsons. They were assured by the Wilsons that the covenant would prevent Misita from “junking up” the three acres as they opined he had done on the rest of his property. The authority of the covenant was transferred to the Conns by virtue of the purchase of the property, and, therefore, clearly establishes privity of estate between the Conns and Misita.

¶ 17. Finally, in order for a covenant to “touch and concern the land,” it “must be so related to the land as to enhance its value and confer a benefit upon it, or, conversely, impose a burden on it.” Journeay, 953 So.2d at 1155 (¶ 26) (citation omitted). It is without question that the covenant touches and concerns the three acres in that it burdens the property by prohibiting structures from being erected. Misita himself argues that the covenant is a burden and, arguably, will always be a burden on the land. As such, the evidence supports the determination that the covenant in question was, in fact, intended to be a real covenant to run with the land.

¶ 18. In his second argument on appeal, Misita asserts that the covenant is unenforceable because it is unreasonably restrictive due to the indefinite nature of the covenant. However, we have upheld indefinite restrictive covenants in the past. In Stokes v. La Cav Improvement Co., 654 So.2d 524, 529 (Miss.1995), the supreme court upheld a covenant prohibiting the construction of a boathouse, storage shed, or other like outbuilding on a lot in residential community. Likewise, in Gast v. Ederer, 600 So.2d 204, 207-08 (Miss.1992), the supreme court upheld the destruction of a boathouse as violating a covenant stating: “No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two stories in height and a private garage for not more than two cars.” Likewise, here, we find that the covenant existed only for the three acres in question and did not, in any way, restrict Misita from placing structures on the other seven acres of his land that did not adjoin the Conns’ property. We find this acceptable, and this issue is without merit.

¶ 19. THE JUDGMENT OF THE ADAMS COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. ALL COSTS OF THIS APPEAL ARE DIVIDED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.

LEE, C.J., IRVING, P.J., ROBERTS AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., BARNES AND JAMES, JJ. MAXWELL, J., NOT PARTICIPATING.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 20. I respectfully concur in part and dissent in part from the majority’s opinion. I concur with the majority’s decision to affirm the chancery court’s determination that the covenant is a permissible real covenant running with the land. However, I dissent from the majority’s determination that the sign fails to constitute a structure.

¶ 21. I submit that the warranty deed in this case is clear and unambiguous. The warranty deed was conveyed subject to the following:

(1) Reservation of all oil, gas, and other minerals lying in, on, and under subject property, and all rights incident thereto.
(2) Any and all easements, exceptions, reservations, restrictions, rights of way, conditions, covenants, etc., affecting the subject property, of use, or of record.
(3) Any and all utility, drainage, and other easements, whether of use or of record.
(4) Ad valorem taxes for the year 2007, which shall be paid by the Grantors.
(5)No structures are to be erected on the property.

By deed, these covenants were conveyed to Misita. See Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985) (“Where there is no substantial ambiguity requiring adjudication, a contract must be enforced as written. We are not in such cases so concerned with what the parties may have meant or intended but rather with what they said, for the language employed in a contract is the surest guide to what was intended.” (internal citations omitted)). “The language of restrictive covenants is to be read ‘in its ordinary sensef.]’ ” Stokes v. Bd. of Dirs. of La Cav Imp. Co., 654 So.2d 524, 527 (Miss.1995). The language in the warranty deed prohibits structures without limitation as to any type of structure, permanent or temporary. Since the language of the warranty deed is clear, we must not venture outside the language of the deed to construe its terms.

¶ 22. In Sullivan v. Kolb, 742 So.2d 771, 776 (¶ 15) (Miss.Ct.App.1999), this Court found the term structure to be unambiguous. Specifically, the Sullivan Court found that the restrictive covenant prohibiting structures, other than that specifically authorized, was not ambiguous. Id. The Court in Sullivan provided as follows:

Where the language is clear and unambiguous, protective covenants will not be disregarded merely because a use is prohibited or restricted. If the intent to prohibit or restrict the use of land is expressed in clear and unambiguous wording, enforcement is available in the courts of this State. The plain meaning of the words in issue are as follows:
(1) building — Something that is built, as for human habitation; a structure — the act, process, art or occupation of constructing.
(2) dwelling — a place to live in; an abode.
(3) structure — Something made up of a number of parts that are held or put together in a particular way. — The way in which parts are arranged or put together to form a whole; makeup. — The interrelation or arrangement of parts in a complex entity. — Something constructed.
(4) improvement — The act or process of improving. — The state of being improved. — A change or addition that improves; and,
(5) house — A structure serving as a dwelling for one or more persons, esp. for a family.

Id. at 777 (¶ 16).

¶ 23. Here, the warranty deed prohibited structures, and no language in the deed limited the types of prohibited structures or set forth any sort of enumeration of exceptions for any authorized structures. Also, the warranty deed’s restriction on structures restricted all structures, not just permanent ones. No language in the warranty deed indicates that the parties intended to prohibit only fixtures or permanent buildings. In reading the restrictive language of the warranty deed in its ordinary sense and in considering the entire document, no ambiguity exists as to the term structure. Moreover, as previously discussed, the Sullivan court determined the word structure as used in the restrictive covenant was unambiguous. See Stokes, 654 So.2d at 527-29 (enforcing restrictive term of warranty deed providing for no buildings or structures). Fundamentally, the intention of the parties as shown by the language in the deed controls. See Vikes v. Pedersen, 247 Wis. 288, 19 N.W.2d 176, 177-78 (1945) (finding advertising signs, gas pumps, poles, and piled materials violated restrictive covenant prohibiting erection of any structure).

¶ 24. Based on the foregoing, I concur in part and dissent in part.

GRIFFIS, P.J., BARNES AND JAMES, JJ., JOIN THIS OPINION.

      . See also Greenberg v. Koslow, 475 S.W.2d 434, 437 (Mo.Ct.App.1971) (defining structure as a "production composed of parts artificially joined together according to plan and designed to accomplish a definite purposef.]").

      . See Sullivan, 742 So.2d at 776 (¶ 15) (finding term structure to be unambiguous); James v. Smith, 537 So.2d 1074, 1078 (Fla.Dist.Ct.App.1989) (covenant restricting any structure of a temporary nature prohibited travel trailer from being on the property for security guard and caretaker); Miami Conservancy Dist. v. Elleman, 50 Ohio App.2d 357, 363 N.E.2d 593, 595-96 (1976) (mobile homes found to be mere structures within meaning of deed restriction prohibiting any structures); Abel v. Bryant, 353 S.W.2d 322, 323-24 (Tex.Civ.App.1962) (two steel air conditioner compressors and condensing units on cement foundations constituted structures in violation of restrictive language prohibiting structures).

      . See Elleman, 363 N.E.2d at 595-96.

      . See Elleman, 363 N.E.2d at 596; Greenberg, 475 S.W.2d at 437 (absent any indication of any special language or peculiar meaning intended by the parties, the court adopted a definition of structure as a "production composed of parts artificially joined together according to plan and designed to accomplish a definite purpose[J”).

        .See also Donald M. Zupanec, “What Constitutes “Structure” within Restrictive Covenant,” 75 A.L.R.3d 1095, 1102-03 (1977) (addressing law on restrictive covenants and warranty deeds restricting structures); see generally Beyt v. Woodvale Place Apartments, 297 So.2d 448, 450-51 (La.Ct.App.1974) (concluding that the wide hard-surface boulevard constituted a structure violating no-structure restriction in covenant); Freedman v. Kittle, 262 A.D.2d 909, 911, 693 N.Y.S.2d 651 (N.Y.App.Div.1999) (finding that restrictive covenant prohibiting building or structure applied to erection of a fence); McBride v. Behrman, 28 Ohio Misc. 47, 272 N.E.2d 181, 188 (1971) (finding term "temporary structure” not ambiguous); Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508-09 (1944) (finding seven-foot-high fence violated restriction against structures in covenant); Alexander Schroeder Lumber Co. v. Corona, 288 S.W.2d 829, 832-35 (Tex.Civ.App.1956) (concluding that seven-foot fence violated no-structure covenant).


author: LEE, C.J.,

text:
    Raymond J. GREER a/k/a Raymond Joseph Greer, Sr., a/k/a Rusty Greer a/k/a Raymond Joseph Greer, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00086-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.
    Rehearing Denied March 11, 2014.
    Certiorari Denied May 15, 2014.

      Raymond J. Greer, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Raymond J. Greer was convicted of capital rape and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. This Court affirmed the conviction in Greer v. State, 818 So.2d 352, 354 (¶ 1) (Miss.Ct.App.2002) (Greer I). Greer filed an application to proceed in the Hancock County Circuit Court with the Mississippi Supreme Court. The supreme court dismissed that application and dismissed or denied subsequent motions, including another motion to file a petition for post-conviction relief. Although the supreme court had denied his application, Greer filed a petition for post-conviction relief in the trial court. The trial court dismissed the motion on November 22, 2010. Greer appealed, and this Court affirmed the trial court’s dismissal in Greer v. State, 94 So.3d 1237, 1237 (¶ 1) (Miss.Ct.App.2012) (Greer II).

¶2. Prior to this Court’s decision in Greer II, Greer filed a motion for relief from judgment under Mississippi Rule of Civil Procedure 60(b), arguing that the November 22, 2010 ruling was in error and that he should not have to seek leave from the Mississippi Supreme Court to file his post-conviction petition. The trial court denied the motion in December 2010, after Greer II had been handed down and after Greer’s motion for rehearing and petition for writ of certiorari had been denied. Greer now appeals the trial court’s denial of his Rule 60(b) motion.

STANDARD OF REVIEW

¶ 3. For this Court to reverse the trial court’s ruling on a Rule 60(b) motion, the petitioner must show that the trial court abused its discretion. Moore v. Jacobs, 752 So.2d 1013, 1015 (¶ 5) (Miss.Ct.App.1999). “[A] party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvert[e]nce; gross negligence, ignorance of the rules, or ignorance of the law is not enough.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984).

DISCUSSION

¶4. Under Rule 60(b), the trial court may grant “relief from a judgment or order, but only where one of the following exists: fraud, accident or mistake, newly discovered evidence, void judgment, judgment has been satisfied or otherwise vacated, or any other reason justifying relief.” Cook v. State, 921 So.2d 1282, 1283 (¶ 4) (Miss.Ct.App.2006). “[T]he general rule is that Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances_” Stringfellow, 451 So.2d at 221.

¶ 5. The trial court found that Greer “provided no ‘exceptional circumstances’ such as are required for Rule 60(b) consideration.” Greer argues that he was denied a milder sentence under Mississippi Code Annotated section 99-19-33 (Rev.2007). However, he does not assert that fraud, accident, mistake, newly discovered evidence, or a void judgment exists. Nor does he claim that the judgment has been satisfied or otherwise vacated. After reviewing the record and Greer’s briefs, we cannot find that “exceptional circumstances” existed sufficient to have compelled the trial court to grant his Rule 60(b) motion or his motion to expedite his Rule 60(b) motion. “Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.” Stringfellow, 451 So.2d at 221. Therefore, we find that the trial court did not abuse its discretion in denying Greer’s Rule 60(b) motion or his motion to expedite his Rule 60(b) motion.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: ROBERTS, J.,

text:
    Weldon LEAGEA a/k/a Weldon Leage, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00286-COA.
    Court of Appeals of Mississippi.
    Oct. 15, 2013.
    Rehearing Denied Feb. 11, 2014.
    Certiorari Denied May 15, 2014.

      Mollie Marie McMillin, attorney for appellant.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Harrison County Circuit Court found Weldon Leagea guilty of capital murder. The jury was not able to unanimously agree on the sentencing verdict, so the circuit court sentenced Leagea to life in the custody of the Mississippi Department of Corrections (MDOC). Leagea appeals and claims the circuit court erred when it refused his proposed jury instructions that would have allowed the jury to find him guilty of simple murder or being an accessory after the fact. We find that the circuit court did not err when it refused Leagea’s proposed jury instructions. Finding no error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. During October 2007, James Yale Johnson and a group of friends traveled from Arkansas to the Isle of Capri Casino in Biloxi, Mississippi. Johnson and his friends planned a golf trip, but when Johnson did not meet his friends one morning, they asked hotel security to check his room. Johnson was found dead in his hotel room. He had been shot twice. There were also signs that there had been a struggle in the room. The phone had been ripped out of the wall, and blood was spattered on the wall. Hotel security reported Johnson’s death to the Biloxi Police Department.

¶ 8. Investigators from the police department found a note on the night stand in Johnson’s hotel room. The note said “Chana,” and “963.” There was also a phone number on the note. The phone number was the last number dialed from Johnson’s phone. A review of the hotel’s security footage led authorities to Leagea, who had checked into room 968 a few days earlier. When investigators searched room 963, they found a phone bill for the phone number that was written on the note that was found in Johnson’s hotel room. The Biloxi Police Department placed an alert on the National Crime Information Center’s database for other law-enforcement agencies to be on the lookout for Leagea.

¶ 4. Leagea was found in Oakdale, Louisiana. When Leagea’s car was searched, officers recovered the same t-shirt and hat that he had been wearing in the hotel’s security footage. A short time later, Cha-na Wells was apprehended in Baton Rouge, Louisiana. Wells gave a statement and reported that she had not known Leagea long when she agreed to travel with him. Wells and Leagea left Baton Rouge and drove to the casino. Wells also told authorities that Leagea had gambled and lost his money. Leagea told Wells to find a “duck” — someone who would be willing to pay her for sex — because he did not have enough money to drive back to Baton Rouge. A short time later, Wells met Johnson on a hotel elevator. According to Wells, Johnson asked her whether she was “working.” Wells went with Johnson to his hotel room, where they smoked marijuana, and Johnson received oral sex from Wells. Johnson gave her $100 for the oral sex, and an extra $26 so Wells could buy a “cold drink.” At Johnson’s request, Wells gave him her room number. She also gave Johnson the number to Leagea’s cell phone. Wells gave the $100 to Leagea so he could try to “double it up” at the casino. She kept the $26 for herself.

¶ 5. The next evening, Wells called Johnson and asked if she could smoke more of his marijuana. Johnson agreed. As Wells was on her way to Johnson’s room, she encountered Leagea. Wells agreed that after Johnson let her in his hotel room, she would let Leagea into Johnson’s hotel room so Leagea could rob Johnson. Next, Johnson let Wells in his hotel room. Leagea waited in the hallway while Wells performed oral sex on Johnson again. Afterward, Wells let Leagea into Johnson’s room. Armed with a pistol, Leagea demanded money from Johnson. When Johnson did not immediately comply, Leagea hit Johnson with the pistol. When Johnson attempted to run out of the hotel room, Leagea shot Johnson twice in the back. Leagea and Wells fled the hotel and left Biloxi.

¶ 6. Security footage corroborated the fact that Leagea got off of the elevator on the fourth floor of the hotel, where Johnson’s hotel room was located. Security footage also captured Leagea leaving the hotel. A witness who was staying on the fourth floor of the hotel saw a man who he described as approximately the same size as Leagea in the hallway near Johnson’s hotel room shortly before Johnson was killed. The witness explained that the man he saw was acting suspiciously in that he was walking very slowly, and he turned around and walked away when the witness saw him. The witness did not see Leag-ea’s face, but he accurately described Leagea’s clothing.

¶ 7. Leagea was indicted for capital murder. He went to trial from July 20-24, 2011. Before Leagea’s trial, Wells pled guilty to armed robbery. She was sentenced to twenty years in the custody of the MDOC. Wells testified against Leagea. The prosecution also called Investigator Michael Brown of the Biloxi Police Department, who testified regarding the investigation of Johnson’s death and the apprehension of Wells and Leagea. Dr. Paul McGarry testified that he performed Johnson’s autopsy. Otherwise, the prosecution called a member of the hotel’s security staff as a witness, and a hotel guest who saw Leagea acting suspiciously in the hallway in the vicinity of Johnson’s hotel room.

¶ 8. During the jury-instructions conference, the circuit court refused Leagea’s requests to instruct the jury that it could convict him of simple murder or as an accessory after the fact. As previously mentioned, the jury found Leagea guilty of capital murder, but the jury was not able to unanimously agree on Leagea’s sentence. As a result, the circuit court sentenced Leagea to life in the custody of the MDOC. Following unsuccessful post-trial motions for a judgment notwithstanding the verdict or a new trial, Leagea appeals. He claims the circuit court erred when it refused his proposed jury instructions on simple murder and accessory after the fact.

STANDARD OF REVIEW

¶ 9. When confronted with issues concerning whether a circuit court erred when it refused a defendant’s jury instructions, “we are required to read and consider the jury instructions as a whole.... ” Brown v. State, 39 So.3d 890, 897 (¶ 27) (Miss.2010). “[J]urors must be given appropriate instructions [that] fairly announce the law applicable to the case so as not to create an injustice against the defendant.” Id. at 897-98 (¶ 27). Although a defendant is entitled “to present his theory of the case to the jury via appropriately worded jury instructions,” the circuit court may refuse an instruction that is not supported by the evidence. Id. at 898 (¶ 27). The circuit court may also refuse an instruction that contains an incorrect statement of law. Id. Finally, the circuit court may refuse an instruction that is covered in other instructions given to the jury. Id.

ANALYSIS

I. MURDER INSTRUCTION

¶ 10. Leagea claims the circuit court erred when it refused to instruct the jury that it could find him guilty of simple murder instead of capital murder. Proposed instruction D-l would have given the jury the option to convict Leagea of simple murder. And proposed instruction D^4 states, “if you find beyond a reasonable doubt that ... Leagea killed a human being with deliberate design to cause his death but that the killing was not done during the commission of a robbery then you may find the defendant guilty of murder.” The circuit court found that there was no evidence to support the conclusion that Leagea was guilty of simple murder. According to Leagea, “[b]y denying the requested instructions, the trial court deprived the jury of the opportunity to properly consider whether [he] should have been convicted of the lesser-included offense of murder.” Leagea also argues that the circuit court’s refusal of proposed instructions D-l and D-4 deprived him of his defense that Johnson was not killed during a robbery. Finally, Leagea argues that the circuit court’s “failure to instruct the jury on murder, as a lesser-included offense of capital murder, acted as a peremptory instruction on the underlying felony of robbery in the capital murder.”

¶ 11. Defendants have “an absolute right to have the jury instructed on lesser-included offenses if the evidence supports such an instruction.” Downs v. State, 962 So.2d 1255, 1260 (¶ 22) (Miss.2007). And “[d]efendants are entitled to have instructions on their theory of the case presented to the jury for which there is foundation in evidence, even though the evidence might be weak, insufficient, inconsistent, or of doubtful credibility.” Welch v. State, 566 So.2d 680, 684 (Miss.1990). “The merits of a defense theory fall within the purview of the jury to determine.” Lenard v. State, 51 So.3d 239, 249 (¶ 32) (Miss.Ct.App.2011).

¶ 12. In support of his argument, Leag-ea notes Wells’s testimony that Leagea demanded money from Johnson and told her to search Johnson’s room for money. Leagea further notes Wells’s testimony that Johnson offered to give Leagea money if he would leave without Wells. Finally, Leagea draws our attention to the fact that approximately $3,000 was discovered in Johnson’s room after he was killed. We interpret Leagea to argue that the jury could have found that Leagea did not kill Johnson during the course of a robbery because Leagea and Wells did not take all of Johnson’s money before they fled the scene.

¶ 13. Mississippi’s “armed[-]robbery statute includes ‘attempt,’ therefore a conviction based on armed robbery does not require that there be an actual taking.” Croft v. State, 992 So.2d 1151, 1159 (¶ 33) (Miss.2008). There was ample evidence that Leagea attempted to rob Johnson. Wells testified that she and Leagea had a conversation before she went into Johnson’s hotel room for the second time. According to Wells, Leagea said “that he needed to rob” Johnson. Leagea told Wells “when you come out [of Johnson’s hotel room], I’m going in.” After performing oral sex on Johnson, Wells let Leagea into Johnson’s hotel room. Leag-ea demanded that Johnson surrender his money. Wells testified that Leagea hit Johnson “in the head with the gun.” As Leagea was hitting Johnson, Leagea demanded that Johnson reveal where his money was.

¶ 14. “Instructions are not given unless [they are] supported by the evidence.” Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000). There was no evidence to contradict the testimony that Leagea went into Johnson’s hotel room to rob him. And there was no evidence that Leagea simply planned to kill Johnson without robbing him. Leagea chose not to testify. We do not hold his decision to exercise his constitutional right to remain silent against him. We merely note that he did not offer any of his own testimony to contradict the evidence against him. If the jury disregarded Wells’s testimony that Leagea attempted to rob Johnson, the jury would have been obligated to find Leagea not guilty of capital murder. We find that the circuit court acted within its discretion when it refused proposed instructions D-l and D-4 because there was no evidence to support them. This issue is without merit.

II. ACCESSORY-AFTER-THE-FACT INSTRUCTION

¶ 15. Leagea claims the circuit court erred when it refused proposed instruction D-2, which states:

The Court instructs the jury that the crime of “accessory after the fact” is committed when a person conceals, receives, relieves, aids[,] or assists any person, knowing that such person has committed a felony, with [the] intent to enable such person to escape or avoid arrest, trial, conviction[,] or punishment, after the commission of such felony.
For you to find ... Leagea guilty of this crime, you must be convinced that the prosecution has proved each of the following beyond a reasonable doubt:
First: That the crime of murder was committed;
Second: That ... Leagea knew of the commission of the above crime and thereafter aided or assisted the perpetrator by driving him from the scene of the offense; and
Third: That ... Leagea did the above act or acts intending to hinder the apprehension, arrest, trial[,] or punishment of another.
If you find all of the above facts[,] you may find ... Leagea guilty of the crime of accessory after the fact.

The circuit court refused proposed instruction D-2 because there was no evidence to support it. According to Leagea, the “jury could have believed that Wells committed the crime alone, and that Leagea merely helped her escape the [c]asino and authorities.” To support his argument, Leagea notes that Wells admitted that she wanted to make money so she could travel back to her home. Leagea also notes that Wells admitted that she contacted Johnson a second time because she wanted to get more money from him. Leagea argues that “[w]hile the evidence may be meager in support of this instruction, [he] had an absolute right to have the jury instructed on accessory after the fact.”

¶ 16. Essentially, Leagea argues that he was entitled to a lesser non-ineluded-offense instruction. “[A] lesser non-included offense applies where there is evidentiary support that a defendant is guilty of a lesser charge arising from the same nucleus of operative facts.” Green v. State, 884 So.2d 733, 737 (¶ 12) (Miss.2004). A circuit court can only give a lesser-offense instruction if there is evidence to support it. Williams v. State, 53 So.3d 734, 741 (¶ 33) (Miss.2010). A lesser-offense instruction must be refused if the circuit court finds that “taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences that may be drawn from the evidence in favor of the accused, that no hypothetical jury could find the fact as the accused suggests.” Id. at (¶ 34).

¶ 17. A person is guilty as an accessory after the fact if he “concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that the person had committed a felony, with intent to enable the felon to escape or to avoid arrest, trial, conviction or punishment after the commission of the felony_” Miss.Code Ann. § 97-1-5(1) (Supp.2012). “One cannot be both a principal in the crime and an accessory after the fact.” Mangum v. State, 762 So.2d 337, 343 (¶ 16) (Miss.2000). Proposed instruction D-2 would have only been appropriate if there was evidence that Wells killed Johnson and Leagea acted to help Wells avoid being punished for killing Johnson. Viewing the evidence in the light most favorable to Leagea, there was no evidence that Wells killed Johnson. Wells testified that Leagea shot Johnson twice in the back. As we mentioned previously, Leagea chose not to testify. It follows that there was no evidence that Leagea acted to help Wells avoid being punished for killing Johnson. Therefore, there was no evidence to support proposed instruction D-2. Consequently, we find that the circuit court did not err when it refused proposed instruction D-2. There is no merit to this issue.

¶ 18. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . According to Mississippi Code Annotated section 47 — 7—3( 1 )(f) (Rev.2011), Leagea is not eligible for parole.

      . Wells owned a semi-automatic .22 caliber pistol, but it was not registered to her. She testified that she took her pistol on her trip with Leagea because she had only recently met him. Wells also testified that Leagea removed the pistol from her bag while they were staying at the casino hotel. According to Wells, after she and Leagea fled the scene of Johnson’s murder, Leagea gave her the pistol and told her to throw it out of the passenger-side window of his car. Wells complied. She claimed the pistol landed in an unspecified body of water.