author: GRIFFIS, J., IRVING, J.,

text:
    A.B. and B.B., Appellants, v. LAUDERDALE COUNTY DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 2006-CA-01362-COA.
    Court of Appeals of Mississippi.
    June 17, 2008.
    Rehearing Denied Nov. 25, 2008.
    James A. Williams, attorney for appellants.
    Katherine Jane Caldwell, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. A.B. and B.B. appeal from the Lauderdale County Youth Court’s termination of their parental rights, alleging (1) that the court erred in failing to appoint a lawyer for A.B. at the initial hearing on a petition for neglect brought against them by the Lauderdale County Department of Human Services (DHS), (2) that the court erred in not considering less permanent alternatives to termination of their parental rights, and (3) that the court erred in terminating B.B.’s parental rights when B.B. did not receive notice or summons regarding the neglect hearing. Finding no error, we affirm.

FACTS

¶ 2. A.B. and B.B. are the parents of three children that are at issue here: two girls, Tonya and Sonya, and a boy, Ned. Tonya and Sonya are twins who were born on November 1, 2001. Ned was born on September 20, 2003. At some point while A.B. was pregnant with Ned, the Lauder-dale County Department of Human Services became aware of allegations that Tonya and Sonya were living in a poorly kept house and were being exposed to drugs. After an investigation, DHS took custody of Tonya and Sonya on August 26, 2003, pursuant to an order from the youth court. Around the same time, A.B. admitted that she was currently using drugs even though she was pregnant. DHS took custody of Ned on September 22, 2003, two days after he was born.

¶ 3. Thereafter, A.B. and B.B. entered into a service agreement with DHS that was intended to make A.B. and B.B. fit to rear their children. On May 4, 2004, the court returned custody of the three children to A.B. and B.B. because they had completed their service agreement. Subsequent inquiries by DHS revealed that A.B. and B.B. appeared to be taking adequate care of the children. DHS was relieved of any further' responsibility for the children on June 10, 2004.

,¶ 4. In early November 2004, A.B. attended her father’s funeral. Her actions at the funeral led to concerns that she was once again abusing drugs, and DHS was contacted. On November 9, 2004, after two unsuccessful attempts to locate A.B. and the children, Brenda Snowden, a social worker with DHS, went to A.B.’s home. Peering through a glass in a storm door, Snowden observed the three children, but no adults. One of the girls came over and opened the door. Snowden observed that Ned appeared to be adequately clothed and sufficiently cared for, but she noted that the same was not true of the twins. One of the girls was completely naked, while the other had on a diaper that was so saturated with urine and feces that it hung down to her knees. Snowden called repeatedly for A.B., to no avail. After walking down a hallway, Snowden found A.B. and a man on a bed in another room. The man was not B.B., and A.B. had on nothing but a T-shirt. Snowden stated that she had great difficulty waking A.B., who appeared to be in a deep slumber. Although it was two in the afternoon, A.B. stated that she was in bed because she had just fed the children breakfast and had then gone back to bed. Snowden requested a urine sample from A.B., which A.B. gave. Analysis of the sample revealed that it was too diluted to be useful in determining whether A.B. had been using drugs. Another urine sample taken later in November also came back as diluted.

¶ 5. On November 30, 2004, pursuant to a court order transferring custody of the children to DHS, Snowden, accompanied by Gypsy Ward, a Lauderdale County deputy, went to the home where she had found A.B. and the children on November 9. Snowden and Ward did not find A.B. or the children, but Ward found a plastic bag containing what appeared to be a contraband substance. Ward testified that the house was “horrible. It was-it was nasty. They didn’t have no [sic] power; didn’t have no [sic] water and they was [sic] using the toilet and couldn’t flush it.” After the discovery of what appeared to be a controlled substance, Ward contacted the Drug Task Force, and Anthony Ball, a drug task force agent, came to assist. After finding no one at the home, Snowden proceeded to a trailer on the other side of Lauderdale County where she had reason to believe the children were located. At the trailer, Snowden encountered B.B., who claimed that he did not know where A.B. was. However, one of the children told Snowden that A.B. had climbed out of a window of the trailer and had run away in response to Snowden’s approach. After she was located, A.B. denied that she had climbed out of a window of the trailer.

¶ 6. A.B. was arrested for possession of drugs based on the substance that was found in the plastic bag at the house on November 30. On December 30, 2004, the court held a neglect hearing. B.B. was not present at the hearing because he could not be located. A.B. was present at the hearing and admitted that she could not take care of her children due to her incarceration. Additionally, she testified that she passed a drug screen on November 30 or December 1 after she was incarcerated. Her probation officer, William Lucy, confirmed the truthfulness of this testimony. At the conclusion of the hearing, the court found that the children were neglected and ordered DHS to “immediately pursue termination of parental rights” of A.B. and B.B. On April 14, 2005, B.B. sent a letter to the court, explaining that he had retained an attorney. On May 26, 2005, DHS filed a petition to terminate A.B. and B.B.’s parental rights.

¶ 7. A hearing on the termination of parental rights was held on July 13, 2006, over a year after the filing of the petition and more than a year and a half after the neglect hearing. A.B. was present at the hearing with counsel. B.B. apparently could not be found and was not present at the hearing. At the hearing, testimony was elicited regarding the November 2004 events, as well as the events that had happened when A.B. and B.B. lost custody of them children in 2003. The court essentially refused to hear any evidence of A.B.’s rehabilitation between December 30, 2004, and the date of the hearing a year and a half later. Specifically, the court refused to allow A.B.’s probation officer to testify that A.B. had tested negative on two drug tests since November 2004.

¶ 8. In its order terminating parental rights, the court found that A.B. and B.B.:

exhibit ongoing behavior which would make it impossible to return the Minor Petitioners to said Respondents’ care and custody because said Respondents have a drug addiction, unlikely to change within a reasonable time, which condition makes said Respondents unable to assume minimally, acceptable care of the Minor Petitioners constituting grounds for termination of their parental rights....
The Court finds that the Respondents ... exhibit and have failed to eliminate ongoing behavior, identified to said Respondents by the Lauderdale County Department of Human Services, which prevents placement of the Minor Petitioners with said Respondents in spite of diligent efforts of the Department of Human Services to assist said Respondents constituting grounds for termination of their parental rights....
The Court finds that [Tonya, Sonya, and Ned] have been adjudicated to have been abused or neglected and custody has been transferred from [A.B. and B.B.] for placement pursuant to Section 43-15-13 of the Mississippi Code of 1972, Annotated, and a court of competent jurisdiction has determined that reunification shall not be in the Minor Petitioners’ best interest, constituting grounds for termination of their parental rights....

¶ 9. We now consider whether the youth court erred by terminating the parental rights of A.B. and B.B.

ANALYSIS

1. Appointment of Attorney

¶ 10. A.B. complains that she was not appointed an attorney at the December 30 neglect hearing. The record is void of any request by her for an attorney. Documentation sent to her regarding the neglect hearing clearly stated that she was entitled to have an attorney present to represent her. We have found nothing that indicates that the court should have sua sponte appointed A.B. an attorney. This issue is without merit.

2. Propriety of Termination

¶ 11. Although A.B. and B.B. frame their contentions on this issue in terms of the court’s failure to consider alternatives other than permanent termination of parental rights, we have chosen to address the core question: whether the court erred in terminating A.B. and B.B.’s parental lights.

¶ 12. There is a two-part test, initially outlined in Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984), that a court must use when deciding whether to terminate the parental rights of a natural parent. W.A.S. v. A.L.G., 949 So.2d 31, 35(¶ 10) (Miss.2007). “First, the petitioner must establish by ‘clear and convincing evidence that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child.’” Id. (quoting Petit, 443 So.2d at 877). If the court finds that the first prong is satisfied, it must then consider whether termination is in the best interest of the child. Id.

¶ 13. The Mississippi Legislature has established guidelines for determining whether the parental rights of a natural parent should be terminated. Mississippi Code Annotated section 93-15-103(3) (Rev. 2004) specifies several grounds upon which parental rights may be terminated. Clear and convincing evidence of any one of the grounds is sufficient to warrant termination. W.A.S., 949 So.2d at 35(¶ 11).

¶ 14. While the basis for terminating parental rights is clear and convincing evidence, on appeal, our standard of review dictates that we may reverse the decision of the youth court “only if reasonable men could not have found as the youth court did beyond a reasonable doubt.” May v. Harrison County Dep’t of Human Servs., 883 So.2d 74, 77(¶ 10) (Miss.2004). Additionally, where no jury was involved, the trial court’s factual determinations will only be disturbed where the record lacks substantial supporting evidence. Id. Substantial evidence is “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” G.Q.A. v. Harrison County Dep’t of Human Servs., 771 So.2d 331, 335(¶ 15) (Miss.2000) (quoting Hooks v. George County, 748 So.2d 678, 680(¶10) (Miss.1999)). Here, the youth court correctly found that there was substantial evidence to support the termination of parental rights.

¶ 15. Mississippi Code Annotated section 93 — 15—103(3)(e)(i) and (ii) (Rev.2004) provide:

(3) Grounds for termination of parental lights shall be based on one or more of the following factors:

(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, sever mental deficiencies or mental illness, or extremely physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent!.]

(Emphasis added).

¶ 16. The youth court found, and we agree, that the parents have failed to eliminate prior behavior identified by the child caring agency and the court. Previously, A.B., the mother, was pulled over by the police with her children in the car. The police found a burner, police scanner, and a recipe for crystal methamphetamine. A.B. also admitted to using crystal methamphetamine while pregnant. The father, B.B., had been arrested on drug charges and was not present during the current termination of parental rights proceedings. Both parents have served time in prison on drug-related charges. The parents were given another chance to show that they could adequately care for their children.! They failed.

¶ 17. Not even six months after they regained custody, a social worker from DHS came by the home to check on the children. In the middle of the afternoon, as she approached the door, the social worker saw the three young children inside the home, but she did not see an adult. After repeatedly knocking on the door, one of the children finally let the social worker in the house. The social worker saw one child, who was naked, and another child whose diaper was so saturated that it hung at the child’s knees. The social worker continued to call for A.B., but received no answer. When she finally found A.B., she was in her bedroom, lying on the bed with a man who was not her husband, wearing no underwear, and looking dazed. A.B. then submitted to a drug test, and when it came back diluted, A.B. refused to give a hair sample. The tidal judge correctly found:

Obviously if [A.B.’s] involved in controlled substances enough, she knows what the indicators would be if she were to give the hair sample and she flat refused to do that, that shows to the Court a lack of cooperation and desire to do those things necessary to rehabilitate herself and to regain custody of her children.

¶ 18. The same afternoon, a deputy sheriff arrived and found the children living in the house with no water or power. The deputy reported finding spoons, weights, and nine grams of amphetamines in the house. When asked if the house was a good place for a child, the deputy responded, “I wouldn’t have a dog in there.” Later, when the police were looking for A.B., one of her children claimed that she jumped out of a window to avoid them. Another officer testified that both A.B. and B.B. were still doing drugs.

¶ 19. In Ainsworth v. Natural Father, 414 So.2d 417, 420 (Miss.1982), the Court noted that “desertion” of a child involves an avoidance of a duty or obligation. Parents have a duty to provide their children with adequate care, a drug-free environment, electricity, and running water. Here, the conditions of the children’s home, where the social worker discovered this type of neglect, were sufficient to show that A.B. failed in her duty and obligation to provide adequate care for her children.

¶ 20. While it is true that the youth court should have taken all evidence of A.B.’s drug use into account, we find that there is more than enough evidence to show that A.B. was unfit to raise her children. The officers found spoons, weights, and nine grams of amphetamines. Although the drug charges were later dropped, the youth court could certainly find that A.B. was still using drugs. The possibility of drug use, coupled with the fact that A.B. was neglecting her children, was half-naked in bed with a strange man, was non-responsive to the social worker, claimed to have just fed breakfast to her children at 2:00 p.m., and refused to give a hair sample for a drug test after her urine sample came back diluted, all show that A.B. provided an unreasonable and unsafe environment for her children. As the trial judge stated, the “failure to cooperate with DHS further showed an indication that the conduct in controlled substances were [sic] preferred over the children.”

¶ 21. Although termination of parental rights is an extreme measure that should be used sparingly, in N.E. v. L.H., 761 So.2d 956, 961-62(¶ 12) (Miss.Ct.App.2000), this Court held:

Legal custody and guardianship by persons other than the parents as well as other permanent alternatives which end the supervision by the Department of Human Services should be considered as alternatives to the termination of parental rights, and these alternatives should be selected when, in the best interest of the child, parental contacts are desirable and it is possible to secure such placement without termination of parental rights.

The N.E. court also emphasized that the children’s needs, living conditions, family environment, and other circumstances must be taken into account when determining what is best for the children. Id. at 967(¶ 34). Here, the children were placed in the custody of their aunt and uncle. They were not handed over to complete strangers or put in an orphanage.

¶ 22. Having considered the factors set forth by this Court in N.E., and reviewed all of the available evidence as shown in the record, we find that there was sufficient evidence for the youth court to terminate parental rights. Accordingly, this issue is without merit.

3. Service on B.B.

¶ 23. B.B. contends that he did not receive notice or summons regarding the neglect hearing. However, the record reflects that the Lauderdale County Sheriffs Department committed a diligent search in trying to serve B.B. with notice of the adjudicatory hearing. The youth court noted that B.B. chose not to appear, even though he had knowledge of the hearing and he had been present at the prior proceedings. B.B.’s wife, A.B., also testified that she did not know his whereabouts. B.B.’s failure to appear in court, coupled with a recent arrest for methamphetamine, show his current unfitness to be a parent and his failure to eliminate prior behavior. Accordingly, this issue is without merit.

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

LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE AND CARLTON, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J., AND ISHEE, J. ROBERTS, J., NOT PARTICIPATING.

IRVING, J.,

Dissenting:

¶25. I believe the youth court judge failed to consider all of the relevant evidence before terminating the parental rights of A.B. and B.B. The evidence that the judge failed to consider related to the progress that A.B. had made with her substance abuse problem during the period of time from the date of the neglect hearing to the date of the termination hearing. With such a glaring omission of consideration of relevant evidence regarding AB.’s rehabilitation, I cannot agree that the judge’s decision was based on clear and convincing evidence. Therefore, I dissent. I would reverse and remand this case to the youth court for consideration of all the relevant evidence.

¶ 26. All of the pertinent facts are set out in the majority opinion. Therefore, it is not necessary that I lay a factual predicate before delving into the analysis that leads me to the view that the majority errs in finding that the judge appropriately terminated A.B.’s and B.B.’s parental rights.

¶ 27. The pertinent portion of the order terminating parental rights states:

[The Respondents, A.B. and B.B.] exhibit ongoing behavior which would make it impossible to return the Minor Petitioners to said Respondents’ care and custody because said Respondents have a drug addiction, unlikely to change within a reasonable time, which condition makes said Respondents unable to assume minimally, acceptable care of the Minor Petitioners constituting grounds for termination of their parental . rights....
The Court finds that the Respondents ... exhibit and have failed to eliminate ongoing behavior, identified to said Respondents by the Lauderdale County Department of Human Services, which prevents placement of the Minor Petitioners with said Respondents in spite of diligent efforts of the Department of Human Services to assist said Respondents constituting grounds for termination of their parental rights....
The Court finds that [Tonya, Sonya, and Ned] have been adjudicated to have been abused or neglected and custody has been transferred from [A.B. and B.B.] for placement pursuant to Section 43-15-13 of the Mississippi Code of 1972, Annotated, and a court of competent jurisdiction has determined that reunification shall not be in the Minor Petitioners’ best interest, constituting grounds for termination of their parental rights....

¶ 28. The majority correctly notes the two-part test that a court must use when deciding whether to terminate a natural parent’s parental rights: (1) “[the establishment] by ‘clear and convincing evidence that the objecting parent has either abandoned or deserted the child or is mentally or morally or otherwise unfit to rear or train the child,’ ” and (2) consideration of whether termination is in the best interest of the child. W.A.S. v. A.L.G., 949 So.2d 31, 35(¶ 10) (Miss.2007) quoting Petit v. Holifield, 443 So.2d 874, 877 (Miss.1984). The petitioner carries the burden of persuasion, and his failure to convince the court that he has met his burden as to the first prong eliminates the court’s obligation to consider the second prong. Id.

¶ 29. Mississippi Code Annotated section 93-15-103(3) (Rev.2004) specifies several grounds upon which parental rights may be terminated. Clear and convincing evidence of any one of the grounds is sufficient to warrant termination. W.AS., 949 So.2d at 35(¶ 11). The judge appeared to rely entirely on the grounds stated in sub-sections (e) and (h) which state in part:

(e) The parent exhibits ongoing behavior which would make it impossible to return the child to the parent’s care and custody:
(i) Because the parent has a diagnosable condition unlikely to change within a reasonable time such as alcohol or drug addiction, severe mental deficiencies or mental illness, or extreme physical incapacitation, which condition makes the parent unable to assume minimally, acceptable care of the child; or
(ii) Because the parent fails to eliminate behavior, identified by the child caring agency or the court, which prevents placement of said child with the parent in spite of diligent efforts of the child caring agency to assist the parent; [or]
(h) The child has been adjudicated to have been abused or neglected and custody has been transferred from the child’s parent(s) for placement pursuant to Section 43-15-13, and a court of competent jurisdiction has determined that reunification shall not be in the child’s best interest.

Miss.Code Ann. § 93-15-103(3).

¶ 30. In my opinion the court’s conclusions regarding these grounds did not take into account all of the evidence available. The court ignored in its entirety evidence that A.B. had tested negative for drugs on more than one occasion since the December 30 neglect hearing. The December 30 finding of neglect also was not based on A.B.’s and B.B.’s complete inabilities to care for the children, but rather was based on A.B.’s admission that she could not care for the children while incarcerated. I note that her incarceration was due to criminal charges that were later dropped when the substance found in the house was determined not to be a controlled substance. The court did not address the fact that the charges against A.B. had been dropped. Rather, the court stated that A.B. had a drug addiction that was unlikely to be cured. I note that no evidence shoving current drug use was presented to the court. The most that was presented was that A.B. had a history of prior drug use, that she had not cooperated when asked to provide a ham sample for testing, and that two different urine samples had come back diluted, meaning that they were neither positive nor negative for drug use.

¶ 31. Termination of parental rights is an extreme measure that should be used only when doing so is in the best interest of the child. It may be that the evidence presented to the court, especially that the children were unkempt on November 9 and that A.B. was in bed with a strange man, is sufficient to terminate parental rights. However, it is clear that the court should have looked at all of the evidence concerning A.B.’s alleged drug use, such as the testimony of A.B.’s parole officer and the evidence that the substance found in the house on November 30 was not actually illegal. This is especially true because the incorrect labeling of the substance as a controlled substance was why A.B. was incarcerated and unable to care for her children when the court adjudicated them neglected on December 30, 2004.

¶ 32. For the reasons presented, I dissent. I would reverse and remand this case to the Youth Court of Lauderdale County with directions to consider all of the evidence, including evidence of the progress made by A.B. with her substance abuse problem from the date of the neglect hearing to the date of the parental rights termination hearing.

KING, C.J., JOINS THIS SEPARATE WRITTEN OPINION.

      . We use false initials for the parents to protect the identity of the minor children, to whom we have also assigned fictitious names in this case.

      . The order was based on an affidavit executed by Snowden on November 30. In the affidavit, Snowden detailed what she found at A.B.’s home on November 9. According to Snowden, she sought the court order after the urine sample came back diluted and A.B. refused to submit to a hair screen.

      . Later analysis of the substance revealed that it was not illegal drugs, and possession charges against A.B. resulting from the discovery of the substance were dropped.

      . A.B. testified that she was no longer living at the home where she and the children had been living on November 9.

      . The record indicates that A.B. was arrested on November 30 or December 1, 2004, and remained in jail on the drug charge until May 11, 2005, when the charges were dropped because the substance seized on November 30 was not a controlled substance.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Timmy PRENTICE, Appellant, v. SCHINDLER ELEVATOR COMPANY and Zurich American Insurance Company, Appellees.
    No. 2007-WC-00815-COA.
    Court of Appeals of Mississippi.
    June 24, 2008.
    Rehearing Denied Dec. 16, 2008.

      Prentiss M. Grant, attorney for appellant.
    Benjamin U. Bowden, Gulfport, attorney for appellees.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Timmy Prentice filed a petition to controvert with the Mississippi Workers’ Compensation Commission. Schindler Elevator Company, the employer, and Zurich American Insurance Company, the insurer, responded by filing a motion to dismiss based on the statute of limitations. The Commission denied Schindler’s motion. On appeal, the circuit court reversed the Commission’s decision and dismissed Prentice’s claim finding that the statute of limitations had run. On appeal, Prentice argues that the circuit court erred because Schindler is estopped from asserting the statute of limitations as a defense. We reverse the judgment of the circuit court and remand this case to the commission.

FACTS

¶ 2. On April 23, 1998, Prentice was employed by Schindler in Jackson, Mississippi. He was injured after he fell out of a portable bathroom that had been suspended approximately fifteen feet above the ground. Prentice informed his supervisor, Doug McIntyre, about the injury, and his supervisor told him to fax an Alabama first notice of injury form to Schindler’s office in Birmingham, Alabama. Prentice went to the emergency room that night. Thereafter, he visited several doctors for medical attention due to his injury. The administrative law judge found that Prentice missed more than five days of work due to his injury.

¶ 3. Prentice left his employment with Schindler, but he later returned to work at Schindler’s Shreveport, Louisiana location. Initially, Schindler paid some of Prentice’s medical bills under workers’ compensation. Prentice eventually noticed that his medical bills were not being paid. Prentice contacted McIntyre, who gave him a phone number to call in New Jersey. Prentice called the number and spoke with a person identified as Mabel, an employee of Zurich. Mabel told Prentice that Zurich would pay his medical bills as soon as she received his B-3 form.

¶ 4. Prentice’s medical bills were never paid. As a result, Prentice filed his petition to controvert.

STANDARD OF REVIEW

¶ 5. An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence that supports the agency’s decision, Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997). This Court will overturn the Commission’s decision only if it was arbitrary and capricious. Id. at 1225. We do not review the facts on appeal to determine how we would resolve the factual issues if we were the triers of fact; rather, our function is to determine whether the factual determination made by the Commission is supported by substantial credible evidence. S. Cent. Bell Tel. Co. v. Aden, 474 So.2d 584, 589 (Miss.1985).

ANALYSIS

¶ 6. Prentice argues that the circuit court erred by reversing the Commission’s decision and finding that the statute of limitations had run on his claim. Specifically, Prentice argues that Schindler is barred from asserting the statute of limitations as a defense because it did not file a first notice of injury, which is required under Mississippi Code Annotated sections 71-3-67 (Rev.2000) and 71-3-11 (Rev. 2000). We will first discuss whether Schindler is required to follow the mandates of section 71-3-67. Next, we will discuss whether Schindler is estopped from asserting the statute of limitations as a defense.

I. Whether Schindler must comply with section 71-3-67.

¶ 7. Mississippi Code Annotated section 71-3-67(1) provides:

In the event of an injury which shall cause loss of time in excess of the waiting period prescribed in Section 71-3-II, a report thereof shall be filed with the commission by the employer or carrier, on a form approved by the commission for this purpose [Form B-3], within ten (10) days after the prescribed waiting period has been satisfied.

Mississippi Code Annotated section 71-3-11 provides that “[n]o compensation except medical benefits shall be allowed for the first five (5) days of the disability. In case the injury results in disability of fourteen (14) days or more, the compensation shall be allowed from the date of disability.” Applied to the instant case, section 71-3-67(1) requires that Schindler know that Prentice missed at least five days of work because of an accident covered under workers’ compensation before Schindler is required to file a Form B-3.

¶ 8. The Commission has interpreted “five days” to mean five consecutive or non-consecutive days. Mississippi Workers’ Compensation Commission General Rule 11 specifically rule states:

For purposes of determining whether an injured employee has satisfied the waiting period requirement of section 71-3-11 of the Law, a day of disability is considered to be any day on which the injured employee is unable, because of injury, to earn the same wages as before the injury, and neither the five (5) day period of disability nor the fourteen (14) day period of disability has to consist of consecutive days.

¶ 9. We now look to the record to determine whether Prentice missed the five days of work required by statute. Prentice testified that he did not get paid when he missed work to see a doctor. Prentice also testified that he either missed a full or half day of work getting an MRI on April 24, 1998. On April 28, 1998, Dr. Robert Estess took Prentice off work until he could see Dr. Robert Smith. Therefore, Prentice missed approximately four days of work before seeing Dr. Smith on May 4, 1998. The administrative law judge found that Prentice missed at least five days because he missed four days waiting to see Dr. Smith, and he missed at least one more full day of work to see Dr. Smith, Dr. Estess, or getting his MRI.

¶ 10. The Commission’s order is supported by substantial evidence that Prentice missed at least five days of work without pay and that Schindler knew these absences were attributable to Prentice’s April 23, 1998, injury. Therefore, we find that Schindler was required to file a notice of injury report, Form B-3, under section 71-3-67(l).

II. Whether Schindler is estopped from asserting the statute of limitations as a defense.

¶ 11. Next, we consider whether Schindler is estopped from asserting the statute of limitations as a defense because it did not file a Form B-3. Schindler argues that filing this form is not a prerequisite for the statute of limitations to run.

¶ 12. We are reminded that “the provisions of the Mississippi Workers’ Compensation Act are to be construed liberally and that ‘doubtful cases are to be resolved in favor of compensation so that the beneficial purposes of the act may be achieved.’ ” Holbrook ex rel. Holbrook v. Albright Mobile Homes, Inc., 703 So.2d 842, 844(¶ 5) (Miss.1997) (quoting Robinson v. Packard Elec. Div., 523 So.2d 329, 332 (Miss.1988)). In the case of Martin v. L. & A. Contracting Co., 249 Miss. 441, 162 So.2d 870 (1964), the Mississippi Supreme Court decided a case with facts almost identical to the case before us. The supreme court held:

They failed to comply with section 28 requiring the employer to make a report of the injury to the Mississippi commission, although Martin was covered under it. Appellees must have been well atoare of this fact. Martin toas not. Yet appellees failed to perform this duty imposed by section 28. Instead they chose to file notice of injury under the Florida act, in which benefits were substantially less. It would be inconsistent with the purposes of sections 28 and 49, and inequitable to an employee, for ap-pellees to take advantage of their failure to perform their duty to give notice of injury, and to choose the compensation act which would provide the least compensation for his work-connected injury.

Id. at 448, 162 So.2d at 873 (emphasis added). This reasoning was reaffirmed in Holbrook, when the supreme court ruled that “an employer and its insurance carrier [are] estopped from denying that the two-year statute of limitations [is] tolled where they failed to comply with the notice requirement of the act.” Holbrook, 703 So.2d at 844(¶ 6). Similarly, Schindler is estopped from asserting the statute of limitations as a defense. Because Schindler failed to comply with the notice requirements mandated under Martin and section 71-3-67(1), we must reverse the judgment of the circuit court.

¶ 13. Schindler also argues that it complied with Mississippi’s notice requirements because Prentice sent an Alabama first notice of injury form to its Birmingham office. This argument has two flaws. First, Prentice’s fax to Schindler’s Birmingham office does not prove that Schindler forwarded this form to either the Alabama or Mississippi Workers’ Compensation Commission. Second, Martin clearly stands for the proposition that one may receive workers’ compensation from more than one state and that sending a first notice of injury to another state’s agency does not qualify as notice under Mississippi law. Martin, 249 Miss. at 447-48, 162 So.2d at 872-73. Thus, we must reverse the judgment of the circuit court, reinstate the decision of the Commission to deny Schindler’s motion to dismiss, and remand the case to the Commission for proceedings consistent with this opinion.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED. THIS CASE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

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

      . See also, Mississippi Workers’ Compensation Commission has interpreted the use of this form by stating: "[tlhe original of this form must be filed with the Commission in all cases involving injuries resulting in lost time in excess of five (5) days and in death cases within ten (10) days after the employer receives notice of injury or death, (Mississippi Code Annotated Section 71-3-67 (1972); Procedural Rule 1).” List of forms currently in use by Commission (2008), http://www.mwcc. state.ms.us/forms/_formsall.asp


author: KING, C.J.,

text:
    Jerry COOLEY, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01555-COA.
    Court of Appeals of Mississippi.
    Nov. 25, 2008.
    Rehearing Denied Aug. 4, 2009.

      Leslie D. Roussell, Laurel, Marcus Douglas Evans, attorneys for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., IRVING and CHANDLER, JJ.
   KING, C.J.,

for the Court.

¶ 1. Jerry Cooley, Jr., was convicted of possession of a firearm by a convicted felon. The Wayne County Circuit Court sentenced Cooley to serve three years in the custody of the Mississippi Department of Corrections (MDOC) and ordered Cooley to pay a fine in the amount of $2,000. Cooley filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. The trial court denied the motion. Aggrieved, Cooley appeals, raising the following two issues:

I. Whether the trial court erred by allowing the shotgun into evidence; and
II. Whether the trial court erred by denying Cooley’s motion for a directed verdict.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. At approximately midnight on September 8, 2006, Michael Risen was awakened by his barking dogs. Risen looked outside to see what startled the dogs and saw an unfamiliar vehicle parked behind his truck. Then, Risen noticed an unfamiliar man walking around the back of his truck. Risen opened the front door and let one of the dogs out; the dog chased the man back to his vehicle. Risen took this opportunity to call the sheriffs department for assistance. He also grabbed his shotgun and went outside to confront the man.

¶ 3. When Risen confronted the man, he attempted to explain why he was on Risen’s property; Risen noticed that the man was intoxicated. While Risen was questioning the man, he attempted to leave in his vehicle. Risen opened the man’s car door and saw him reaching underneath the car seat. Then, Risen saw the butt of a shotgun underneath the car seat. Upon seeing the shotgun, Risen grabbed it and threw it into a ditch. The man got out of the car and attempted to leave on foot.

¶ 4. Eventually, Wayne County Deputy Russell Douglass arrived. He apprehended the suspect, and the man was identified as Cooley. Risen informed Deputy Douglass about the incident and showed him the shotgun that he tossed into the ditch. Deputy Douglass retrieved the shotgun from the ditch, which was adorned with duct tape and a red bandana. The shotgun was also broken into two pieces. Deputy Douglass testified that he locked the shotgun in his trunk, took Cooley to the police station, and placed him in a holding cell.

¶ 5. Deputy Douglass testified that the shotgun remained in his trunk until he turned it over to the sheriff at 10:07 a.m., shortly after the sheriff arrived at work. Before Deputy Douglass placed the shotgun into the evidence locker, he put the shotgun back together in one piece to make it easier to store.

¶ 6. Kevin Stevens, with the Wayne County Sheriffs Department, was assigned to Cooley’s case. Stevens testified that he had known Cooley since 1993 and was aware of Cooley’s criminal record, including Cooley’s two prior felony convictions. Stevens also testified that Cooley waived his rights and gave Stevens a statement, which he videotaped. In this statement, Cooley told Stevens that the shotgun belonged to him, and he used it to shoot wild dogs. The videotape was admitted into evidence without any objection.

¶ 7. On June 19, 2007, Cooley was convicted of possession of a firearm by a convicted felon. The trial court sentenced Cooley to serve three years in the custody of the MDOC and ordered Cooley to pay a fine in the amount of $2,000. Cooley filed a motion for a JNOY or, in the alternative, a motion for a new trial, which the trial court denied. Aggrieved, Cooley timely filed this appeal.

ANALYSIS

I. Whether the trial court erred by allowing the shotgun into evidence.

¶ 8. Cooley argues that the trial court erred by allowing the shotgun into evidence for two reasons. First, Cooley contends that the State failed to establish a proper chain of custody. Second, Cooley argues that the shotgun was not presented in the same manner in which it was found at the scene of the incident, which is evidence that the shotgun had been tampered with.

¶ 9. This Court reviews issues regarding the admission or exclusion of evidence under an abuse of discretion standard. Wheeler v. State, 943 So.2d 106, 107(5) (Miss.Ct.App.2006) (citing Ellis v. State, 934 So.2d 1000, 1004(17) (Miss.2006)). Whether the State properly established the chain of custody is determined within the trial court’s sound discretion. Bruce v. State, 746 So.2d 901, 911(54) (Miss.Ct.App.1998) (citing Nixon v. State, 336 So.2d 742, 744 (Miss.1976)). This Court will not disturb the trial court’s ruling absent a finding that the trial court abused its discretion. Id.

¶ 10. Based upon our review of the record, we find that the State presented sufficient evidence to establish a proper chain of custody. Cooley argues that the State should have to account for every person who handled the evidence. However, “the [supreme] court has never required a production of every person who handled the object or an accounting of every moment in order to establish proper chain of custody.” Steen v. State, 873 So.2d 155, 159(11) (Miss.Ct.App.2004) (citing Butler v. State, 592 So.2d 983, 985 (Miss.1991)). The State presented evidence that the shotgun was locked in Deputy Douglass’s trunk until he turned it over to the sheriff, and the shotgun was then placed in the evidence locker. Deputy Douglass testified that the shotgun remained in the evidence locker until Stevens brought it to court on the morning of the trial. We find that this evidence is sufficient to establish the chain of custody.

¶ 11. Cooley argues that the shotgun was not presented in the same manner in which it was found at the scene of the incident, suggesting that the shotgun had been tampered with. When reviewing questions regarding the chain of custody, the reviewing court should determine whether there is any positive indication of tampering with or substitution of the evidence. Steen, 873 So.2d at 159(11) (citing Thomas v. State, 828 So.2d 1270, 1272(7) (Miss.Ct.App.2002)). If there is evidence of tampering or substitution, “then the proof is insufficient to support a finding that the matter in question is what it purports to be.” Id. (citing Butler, 592 So.2d at 985). During the trial, Deputy Douglass positively identified the shotgun as the same shotgun that he had retrieved from the ditch. He testified that he found the shotgun in two pieces. However, he fixed the shotgun, putting it back together in one piece because that made it easier to store in the evidence locker. Based on this testimony, we find that the shotgun admitted into evidence is what the State purported it to be-the same shotgun that Deputy Douglass found at the scene of the incident. Cooley fails to present any evidence contradicting the authenticity of the shotgun. Thus, we find that Cooley’s argument is without merit.2

II. Whether the trial court erred by denying Cooley’s motion for a directed verdict.

¶ 12. Cooley argues that the trial court erred by denying his motion for a directed verdict because the State did not prove that the shotgun was an operable firearm. We find that Cooley’s argument is without merit.

¶ 13. Mississippi Code Annotated section 97-37-5(1) (Supp.2008) provides in pertinent part that:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm ....

In order to prove the crime of possession of a firearm by a convicted felon, the State must simply prove two things: (1) the defendant was in possession of a firearm, and (2) the defendant had been convicted of a felony crime. Short v. State, 929 So.2d 420, 427(21) (Miss.Ct.App.2006) (citing Miss.Code Ann. § 97-37-5(1) (Rev. 2000)).

¶ 14. In support of his argument, Cooley cites Burnside v. State, 105 Miss. 408, 62 So. 420 (1913). In Burnside, the defendant was convicted of carrying a concealed weapon. Id. at 412, 62 So. at 420. The evidence showed “[t]hat at the time the said pistol was so carried it could be neither loaded, unloaded, nor fired, but was filled with dirt, was rusty, and could not be made to open, to work, or to cock.” Id. Based on this description of the pistol, the supreme court reversed and rendered the defendant’s conviction, finding that the alleged weapon could not be called a pistol because it was “permanently inefficient” and lacked “the general characteristics of a pistol.” Id. at 413, 62 So. at 420. However, we find that Cooley’s case is dissimilar to Burnside. Instead, we find that Cooley’s case is more analogous to Ward v. State, 958 So.2d 1233 (Miss.Ct.App.2006).

¶ 15. In Ward, the defendant challenged his conviction of possession of marijuana while possessing a firearm and argued that the guns were not operable at the time that they were found in his home. Id. at 1239(22). This Court found that: (1) the statute made no such distinction, and (2) the defendant failed to provide evidence “that the firearms were not designed to expel a projectile by the action of an explosive or that they could not be readily converted to do so.” Id. (citing Miss.Code. Ann. § 41-29-152(2) (Supp. 2000)). Thus, this Court found that the defendant’s argument was without merit.

¶ 16. We find that the trial court did not err by denying Cooley’s motion for a directed verdict. First, there is a drastic difference between the condition of Burnside’s pistol and the condition of Cooley’s shotgun. Second, Cooley presents no evidence that the shotgun was inoperable. In fact, in his statement to Stevens, Cooley said that he used the shotgun to shoot wild dogs. It is doubtful that Cooley carried an inoperable weapon to defend himself against wild dogs. So, by his own admission, Cooley stated that the shotgun worked. Last, and most importantly, section 97-37-5(1) does not provide that the State must prove that the weapon is operable. Thus, we find that Cooley’s argument on this point is wholly without merit.

CONCLUSION

¶ 17. We find that the trial court did not err by allowing the shotgun into evidence because the State established the chain of custody, and the evidence showed that the shotgun admitted into evidence was the same weapon retrieved from the scene of the crime. We also find that the trial court did not err by denying Cooley’s motion for a directed verdict because whether the shotgun is operable is not an element of the offense. For these reasons, we affirm Cooley’s conviction and sentence.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $2,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


text:
    Dell H. PALMER, Tanja E. Adams and Audrey Neely, Appellants v. MISSISSIPPI REAL ESTATE COMMISSION, Appellee.
    No. 2007-CC-01660-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2008.
    Rehearing Denied March 24, 2009.
    Certiorari Denied July 23, 2009.

      Roy H. Liddell, Clint Douglas Vander-ver, Ridgeland, attorneys for appellants.
    John L. Maxey, Paul Hobart Kimble, Jackson, attorneys for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. This case arises from a complaint filed with the Mississippi Real Estate Commission (the “Commission”) by Cynthia Curley, the buyer of residential property in Jackson, Mississippi, alleging improper conduct by three real estate agents. Tanja E. Adams and Audrey Neely were the sales agents in the transaction, and Dell H. Palmer was the responsible broker who supervised their work. After conducting a hearing, the Commission found the agents guilty of misconduct and disciplined them by temporarily suspending their licenses and ordering them to complete additional continuing education courses. The Madison County Circuit Court affirmed the Commission’s decision.

¶ 2. Aggrieved by the decisions of the Commission and the circuit court, Adams, Neely, and Palmer appeal, alleging the following points of error: (1) whether the Commission’s findings were supported by substantial evidence, or whether such findings were arbitrary and capricious, and (2) whether the Commission relied upon violations not included in the complaint in rendering its decision. Finding no error, we affirm the judgment of the circuit court, which affirmed the decision of the Commission.

FACTS

¶ 3. Realty Executives, through its agent, Adams, had an oral listing for the sale of a residence located at 3603 North-view Drive in Jackson, Mississippi. The price advertised was $130,000. On October 3, 2005, Curley offered to purchase the property for $126,000. On the same day, Curley signed a dual agency confirmation form, indicating her consent to allow Adams to act as the agent for both Curley and the seller — identified on the form as Big Z Properties, LLC. Eight days later, John Zehr, acting as manager for Big Z, signed a separate dual agency confirmation form. This form was never signed or acknowledged by Curley. The dual agency confirmation form executed by Curley at the time she made the offer was not signed by Zehr until December 8, 2005, the day the transaction closed, further confusing the confirmation of a dual agency. Zehr also completed a “Working with a Real Estate Broker” form on the same day. However, the document did not identify that he was acting as the representative for Big Z. Instead, the document appeared to be signed in Zehr’s individual capacity.

¶ 4. A property condition disclosure statement form was allegedly signed and dated by Zehr on October 12, 2005. Neely, another agent for Realty Executives, alleged that she gave this form to Curley prior to closing. However, the document was not signed by Curley, nor was it submitted to the Commission during its investigation. In fact, it did not appear in the Appellants’ files with the other documents relating to the subject transaction.

¶ 5. On November 22, 2005, a contract of sale was accepted. The contract identified the seller as John Zehr, and Zehr signed the contract in that capacity. The contract required the buyer to provide a down payment of 20% of the purchase price. According to Curley, she had told Adams at the time she executed the offer that she only had $100 and that she did not have the financial means to make a down payment of 20% of the purchase price. However, Curley claimed that Adams told her she did not have to worry about it. At the hearing, Adams denied making such a statement.

¶ 6. With Curley having insufficient funds of her own, the 20% down payment was accomplished in the following manner. Curley testified that prior to the closing, the lender required confirmation of her ability to pay a 20% down payment. This was accomplished when Maranatha Services, Inc., a charitable organization, deposited $25,200 into Curley’s credit union account where it was held for six days. The deposit gave the lender the opportunity to verify that the buyer had the financial capacity to pay the $25,200 down payment. After the lender had verified Curley’s finances, the money was drafted out of the account.

¶ 7. The closing took place on December 8, 2005. The HUD-1 closing statement showed the sales price to be $126,000, and the statement reflected the principal amount of the new loan to be $100,800. Curley allegedly made a cash payment in the amount of $27,442.79 at the closing, which represented the down payment and closing costs. However, there was some dispute as to whether a check in that amount was actually brought to the closing. The closing statement reflected that this amount represented the cash paid by Curley. The fact that Curley received the proceeds for the down payment from the seller was not reflected in the closing statement. It merely revealed the financing to be a conventional uninsured loan, for which Curley personally provided a 20% down payment.

¶ 8. Zehr admitted that he gave Marana-tha the money that it provided to Curley. The record before this Court contains a copy of a check from Big Z in the amount of $27,442.79 payable to Regions Bank that listed Maranatha on the memo line. Another copy of a Big Z check in the amount of $2,500 was payable to Maranatha. Together, the checks totaled the $29,942.79 that was listed on an invoice from Marana-tha and sent to Big Z.

¶ 9. A few months after the closing, Cur-ley decided to sell the house and contacted Realty Executives for assistance. Curley claimed that she could no longer afford the mortgage payments. Curley testified that before calling Realty Executives, she consulted another realtor with whom she was familiar. After examining the closing documents, that realtor told Curley that some of her paperwork was missing. Subsequently, Curley was contacted by the Commission regarding the discrepancies, and a complaint was filed against the Appellants.

¶ 10. A hearing was held before the Commission on January 16, 2007. After hearing the evidence, the Commission found that Palmer, Adams, and Neely had violated the Real Estate Brokers License Act of 1954, specifically Mississippi Code Annotated section 73-35-21(l)(m) (Rev. 2008); Mississippi Code Annotated section 89-1-521(£) (Rev.1999); and Rule IV. E.3(c)(3) of the Mississippi Real Estate Commission’s Rules and Regulations. Specifically, the Commission found the Appellants guilty of the following: (1) failing to provide a property condition disclosure statement as required by law, (2) failing to have a dual agency confirmation form properly executed by the seller, and (3) having certain irregularities in the contract of sale and closing statement regarding down payment assistance provided by a nonparty charity to the buyer. Additionally, the Commission found that Palmer, as the responsible broker, was the ultimate licensee that the Commission relied on to supervise the agents in order to avoid these types of violations. According to the Commission, her failure to properly supervise Adams and Neely made her liable for their actions.

¶ 11. As discipline, the Commission suspended each of the Appellants and ordered them to complete additional continuing education courses. The Commission required each of them to complete eight additional hours, four in the subject of agency and four in the subject of license law. Palmer’s and Adams’s suspensions were for ninety days, with Palmer’s suspension held in abeyance. Neely’s suspension was for thirty days. Palmer, Adams, and Neely filed an appeal with the Circuit Court of Madison County, which affirmed the decision of the Commission. They now appeal to this Court.

STANDARD OF REVIEW

¶ 12. This Court’s general standard of review is limited to determining whether or not the Commission’s action was (1) supported by credible evidence, (2) arbitrary or capricious, (3) beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. McFadden v. Miss. State Bd. of Med. Licensure, 735 So.2d 145, 151(¶20) (Miss.1999) (citing Miss. State Bd. of Nursing v. Wilson, 624 So.2d 485, 489 (Miss.1993)). The supreme court has held that: “In attempting to determine the sufficiency and applicability of MREC’s rules ... it is proper to accord deference to the agency’s construction of its own rules and regulations.” Miss. Real Estate Comm’n v. Geico Fin. Servs., Inc., 602 So.2d 1155, 1156 (Miss.1992) (citing Melody Manor Convalescent Ctr. v. Miss. State Dep’t of Health, 546 So.2d 972, 974 (Miss.1989)) (“Great deference is accorded to an administrative agency’s construction of its own rules and regulations and the statutes under which it operates.”).

¶ 13. Because a professional license is at stake in this case, the Commission had the burden of proving its case against the respondents by clear and convincing evidence. McFadden, 735 So.2d at 152(1124); see also Miss. State Bd. of Psychological Exam’rs v. Hosford, 508 So.2d 1049, 1054 (Miss.1987); Hogan v. Miss. Bd. of Nursing, 457 So.2d 931, 934 (Miss.1984). “In order to take or suspend the license of a real estate broker under a charge of ... improper dealings, the proof need not be beyond a reasonable doubt, ... but the testimony must clearly establish the guilt of the respondent.” Miss. Real Estate Comm’n v. Anding, 732 So.2d 192, 197(¶ 13) (Miss.1999) (quoting Miss. Real Estate Comm’n v. Ryan, 248 So.2d 790, 793 (Miss.1971)); see also Miss. Real Estate Comm’n v. White, 586 So.2d 805, 808 (Miss.1991); Harris v. Miss. Real Estate Comm’n, 500 So.2d 958, 962 (Miss.1986). “Proof of surmise, conjecture, speculation or suspicion is not sufficient.” Anding, 732 So.2d at 197(¶ 13) (quoting Ryan, 248 So.2d at 793).

ANALYSIS

Whether the Commission’s findings were supported by substantial evidence.

A. The Dual Agency Agreement

¶ 14. The Appellants make two arguments concerning their roles as dual agents for both Big Z and Curley. First, they argue that Big Z, represented in the transaction by Zehr, was a limited liability company (LLC); therefore, a dual agency disclosure was not required pursuant to Rule IV.E.4 of the Rules and Regulations of the Mississippi Real Estate Commission. Alternatively, the Appellants point out that both Zehr and Curley were fully aware that the Appellants were acting as dual agents, as evidenced by the testimony of both parties and by the dual agency disclosures signed by both parties.

¶ 15. The Commission held that the Appellants violated Rule IV.E.3(c)(3) of the Commission’s Rules and Regulations which states:

The Broker must confirm that the buyer(s) understands and consents to the consensual dual agency relationship pri- or to the signing of an offer to purchase. The buyer shall give his/her consent by signing the MREC Dual Agency Confirmation Form which shall be attached to the offer to purchase. The Broker must confirm that the seller(s) also understands and consents to the consensual dual agency relationship prior to presenting the offer to purchase. The seller shall give his/her consent by signing the MREC Dual Agency Confirmation Form attached to the buyer’s offer. The form shall remain attached to the offer to purchase regardless of the outcome of the offer to purchase.

The Appellants contend that this requirement does not apply because the transaction involved an LLC — one of the exceptions to Rule IV.E.3(c)(3) found in Rule IV.E.4.

¶ 16. However, the Commission found that the transaction did not fall within the LLC exception because it was unclear whether the seller was selling the property as an individual or as an LLC. The Commission found that:

the seller signed as an individual (not as a limited liability company) the Working With a Real Estate Broker form dated October 3, 2005, the Contract for Sale and Purchase of Property dated November 22, 2005, the Contract Addendum dated November 22, 2005, and another Dual Agency Confirmation form dated July 27, 2005, on this property.

Because this issue was unclear, the Commission found that the Appellants were indeed required to conform to the requirements of Rule IV.E.3(c)(3), which they did not.

¶ 17. There is substantial evidence of the confusion created by forms signed by the seller as an individual, not as an LLC. This evidence is listed in the Commission’s findings of fact and should not be disturbed by this Court. To find that Curley was put on notice that she was purchasing the property from an LLC would require this Court to totally disregard the Commission’s finding that by signing numerous other documents as an individual, the seller created the confusion. Such a finding would be especially disconcerting in light of the fact that the transaction involved a poor, inexperienced buyer. Accordingly, we find no merit to this issue.

B. The Property Condition Disclosure Statement

¶ 18. Next, the Appellants argue that they substantially complied with Mississippi Code Annotated section 89-1-521(1), which required them to deliver a property disclosure statement to Curley, the buyer. Although the Commission found no property disclosure statement in the file for the transaction, the Appellants presented such a statement at the hearing. The statement was not signed by Curley, but Adams testified that Neely believed that she had delivered a property disclosure statement to Curley. Also, Curley did not deny having received a copy of the statement. Accordingly, the Appellants argue that they complied with section 89-1-521(1) and that Curley was properly put on notice of the property disclosures; therefore, they argue that the Commission erred in finding them guilty of violating the statute.

¶ 19. In response, the Commission points out that its investigation revealed that a disclosure statement was not kept in the Appellants’ file for the transaction. The Commission also notes that the Appellants could not explain the absence of any such form from the file. In conclusion, the Commission argues that the fact that the Appellants did not maintain the statement as required served as substantial evidence of their failure to comply with section 89-1-521(1). Additionally, the Commission notes that the property disclosure statement that the Appellants introduced into the record was not signed by Curley.

¶ 20. We are not persuaded by the Appellants’ arguments. The Appellants could not explain to the Commission why them files had not been maintained as required by the Commission’s regulations. Further, there was no evidence that the statement was delivered to the buyer as required by section 89-1-521(1). To reverse in this instance would be the equivalent of merely reweighing the evidence presented to the Commission. “This Court generally will not reweigh facts or substitute its [judgment] for that of the administrative agency.” Anding, 732 So.2d at 198(¶ 18) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1216 (Miss.1993)). Consequently, our standard of review prohibits such a course of action, particularly where the Commission determined that “[t]he testimony did not confirm the Disclosure Statement was delivered to the buyer as required by law.” Accordingly, we must conclude that this issue lacks merit.

C. Down Payment Assistance

¶21. Finally, the Commission held that the Appellants violated section 73-35-21(l)(m) which prohibits: “Any act or conduct ... which constitutes or demonstrates ... improper dealing.” The Commission found the transaction to be improper because the details of the transaction were not accurately reflected in the contract of sale or on the closing statement — details of which the Appellants were aware. The Commission’s order makes the following finding of fact:

In this case a 20% down payment was provided by a non-profit corporation and then immediately repaid to the non-profit corporation. This payment was not reflected on the HUD-1. Thus, the seller in truth sold the property which had a contract price of $126,000.00 for approximately $100,000.00. An investor in the secondary market would not be aware of the details of the transaction and in particular since it would not be alerted that the down payment by the buyer had actually not originated from her funds. The Administrator testified that in a transaction such as this, when a high[-]risk borrower does not invest a substantial amount of equity, the probability of default increases considerably. Further, the Administrator testified the actual value of the sale here was substantially below the $126,000.00 contract sales price because the seller paid $27,442.79 on behalf of the buyer.

¶22. The Appellants note that neither party alleged that the down payment assistance was illegal. However, that is not the issue. The issue here is whether this transaction demonstrated “improper dealing” on the part of the Appellants. The Commission concluded that it did, and that conclusion is supported by substantial evidence. This was a high-risk loan characterized as a low-risk loan by the actions of the seller, all unbeknownst to HUD and the lender.

¶ 23. This case is illustrative of some of the reasons this country is presently in a financial and mortgage crisis. The facts presently before us demonstrate the truth of the old maxim, “if it sounds too good to be true, it probably is.”

¶ 24. A Realty Executives realtor sign was posted in the yard even though Realty Executives could produce no written listing agreement with Zehr, the owner. Neely showed the house to Curley. Adams and Neely are Palmer’s sister and niece, respectively. Based on the record, the buyer, Curley, a health-care technician at the Veteran’s Affairs Center in Jackson, was not a good credit risk. She was also unaware of the intricacies involved in a residential real estate transaction.

¶25. Initially, Curley qualified for an 85% loan and was interested in Zehr’s property. Adams testified she contacted Zehr to see if he was interested in an 85% buyer. After Curley agreed to purchase the house for $126,000, People’s Choice Bank discovered that Zehr had not exclusively listed the property to Realty Executives. Accordingly, People’s Choice Bank increased the down payment requirement to 20%. A 20% down payment on a $126,000 home would have required Curley to produce over $25,000 of her own funds. According to Curley, when she told Adams, the realtor, that she had only $100 available for a down payment, Adams responded that Curley’s financial situation would be no problem.

¶ 26. Adams contacted Zehr to inform him that Curley would only qualify for an 80% loan. Adams also asked Zehr if “we still had a deal” with only 80% financing. Zehr approved. It is curious why Zehr, the seller, had any interest whatsoever in the type or percentage of financing Curley intended to use. It is also unusual that a realtor would expect a seller to have any more or less desire to move forward on a transaction based on the level of financing the buyer needed. It would only appear relevant if the realtor knew the seller intended to pay the buyer’s down payment.

¶ 27. Curley did not have to produce a down payment. Zehr, the seller, provided that down payment through a network of legal entities. Curley — who had $17 in her account prior to the down payment deposit — testified she did not know how the down payment of over $26,000 came to be deposited into her credit union account or who deposited it. The evidence indicates that a man named Damien from Windsor Financial, LLC walked Curley to the credit union with a check to deposit in her account and instructed her not to touch it during the six days it remained in her account. After People’s Choice Bank verified that Curley had sufficient funds in her account to make the 20% down payment, the $26,000 was mysteriously drafted out of Curley’s account. This is certainly not an irrevocable gift.

¶ 28. Adams coordinated closely with David in making sure that Curley would qualify for the loan. When asked: “what do you know about Ms. Curley going out and getting down payment assistance,” Adams responded as follows:

Well, I knew that she had that as an option all along for part of her loan situation, her down payment. And we were pleased that she was going to own 20 percent of the property instead of owing [a] 20 percent second mortgage which was the other option. And then that would set — you know, we were just thrilled that she could then, you know, have less debt. But she was supposedly, according to Dave Kennedy, qualified for more debt, based on his qualification and her income and so forth. But we chose to just gift it, you know, and not do a second mortgage.

(Emphasis added).

¶ 29. Adams specifically included herself in the seller’s decision to “gift” the down payment to Curley. It is obvious that Adams was fully aware that Zehr, the seller, intended to pay Curley’s down payment by funneling money from Zehr through David’s companies Maranatha Services, Inc., and Windsor Financial, then through Larry, the closing agent, and then finally back to Zehr at closing. Neely even testified that when she arrived at the closing, David was in the parking lot, where he delivered the down payment check to Curley. Further, Neely testified that David told Curley to give the check to Larry, the closing agent.

¶ 30. Zehr testified that he buys, renovates, and sells houses. Zehr admitted that he never met Curley. He first saw her at the Commission hearing. Zehr stated that in his business in the Jackson metropolitan area, he provided down payment assistance 80% of the time. Zehr testified that David Smith appraised the house for $130,000. Two years earlier, the house at issue had been sold for $28,000. According to Zehr, he used Smith’s appraisal services because Smith was a neighbor convenient to his home, a friend, and someone who “couldn’t be bought.” When asked about the sale contract that he signed (in which the buyer was to pay a 20% down payment), Zehr claimed to have a loss of memory. He denied having any memory of the events involving the down payment assistance program. However, he admitted he signed two checks to Regions Bank and Maranatha Services, Inc., for the down payment assistance and Mar-anatha’s fee. When asked whether he received $126,000 for his house, he answered, “[tjhat’s what it shows on the HUD.” In reality, considering that Zehr provided the down payment so Curley could qualify for a HUD loan, Zehr sold his house for $100,800, which was 100% of the loan. When asked whether he would have sold the house for $100,000, Zehr answered, “I can’t say.”

¶ 31. Robert Praytor, the first witness to testify, testified that he was the administrator for the Mississippi Real Estate Commission, a licensed real estate broker, a certified general real estate appraiser, and a professor of real estate at Delta State University. Praytor testified that Curley contacted the Commission quite upset that she might have purchased a piece of property where the price had been inflated and that other matters were not properly done. Curley said she had recently seen things on television and heard things on the radio about some information about mortgage fraud in the Jackson area. According to Praytor, Curley’s house was listed on the Multiple Listing Service two years earlier and had sold for $28,000. Praytor also testified that Adams was a member of the Multiple Listing Service at that time. Praytor discussed the responsibilities that a dual listing agent owes to a buyer. According to Praytor, the Appellants violated their duties to Curley regarding informing the buyer of all relevant information concerning the transaction. Praytor explained how the HUD closing statement was false and misleading to any third party who might rely on it. Praytor also testified that the mortgage was actually a high-risk mortgage where the buyer did not pay a 20% down payment. According to Praytor, this was an uninsured 100% mortgage where the seller had paid the borrower’s down payment and effectively reduced his selling price to approximately $100,000.

¶ 32. To summarize, Zehr owned a house that had two years earlier been sold for $28,000, offered it for sale for $130,000, agreed to sell it for $126,000, placed the 20% down payment (funneled through at least two companies) in the buyer’s account to inflate the borrower’s apparent status so that she could falsely qualify for a loan, and then finally sold the house, despite what was represented in the pa-perwoi’k, for less than $100,000. Adams, Neely, and Palmer knowingly participated in Zehr’s elaborate scheme. Based on their dual listing agent status, they owed Curley fiduciary duties and duties of good faith and fair dealing. Adams, Neely, and Palmer abdicated their agency responsibilities and made their commissions on the sale of the property. The Commission’s decision to discipline the Appellants by temporarily suspending their licenses and ordering continuing education is supported by substantial evidence. Accordingly, this issue is without merit.

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

LEE AND MYERS, P.JJ., BARNES, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J, CONCURS IN RESULT ONLY. IRVING, J., CONCURS IN PART AND IN THE RESULT. ISHEE, J., CONCURS IN PART. CHANDLER, J., NOT PARTICIPATING.

      . Adams testified that Curley told her that problems in the neighborhood led to Curley's decision to sell the house. However, Curley broke down on the witness stand and testified that she had to sell the house because she could not afford the mortgage payments.

      . It was disputed whether Curley first contacted the Commission or whether the Commission first contacted Curley.

      . David Kennedy is the only listed officer of Windsor Financial, LLC. Curiously, David is also the only listed officer of the charitable organization and conduit used in this transaction, Maranatha Services, Inc. Larry Kennedy, the closing agent, is David's cousin.


author: BARNES, J.,

text:
    Willie Marcus KNIGHT, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KM-00498-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.

      Jay Max Kilpatrick, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Willie Marcus Knight appeals his conviction of DUI First Offense and subsequent denial by the Circuit Court of Newton County of his “Motion to Reconsider and Amend Judgment and in the Alternative for a New Trial.” Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of January 27, 2007, a Newton County Sheriffs Department deputy, Jamie Leach, witnessed a truck traveling west on Highway 494. The truck turned south onto Chunky Duffee Road. About twenty minutes later, the same truck returned going north on the same road headed toward the intersection of Highway 494. The vehicle accelerated, ran the stop sign, and, according to Deputy Leach, “jumped Highway 494,” with the all four wheels leaving the ground as it crossed the intersection. Deputy Leach immediately sto]oped the vehicle. Knight, a nineteen-year-old male, was the driver; three other teenage passengers were also in the truck. Upon request, Knight produced his driver’s license and insurance information and handed it to Deputy Leach, who detected the odor of an alcoholic beverage coming from the vehicle. Deputy Leach also observed a twenty-pack of beer, which had approximately six or seven cold, unopened cans left in the box. Knight admitted that the beers were his. Deputy Leach asked Knight to step out of the vehicle, and he complied. When Deputy Leach asked Knight whether he had been drinking, Knight admitted that he had consumed one or two beers. Knight was very cooperative, did not stumble or stagger, and his speech was not slurred. Deputy Leach did not administer any field sobriety tests; however, he did ask Knight to take a breathalyzer test at the scene. Knight refused; so Deputy Leach took him into custody and transported him to the Newton County Sheriffs Department. Once there, Knight again refused to take the Intoxilyzer 8000 test, and he was charged with a DUI refusal. At trial, Deputy Leach testified that Knight refused the test because Knight said he did not believe he would pass it.

¶ 3. Knight was convicted in Newton County Justice Court on April 17, 2007, of reckless driving in violation of Mississippi Code Annotated section 63-3-1201 (Rev. 2004), of possession of beer in a dry county in violation of Mississippi Code Annotated 67-3-13 (Rev.2005), and of DUI First Offense in violation of Mississippi Code Annotated section 63 — 11—30(l)(a) (Rev.2004). On April 30, 2007, Knight appealed his DUI First Offense and possession of beer convictions to the Circuit Court of Newton County. Knight did not appeal his reckless driving conviction. On December 12, 2007, the circuit court, in a bench trial, found Knight guilty of both offenses. Knight filed a “Motion to Reconsider and Amend Judgment and in the Alternative for a New Trial” on December 19, 2007, which the circuit court subsequently denied on February 26, 2008. In the present appeal, Knight challenges his conviction for the DUI First Offense; he does not appeal his conviction for possession of beer.

STANDARD OF REVIEW

¶4. The trial judge in a bench trial acts as “ ‘the jury’ for all purposes of resolving issues of fact.” Doolie v. State, 856 So.2d 669, 671(¶ 7) (Miss.Ct.App.2003). “ ‘A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,’ and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Id. (citing Mason v. State, 799 So.2d 884, 885(¶ 4) (Miss.Ct.App.2001)). “When a trial court sits without a jury, this Court will reverse only when the findings of the trial judge are manifestly wrong or clearly erroneous.” Walker v. State, 913 So.2d 411, 412(¶ 4) (Miss.Ct.App.2005) (citing Amerson v. State, 648 So.2d 58, 60 (Miss.1994)).

¶ 5. We review a motion to reconsider under an abuse-of-discretion standard. Ducote v. State, 970 So.2d 1309, 1312(¶ 6) (Miss.Ct.App.2007) (citing Acker v. State, 797 So.2d 966, 969(¶10) (Miss.2001)). “A motion for a new trial attacks the weight of the evidence and is addressed to the trial court’s sound discretion.” Turner v. State, 910 So.2d 598, 602(¶ 16) (Miss.Ct.App.2005) (citation omitted). A circuit court’s denial of a motion for a new trial will only be reversed “if we determine that the trial court abused its discretion.” Id. A new trial should not be ordered “unless ... the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.” Id. (citation omitted). “When determining whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict.” Jones v. State, 958 So.2d 840, 843(¶ 6) (Miss.Ct.App.2007) (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)).

Whether there was sufficient evidence to sustain a conviction for DUI First Offense.

¶ 6. Mississippi Code Annotated section 63-ll-30(l)(a) makes it “unlawful for any person to drive or otherwise operate a vehicle 'within this state who ... is under the influence of intoxicating liquor.” This particular subsection of the statute “is commonly referred to as ‘common law DUI.’ ” Gilpatrick v. State, 991 So.2d 130, 133(¶ 18) (Miss.2008). In cases where the “defendant’s blood[-]alcohol results are unavailable ... but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to [operate] the vehicle was impaired by the consumption of alcohol[,]” common law DUI can be proven. Id. (citing Leuer v. City of Flowood, 744 So.2d 266, 268(¶ 7) (Miss.1999)).

¶ 7. The evidence considered by the circuit court in its determination of whether Knight was driving under the influence was that: (1) Knight was driving in a reckless manner; (2) alcohol was present in his vehicle; (3) the smell of alcohol was present around his vehicle; (4) Knight admitted that he had consumed a couple of beers at some point that evening; and (5) Knight refused to submit to a breathalyzer test. Knight claims that the State failed to meet its burden of proof beyond a reasonable doubt that he was driving under the influence of an intoxicating liquor. Knight argues that the evidence presented was not sufficient, and the fact that he was not exhibiting any physical signs of impairment, such as stumbling or slurred speech, was evidence that he was not impaired.

A. Consideration of the Smell of Alcohol and the Presence of Beer Cans in Knight’s Truck

¶ 8. Knight cites Richbourg v. State, 744 So.2d 352, 357(¶ 14) (Miss.Ct.App.1999) for the proposition that the mere smell of alcohol on a person is not sufficient to establish a prima facie case of driving under the influence. In Richbourg, the defendant had a motor vehicle accident, and upon arrival at the accident scene, the Mississippi state trooper smelled alcohol “about the person.” The trooper also observed open beer cans in the trunk of Richbourg’s car. Id. at 354(¶ 3). The supreme court found that this evidence was not sufficient to “establish a prima facie case of Richbourg’s guilt of driving under the influence.” Id. at 357(¶ 14).

¶ 9. Knight argues that Richbourg is on point with the facts in the present case; however, we find there to be distinct differences. The open beer cans in Rich-bourg’s vehicle were located in the trunk of his vehicle, left over from a party the night before, and had raptured from the impact of the accident. Id. at 354 (¶¶ 2, 3). Here, the remaining, unopened beer cans in Knight’s vehicle were located in the cab of his truck, within reach of the passengers, and were still cold. Also, Knight admitted that he had recently consumed at least “a couple” of beers. In contrast, Richbourg only had one beer at lunch approximately four hours prior to the accident. Id. at 353(112). Accordingly, we do not find Richbourg dispositive.

B. Consideration of Knight’s Refusal of the Breathalyzer Test

¶ 10. Knight contends that the circuit court’s consideration of his refusal to submit to a breathalyzer test was not probative of the DUI charge as Deputy Leach admitted that the charge was based on Knight’s reckless driving and the smell of alcohol, not his refusal to submit to the test. At the bench trial, the circuit court judge stated:

And I think right there, where the court wants to go, under the law and the facts, is that there was some evidence that the Defendant was under the influence of alcohol beverages.
What was that? Not only that he’d had a couple of beers, that there was a smell, but under the totality[-]of[-]the[-]circumstances standard, that he refused to take the two tests.

¶ 11. “The standard of review governing the admission or exclusion of evidence is abuse of discretion.” Williams v. State, 991 So.2d 593, 597(¶ 8) (Miss.2008) (citation omitted). Unless the evidence allowed is considered prejudicial to the defense, the trial judge will be afforded a “great deal of discretion” in his determination of the relevancy and admissibility of the evidence. Id.

¶ 12. We find nothing improper in the trial court’s consideration of Knight’s refusal to submit to the breathalyzer test. Mississippi Code Annotated section 63-11-41 (Rev.2004) states: “If a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action under this chapter.” This Court has found that evidence of a defendant’s refusal to submit to a breathalyzer test is relevant and admissible under Mississippi Rule of Evidence 402. Starkey v. State, 941 So.2d 899, 901(¶ 5) (Miss.Ct.App.2006) (citing Ricks v. State, 611 So.2d 212, 215-16 (Miss.1992)). Also, Deputy Leach testified that Knight’s refusal was based on Knight’s stated fear that he would not pass the test, which corroborated the testimony that Knight had consumed alcohol prior to the incident.

¶ 13. Therefore, we find that the circuit court judge did not abuse his discretion in considering the evidence of Knight’s refusal to submit to the breathalyzer test as it was relevant to the DUI charge.

C. Consideration of Knight’s Reckless Driving

¶ 14. Knight also contends that the circuit court punished him for reckless driving by convicting him of DUI. Knight ran a stop sign and “jumped” the intersection of the highway, with all four wheels of the vehicle leaving the pavement. Knight attempts to reason that his ability to keep his vehicle under control after “jumping” the intersection showed that he was not impaired. We reject that contention. In Christian v. State, 859 So.2d 1068, 1073(¶ 19) (Miss.Ct.App.2003), this Court found that evidence of running a stop sign and failing to turn off high beams was sufficient evidence of driving impairment.

¶ 15. Knight also argues that his driving, while admittedly reckless, was not erratic. We cannot find any Mississippi case which distinguishes “erratic driving” from “reckless driving.” The Missouri appellate court has stated that:

Erratic driving entails something more than mere negligence. It connotes the abnormal, peculiar, unaccountable and aberrant operation of the vehicle. Erratic driving is not the product of carelessness or of inattention but is conduct no heedless of circumstances as to be attributable to some impairment of faculties or of function.

Yingling v. Hartwig, 925 S.W.2d 952, 958 (Mo.Ct.App.1996) (citation omitted) (emphasis added). Under our “reckless[-jdriv-ing statute, ‘reckless’ means ‘the commission of conscious acts or omissions which a driver knows or should know create an unreasonable risk of injury or damage.’ ” Turner v. City of Ruleville, 735 So.2d 226, 228(¶ 9) (Miss.1999) (quoting Barnes v. State, 249 Miss. 482, 485, 162 So.2d 865, 866 (1964)). Knight’s action of “jumping” through the highway intersection without regard for traffic signs, clearly showed a serious lack of judgment and disregard for the safety of himself and others, which when coupled with the other evidence, is sufficient to show driving under the influence.

¶ 16. Knight cites no authority that the circuit court could not consider Knight’s reckless driving as evidence for his DUI conviction. Defense counsel even admitted at the bench trial that the circuit court judge, as the trier of fact, could consider the reckless driving as having probative value under the “totality of the circumstances.” “[F]actual findings made by a trial judge sitting without a jury will be upheld when they are supported by reasonable evidence found in the record and are not manifestly wrong or clearly erroneous.” Christian, 859 So.2d at 1072(¶ 17) (citing Bray v. City of Meridian, 723 So.2d 1200, 1202(¶16) (Miss.Ct.App.1998)). Accordingly, we find that the circuit court did not err in its consideration of Knight’s reckless driving.

CONCLUSION

If 17. Upon our review of the record, we find that there is substantial evidence to support Knight’s conviction of DUI First Offense. Further, we do not find that the circuit court abused its discretion in its denial of Knight’s motion for reconsideration and, in the alternative, for a new trial. Accordingly, we affirm.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF DUI FIRST OFFENSE AND SENTENCE OF FORTY-EIGHT HOURS IN THE CUSTODY OF THE NEWTON COUNTY SHERIFF’S DEPARTMENT, WITH THE SENTENCE TO BE SUSPENDED UPON COMPLETION OF DRUG AND SAFETY PROGRAM, AND TO PAY A $500 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Again, we note that on appeal, Knight did not contest his reckless-driving conviction.


text:
    Nina NUNEZ, Appellant v. Joseph P. SPINO, Jr., Appellee.
    No. 2008-CA-00842-COA.
    Court of Appeals of Mississippi.
    Aug. 4, 2009.

      Randall Scott Wells, attorney for appellant.
    J. Robert Ramsay, Hattiesburg, attorney for appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   KING, C.J.,

for the Court.

¶ 1. On April 13, 2004, Nina Nunez filed a lawsuit in the Circuit Court of Lawrence County against Joseph P. Spino, Jr., alleging that he was responsible for injuries she sustained in an all-terrain vehicle (ATV) accident. Spino ñled a motion for summary judgment, which the trial court granted. Aggrieved, Nunez appeals and argues that the trial court erred by granting summary judgment in favor of Spino. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 13, 2001, Nunez visited her daughter, her grandchild, and Jeffrey Spi-no (Jeffrey), who is her daughter’s fiancé and also Spino’s son. The couple lived in a trailer that was located across the highway from Spino’s home. Spino owned a chicken farm, which was located near the daughter and Jeffrey’s trailer. Jeffrey worked on the chicken farm. Spino had purchased an ATV for Jeffrey to use while he was working on the farm. However, Jeffrey commonly let his friends ride the ATV for fun. Nunez would also ride the ATV whenever she visited her family.

¶ 3. On that particular day, Nunez had been riding the ATV with her grandson. In Spino’s deposition, he said that he was unaware that Nunez was visiting that day. Eventually, Nunez’s family left the premises, going out of town for the Easter holiday. After they left, Nunez remained on the property and continued to ride the ATV. In Nunez’s deposition, she admitted that she had consumed two beers that day.

¶ 4. Nunez was driving the ATV on a gravel road. As she attempted to turn, the steering and brakes allegedly failed. This caused Nunez to crash into a barbed wire fence, and she was thrown from the ATV. Shortly after the accident, Spino was going to check on the chickens when he saw Nunez lying in the field. Spino took Nunez to the emergency room. As a result of the accident, Nunez sustained several injuries: a severed ear, an injury to her left calf, neck and lower back pains, and chipped teeth.

¶ 5. On April 13, 2004, Nunez filed a lawsuit against Spino, alleging that he was responsible for her injuries. Nunez claimed that Spino was aware that the ATV had steering and brake problems, and he failed to warn her. Spino filed a motion for summary judgment, arguing that Nunez was a licensee on his property; thus, he only owed her a duty to refrain from willfully or wantonly injuring her. Spino argued that there was no genuine issue of material fact because there was no evidence that he willfully or wantonly caused injury to Nunez. In response, Nunez argued that she was an invitee, and Spino owed her the duty to warn her of the defective ATV.

¶ 6. The trial court found that: (1) there was no genuine issue of material fact with regard to Nunez’s status as a licensee because, at the time of the incident, she was riding the ATV for her own pleasure; and (2) Spino did not take any action to willfully or wantonly injure Nunez. Accordingly, on April 18, 2008, the trial court granted Spino’s motion for summary judgment. Aggrieved, Nunez timely filed her notice of appeal.

ANALYSIS

¶ 7. Nunez’s sole argument is that the trial court erred by granting summary judgment in favor of Spino. On appeal, the trial court’s grant of a motion for summary judgment is reviewed de novo. Todd v. First Baptist Church of West Point, 993 So.2d 827, 829(¶ 9) (Miss.2008) (citing Harmon v. Regions Bank, 961 So.2d 693, 697(¶10) (Miss.2007)). The Court views the judgment in the light most favorable to the nonmoving party. Id. (citing M.R.C.P. 56(c)). “If any triable issues of material fact exist, the trial court’s decision to grant summary judgment will be reversed.” Id. (quoting Harmon, 961 So.2d at 697(¶ 10)).

¶ 8. Nunez argues that the trial court erred by granting summary judgment in favor of Spino. She argues that the principles of premises liability do not apply to this case, and Spino is liable for her injuries based on his failure to restrict use of the defective ATV. Alternatively, if the principles of premises liability do apply to this case, Nunez argues that there was a genuine issue of material fact as to her status as an invitee or a licensee.

¶ 9. Conversely, Spino argues that the trial court did not err by granting his motion for summary judgment because (1) the principles of premises liability apply to this case; (2) there was no genuine issue of material fact as to Nunez’s status as a licensee; and (3) there was no evidence that Spino did anything to willfully or wantonly injure Nunez.

I. Premises Liability

¶ 10. A plaintiff must present evidence to satisfy the elements of negligence: duty, breach of duty, proximate cause, and damages. See Thomas v. The Columbia Group, LLC, 969 So.2d 849, 852(¶ 11) (Miss.2007). The principles of premises liability help the court determine what duty was owed to the plaintiff by the defendant. Id. The duty owed by the defendant is determined by the plaintiffs status as an invitee, a licensee, or a trespasser. Id.

¶ 11. Thus, the principles of premises liability are essential for this Court to determine Nunez’s status, the duty Spino owed to Nunez, and whether Spino breached that duty. Nunez’s argument that the principles of premises liability do not apply to this case is without merit.

II. Nunez’s Status

¶ 12. The threshold question is whether Nunez is an invitee or a licensee. An invitee is a person who “enters the premises of another in answer to the express or implied invitation of the owner or occupant for them mutual advantage.” Thomas, 969 So.2d at 852(¶ 12) (citing Holliday v. Pizza Inc., Inc., 659 So.2d 860, 865 (Miss.1995)). A licensee is a person who “enters the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner.... ” Id. The plaintiffs status can be a question of fact for the jury to decide. Howze v. Garner, 928 So.2d 900, 902(9) (Miss.Ct.App.2005) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097, 1100 (Miss.1986)). However, that determination becomes a question of law for the trial court to decide when there are no factual disputes. Id.

¶ 13. Nunez contends that she was an invitee because she was Jeffrey’s guest, and she occasionally did work for Spino. The supreme court has held that “the visitor does not have to be upon the property for the sole purpose of the possessor’s business to be considered an ‘invitee,’ but ‘the visit may be for the convenience or arise out of the necessities of others who are themselves upon the land for such a purpose.’ ” Evans v. Hodge, 2 So.3d 683, 687(¶ 10) (Miss.Ct.App.2008) (citing Restatement (Second) of Torts § 332 cmt. (g) (1965)).

¶ 14. Jeffrey worked for his father, but there was no indication that Jeffrey was working on that day or that Nunez’s presence on Spino’s property was associated with Jeffrey’s work. In her deposition, Nunez stated that she was simply visiting her family on that day. In addition, Nunez remained on Spino’s property and rode the ATV even after her family had left the premises.

¶ 15. In regard to her alleged employment with Spino, Nunez was asked the following:

Q. Did you ever at any time work for Mr. Spino?
A. No, sir. I helped him clean his house, his mother’s home because she was an elderly sick lady and he would ask me to clean it. I would clean it once a week or stuff like that. And they would pay me a little. That’s all. That’s the only thing to help his mother out.
Q. Had you cleaned her house [on the day of the accident]?
A. No, sir.

¶ 16. Based on the foregoing, Nunez was clearly a social guest; she was on Spino’s property riding his ATV for her own pleasure and benefit. This makes her a licensee. There was no genuine issue of material fact as to Nunez’s status. Thus, we find that the trial court did not err by determining that Nunez was a licensee.

III. Duty/Breach of Duty

¶ 17. Because Nunez was a licensee, Spino owed her a duty to refrain from willfully or wantonly causing injury to her. Hotuze, 928 So.2d at 903(¶ 11). The trial court found that Spino did not take any action to willfully or wantonly cause injury to Nunez.

¶ 18. Nunez argues that the trial court erred in its analysis. Nunez argues that Spino should be held to a higher standard because he knew that she was present on his property, and he failed to warn her of the defects in the ATV.

¶ 19. Although Nunez frequently visited the family, Spino was not aware of Nunez’s presence on his property until after her accident. In her deposition, Nunez stated that she was aware that the ATV previously had brake problems. Spino confirmed her statement. However, both Nunez and Spino stated that the brakes were fixed' whenever a problem arose.

¶ 20. Nunez claims that Spino knew that 'the brakes were “out” on the day of her accident. There was no indication that Spino knew anything about a steering problem. In Nunez’s deposition, she said that after her accident, she learned that the ATV had brake problems the previous weekend and that the brakes had supposedly been fixed. Nunez was also asked the following:

Q. You said [Spino] came to see you at your daughter’s house the day after [the accident]?
A. Yes.
Q. And you said he made a comment about his son and your daughter had friends over the weekend before and they noticed a problem with the brakes and you said a few days after he told you not to ride it because the brakes were out.
A. Yes, sir.
Q. Since the accident was there any other times [that Spino] talked to you about problems or discussions with you about the brakes as it relates to your accident.
A. Now, it could have been my daughter’s boyfriend also. He may have been the one who told me the brakes that went out that weekend before.
Q. So you are not sure?
A. And he told his father. Well, of course his father had to take it in. Yeah. My daughter’s fiancé said that they were riding and one of his friends discovered something wrong with the brakes but they fixed it.
A. Uh-huh, but [Spino] did not know about that. And when Jeffrey told his father that is when [Spino] told me.

Nunez admitted that Spino was not aware that there had been another problem with the brakes on the ATV until Jeffrey informed him after Nunez’s accident.

¶ 21. There was no genuine issue of material fact regarding Nunez’s status as a licensee, and there was no evidence that Spino did anything to willfully or wantonly injury Nunez. Thus, the trial court did not err by granting Spino’s motion for summary judgment. This claim is without merit.

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

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