author: KING, C.J.,

text:
    Percy CLARK, Jr. a/k/a Percy Clark, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-02233-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.

      W. Daniel Hinchcliff, attorney for appellant.
    Office of the Attorney General, by Ladonna Holland, attorney for appellee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. On October 3, 2007, Percy Clark was convicted in Hinds County Circuit Court of Count I, burglary of a business, and Count II, possession of burglary tools, and sentenced to seven years on Count I and five years on Count II, all to be served in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Clark appeals arguing the following issues: (1) whether the trial court committed plain error by allowing the State to impermissi-bly comment on his post-Miranda, silence, and (2) whether the trial court erred in failing to grant his motion to dismiss for violation of his constitutional and statutory rights to a speedy trial.

¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. On April 7, 2006, Harry Rosenthal, a Jackson attorney, arrived at his property, which spans from 820 to 834 West Capitol Street in Jackson, Mississippi. According to Rosenthal, it was his normal routine when he arrived at work to check the exterior of the unoccupied buildings to make certain that the doors were locked. Rosenthal found that the doors were locked. Rosenthal testified that while running an errand, he discovered that the boards used to secure the door to the building at 820 West Capitol were pulled down and the door was open. Building 820 was used as a storage facility for old files, books, excess furniture, computers, and computer parts. Finding the door ajar, Rosenthal returned to his office, retrieved his pistol, and then returned to the open building. Rosenthal stated that he fired a shot into the building to inform the possible intruder that he was entering the building. After entering the building and surveying his surroundings, Rosenthal saw a man, who was later identified as Clark, standing behind a door. Rosenthal ordered Clark to come out and sit down on the floor, at which point Clark was found to be in possession of a couple of screwdrivers, sheet metal tools and cutters, and a pair of pliers. Rosenthal testified he noticed that wiring and what appeared to be pieces of copper pipe, which had been cut from the air conditioner, were on the floor. Rosenthal alerted 911 to the break in and detained Clark at gunpoint until the police arrived.

¶4. In September 2006, Clark was indicted as a habitual offender for possession of burglary tools and burglary of a business. On October 3, 2007, Clark was found guilty of both offenses and was sentenced to seven years on Count I, burglary of a business, and five years on Count II, possession of burglary tools, all to be served in the custody of the MDOC. On October 4, 2007, Clark filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. The trial court denied the post-trial motion on October 8, 2007.

ANALYSIS

I. Whether the trial court committed plain error by allowing the State to impermissibly comment on Clark’s post -Miranda silence.

¶ 5. During the State’s opening statement, the prosecutor made the following remark:

Now, Detective William Waples and Detective Terence Ware were the two detectives who interviewed the defendant, and it was from that interview that they were able to determine that the defendant’s name was Percy Clark, what his date of birth was and what his Social Security number was.

¶ 6. Clark offered no objection to this statement. However, he now argues that the State’s remark was an implicit and impermissible comment on his fundamental right to remain silent. Clark claims that the remark was intended by the State to imply that Clark’s failure to tell the police anything other than his name, age, and social security number was indicative of his guilt. Clark contends that the effect of the remark was to suggest that when given an opportunity to explain himself, he declined to speak, which therefore meant he was guilty.

¶ 7. Clark asserts that because the alleged improper remark infringed on his fundamental right to remain silent, this Court should review the matter as plain error. “The plain-error doctrine is implicated when an error occurs at trial which affects substantial rights and results in ‘a manifest miscarriage of justice.’ ” McDowell v. State, 807 So.2d 413, 424(¶ 34) (Miss.2001). This Court held in Baskin v. State, 991 So.2d 179, 183(1118) (Miss.Ct.App.2008) that the “failure to object to an allegedly improper statement made during closing arguments will bar appellate review of the issue unless it constitutes plain error.”

¶ 8. The remark was a mere recitation of the facts, simply stating that the named detectives were able to obtain Clark’s identity during an interview, and the remark was in no way a statement that Clark chose to remain silent after being given his Miranda warning. There is no evidence to suggest that the remark in any way prejudiced Clark’s receipt of a fair trial. We find that the prosecutor’s remark was not improper; thus, it does not constitute error. Accordingly, Clark’s issue is without merit.

II. Whether the trial court erred in failing to grant Clark’s motion to dismiss for a violation of his constitutional and statutory rights to a speedy trial.

¶ 9. Clark asserts that because 542 days elapsed between his arrest and trial and 329 days elapsed between his arraignment and trial, the trial court erred in refusing to grant his motion to dismiss for a violation of his constitutional and statutory rights to a speedy trial. Clark argues that the trial court erred in finding that an overcrowded docket excused the State’s violation of his constitutional and statutory rights to a speedy trial. The supreme court has previously held that:

Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court’s standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court’s finding of good cause, this Court will ordinarily reverse. The [SJtate bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.

DeLoach v. State, 722 So.2d 512, 516(¶ 12) (Miss.1998) (internal citations and quotations omitted).

A. Constitutional Right

¶ 10. The constitutional right to a speedy trial attaches at arrest. Manix v. State, 895 So.2d 167, 175(¶16) (Miss.2005). This right “is examined using a four-factor test developed by the United States Supreme Court. First, the length of delay is considered; second! ], the reasons for the delay; third, whether the defendant asserted their [sic] right to a speedy trial; and last, whether the defense suffered any prejudice from the delay.” Id. at 175-76(¶ 16) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)).

1. Length of Delag

¶ 11. “The Mississippi Supreme Court has held that a delay of eight months or longer is presumptively prejudicial.” Biggs v. State, 741 So.2d 318, 328(¶42) (Miss.Ct.App.1999). Clark was arrested on April 7, 2006, and tried on October 1, 2007. This delay of approximately eighteen months is presumptively prejudicial; thus, it requires inquiry into the other Barker factors. The following chronology of the events in this case provides:

NUMBER OF DAYS EVENTS_DATE(S)_BETWEEN EVENTS

Arrest_April 7, 2006_

Indictment_October 10, 2006_186_

Arraignment_November 6, 2006_27_

Initially set for trial, but January 24, 2007 (con- 79 continued_tinued to April 23, 2007)_

Pro se demand for speedy March 26,2007 61 trial filed_

Continuance granted May 18, 2007 (continued 53 _to July 23, 2007)_

Continuance granted August 6,2007 (contin- 80 _ued to October 1, 2007)_

Pro se motion to dismiss August 13,2007 7 filed_

Trial commenced_October 1, 2007_49

2. Reason for Delay

¶ 12. Once the delay is found to be presumptively prejudicial, “the burden shifts to the prosecutor to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons.” Biggs, 741 So.2d at 328(¶ 44). The State asserts that the reason for the delay was an overcrowded docket.

¶ 13. The trial court held a hearing on Clark’s motion to dismiss this cause because of a violation of his constitutional and statutory rights to a speedy trial. The record does not contain a copy of the orders granting the continuances; however, the trial court indicated at the hearing that the continuances were granted at the request of the State because older cases on the docket were being tried. Clark’s case was initially set for trial on January 24, 2007, but it was continued until April 23, 2007 (89 days of delay). The record indicates that three additional continuances were granted; the case was continued from April 23, 2007, to May 18, 2007 (25 days of delay), from May 18, 2007, to July 23, 2007 (66 days of delay), and from August 6, 2007, to October 1, 2007 (56 days of delay). Therefore, 236 days of delay is attributed to a congested docket. The supreme court held that “the preempting of a trial by another case constitutes ‘good •cause.’” McGhee v. State, 657 So.2d 799, 803 (Miss.1995) (internal quotations omitted). The State has the responsibility of bringing the defendant to trial. See Taylor v. State, 672 So.2d 1246, 1261 (Miss.1996). Delay attributable to an overcrowded docket will be weighed against the State, but not heavily. See McGhee, 657 So.2d at 802. Because 236 days of the delay were the result of a congested docket, we find that this factor weighs against the State, but not heavily.

3. Assertion of Right

¶ 14. While Clark claims that he wrote to various courts requesting a speedy trial, the record before this Court indicates that Clark’s only written demand for a speedy trial was filed on March 26, 2007, within a motion styled as Motions: For Discovery; Prosecution/Defender/Demand for Trial/To Dismiss; with Prejudice and Against 6th and 14th Amendments/Access to Legal Materials. The State asserts that its first time receiving notice of Clark’s demand for a speedy trial was three days prior to the October 1, 2007, trial. The State argues that it was not served with notice of Clark’s March 26, 2007, demand for a speedy trial; therefore, the delay should not be counted against it.

¶ 15, It is the responsibility of the State to bring the accused to trial in a speedy manner. See Vickery v. State, 535 So.2d 1371, 1377 (Miss.1988). However, -where the defendant asserts his right to a speedy trial, that weighs in his favor. Clark filed a pro se request for speedy trial on March 26, 2007; therefore, this factor weighs in favor of Clark.

4. Prejudice from Delay

¶ 16. The United States Supreme Court has held that prejudice must be determined by a consideration of those interests of a defendant, which the right to a speedy trial is intended to protect. Those interests are as follows: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. Clark remained in jail following his arrest on April 7, 2006, until his trial on October 1, 2007. Clark contends that he was prejudiced by the financial, societal, and emotional effects of prolonged incarceration.

¶ 17. Clark asserts that at the time of the burglary he derived income from scavenging salvageable property. The inference here being that while jailed, Clark was unable to pursue a source of income. Clark also argues that he also suffered anxiety from the witnesses’ loss of memory of the events caused by the lapse of time. “[Pjrejoice [is suffered] if defense witnesses are unable to recall accurately events of the distant past.” Birkley v. State, 750 So.2d 1245, 1252(¶24) (Miss.1999). Clark does not reference any specific witness whose memory was lost. However, the record indicates that the only witnesses that testified were called by the State. These witnesses were the victim, Rosenthal, and Officers Ruben Curry and Terrene Ware, who are employed with the Jackson Police Department. There is no indication from these witnesses’ testimonies that they suffered any loss of memory of the events that occurred on April 7, 2006. Rosenthal testified that he found Clark in one of his buildings in possession of burglary tools and with pieces of copper pipe nearby and held him at gunpoint until the authorities arrived. Officer Curry testified that he was the first officer to arrive on the scene where he found Rosenthal holding Clark, who had copper wiring and electrical items lying around him and burglary tools next to him, at gunpoint. Officer Curry also testified that he transported Clark to the Standard Life Building to be interviewed. Detective Ware testified that his only involvement with Clark was to get the Miranda rights form signed and to interview Clark. Clark has failed to show that there was memory loss in the testimonies of the State witnesses.

¶ 18. This Court understands that there is some negative impact to Clark being incarcerated for 542 days and not at liberty to move about freely and provide for himself. However, “incarceration alone is not sufficient prejudice to warrant reversal.” Birkley, 750 So.2d at 1252(¶ 27). It is the possibility of impairment of a defendant’s available defense that this Court considers most carefully. See Sharp v. State, 786 So.2d 372, 381(¶ 19) (Miss.2001). The record before this Court reflects no specific impairment to any defense, which might have been available to Clark.

¶ 19. Other than his assertion of prejudice, Clark offers no substantiation for his claim of prejudice. Therefore, this factor is weighed against Clark. Having reviewed the facts, conducted an analysis of the Barker factors, and considered the case in its totality, we find no actionable violation of Clark’s constitutional right to a speedy trial. This issue is without merit.

B. Statutory Right

¶ 20. Clark asserts that his statutory right to a speedy trial under Mississippi Code Annotated section 99-17-1 (Rev.2007) was violated. The statute states that:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

“When the accused is not tried within 270 days of his arraignment, the State has the burden of establishing good cause for the delay since the accused is under no duty to bring himself to trial.” Jenkins v. State, 947 So.2d 270, 275(¶ 9) (Miss.2006). Clark alleges that the 329-day delay from arraignment to trial violated the 270-day statutory requirement. Clark maintains that the continuances, which resulted in the delay, are attributable to the State.

¶ 21. Our supreme court has created a two-step test for determining a possible violation of the statutory right to a speedy trial. The test provides the following:

The first step is to determine the total number of days between arraignment and trial. For this purpose, the date of arraignment is not counted but the date of trial and weekends are counted unless the 270th day falls on a Sunday. The second step is to consider each delay separately, because only those delays attributable to the State count toward the 270 days. For the second step[,] this Court must determine which party is responsible for the delay and their reason. The clock starts at the time of arraignment and not at the time of arrest. The time period prior to arraignment is not relevant in 270-day rule cases.

Dies v. State, 926 So.2d 910, 914(¶ 8), 914 n. 1 (Miss.2006).

¶ 22. There were 329 days between arraignment and trial. Included with those 329 days were four continuances, which totaled 236 days. The State asserts that this 236-day delay was the result of a congested docket. “Docket congestion has been held to constitute good cause for delay.” Walton v. State, 678 So.2d 645, 648 (Miss.1996). “[H]owever, a crowded docket will not automatically suffice to establish good cause.” Buggs v. State, 738 So.2d 1253, 1257(¶ 12) (Miss.Ct.App.1999). “Upon the proper showing by the State in response to a defendant’s timely motion for dismissal because of an alleged 270[-]day violation, docket congestion can be a proper basis for good cause when supported by the facts of the particular case.” Id.

¶ 23. The State provided sufficient proof that the 236-day delay in bringing Clark to trial was because of an overcrowded docket. Therefore, 236 days are excused for good cause, leaving ninety-three days, which falls below the 270-day statutory requirement. Therefore, we find Clark’s argument that his statutory right to a speedy trial was violated is without merit.

CONCLUSION

¶24. The trial court did not abuse its discretion in holding that the State’s remark during opening statement was not improper. In addition, Clark’s motion to dismiss for lack of speedy trial was properly denied by the trial court. Therefore, we affirm the judgment of the trial court.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF COUNT I, BURGLARY OF A BUSINESS, AND SENTENCE OF SEVEN YEARS, AND COUNT II, POSSESSION OF BURGLARY TOOLS, AND SENTENCE OF FIVE YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Willie Lewis HODGES, Jr. a/k/a Lil Willie, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-01346-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.

      Leslie S. Lee, Benjamin Allen Súber, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Willie Lewis Hodges, Jr., was convicted in the Circuit Court of Webster County of statutory rape of a child under fourteen years of age and sentenced to life in the custody of the Mississippi Department of Corrections. Hodges appeals his conviction and sentence, arguing that the State improperly introduced evidence of prior bad acts and that the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm Hodges’s conviction and sentence.

FACTS

¶ 2. In August 2007, A.B., an eleven-year-old female child, was examined by Dr. Tim Whittle, a specialist in obstetrics and gynecology. A.B. complained of vaginal discharge and pain in her lower abdomen. A CAT scan and subsequent surgery revealed an abscess in her left fallopian tube. The mass and the fallopian tube were removed, and A.B. was treated with antibiotics; however, in January 2008, she suffered another infection, this time in her right fallopian tube. Treatment necessitated a complete hysterectomy. A second abscess was tested, and it was ultimately determined that both infections had resulted from extensive, preexisting damage to A.B.’s reproductive system that had been caused by an untreated infection of chlamydia, a sexually transmitted disease.

¶ 3. Donna Patterson, a surgical nurse at North Mississippi Medical Center at West Point, testified that she had participated in A.B.’s treatment with Dr. Whittle. Immediately prior to A.B.’s second surgery, Patterson was instructed to take A.B. into the hallway because of severe weather. Patterson spoke with A.B., and she discovered that A.B. and her son were classmates. The two spoke for some time, and A.B. ultimately disclosed to Patterson that she had been raped, although A.B. did not identify the perpetrator at that time. Approximately one week later, Patterson joined A.B., A.B.’s stepmother, and A.B.’s grandmother at the grandmother’s home. There, A.B. identified “Little Willie” Hodges, her stepfather, as the person who raped her. Patterson testified:

She said to me that, “Ms. Donna, can I tell you something?” And I said, “You can tell me anything.” And she said, “I want to tell you what happened to me” because I had told her in the hospital previously on my visit to her grandmother, the best thing to do when something like this happens is to talk about it; find someone you trust and confide and talk to them. And she said, “I want to tell you something. I think that you are my friend. Can I tell you what happened to me?” And I told her she could, and she proceeded to tell me what exactly happened, what happened to her.
She told me that one night that her mom had taken some medication, Se-roquel and Valium, and drank some type of liquor, and that her mom had passed out; and that this gentleman by the name of [ — ] I don’t know if — Little Willie came into her room. And she was in the bed asleep, and that he woke her up[,] and that he put his hand over her mouth and told her that if she moved, that he was going to hurt her; and that he moved her pajamas bottom, her panties and pajamas bottom to the side and penetrated her and raped her and told her that if she told anyone, that he would harm her and her family.

A.B.’s stepmother and grandmother testified to the same events.

¶ 4. At trial, A.B. elaborated that the rape had occurred while she was living in Webster County with her mother and Hodges, between January and April 2006, when A.B. was ten years old. A.B. testified that she had not revealed the rape sooner because Hodges had threatened to kill her and her family if she told anyone.

¶ 5. Hodges testified in his own defense. He denied raping A.B. and averred that while she was living with him, he worked fifty-hour weeks and had never been alone with the child. Hodges denied that A.B.’s mother drank alcohol when the children were present, and he further testified that A.B. had shared a bedroom with his mother and that the door to that room could not be locked. Hodges testified that he believed A.B. had accused him because she did not wish to identify the actual perpetrator or because she wished to remain in the custody of her father, who she had lived with since April 2006. He stated that his relationship with A.B. had been good until she returned from a week-long stay with her father, after which she became difficult to control.

¶ 6. On cross-examination, Hodges denied that he had ever been infected with a sexually transmitted disease, but he admitted that he had taken ciprofloxacin (commonly referred to as “Cipro”), an antibiotic that can be used to treat chlamydia, on two occasions in 2006. Hodges testified that he had taken Cipro in March 2006, because his wife, A.B.’s mother, had been diagnosed with trichinosis and again in October 2006 to treat irritable bowel syndrome. A.B.’s mother and Deborah Herrod, Hodges’s mother, also testified for the defense and supported Hodges’s testimony.

¶ 7. Hodges was ultimately convicted of the statutory rape of A.B., a child under the age of fourteen years, and the trial court sentenced him to life imprisonment.

DISCUSSION

1. Prior Bad Acts

¶ 8. Hodges argues that the trial court erred in admitting testimony concerning physical abuse and neglect that A.B. and her siblings allegedly suffered while living at his home in 2006. The State also referenced photographs documenting the abuse in its examination of several witnesses. Hodges asserts that this violated Mississippi Rule of Evidence 404(b), which prohibits the introduction of evidence of prior bad acts “to prove the character of a person in order to show that he acted in conformity therewith.”

¶ 9. Testimony at trial indicated that Hodges and his wife neglected the children’s hygiene, fed the children poorly, and had beaten them with belts and switches. As a result, the children had ultimately been placed in their father’s custody in April 2006.

¶ 10. On our review of the record, we find that Hodges failed to make any contemporaneous objections to this testimony at trial. He is, therefore, procedurally barred from raising this issue on appeal. See Spicer v. State, 921 So.2d 292, 305(¶ 22) (Miss.2006).

¶ 11. Notwithstanding the procedural bar, we find no error here — it is evident that Hodges “opened the door” to this evidence, because one of his theories of defense was that A.B. had accused Hodges of rape to remain in her father’s custody. The State rebutted this argument with testimony which indicated that A.B. had been placed in her father’s custody on independent grounds and that she was unlikely to be returned to the Hodges household. This issue is without merit.

2. Weight of the Evidence

¶ 12. Hodges argues that the verdict against him was against the overwhelming weight of the evidence because the State’s case was essentially founded on the uncorroborated testimony of A.B. and because the State failed to demonstrate that Hodges was ever infected with chlamydia.

¶ 13. The supreme court has elaborated upon appellate review of the weight of the evidence supporting a jury’s verdict, stating:

When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.

Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005) (internal citations and quotations omitted).

¶ 14. In reviewing the evidence we have discussed above in the light most favorable to the verdict, we do not find Hodges’s conviction to be against the overwhelming weight of the evidence. A.B. stated consistently and unequivocally that Hodges had raped her, and the fact of her rape — if perhaps not the identity of the perpetrator — was corroborated by compelling medical evidence. And while Hodges correctly argues that the State failed to prove he was infected with chlamydia, it did show that he had taken an antibiotic, Cipro, that is used to treat the disease. In fact, the State established through the testimony of Dr. Whittle that Hodges may have been infected with chlamydia at the time of the rape and never known it himself, if he did take Cipro in March 2006 for other reasons as he testified. Certainly, we do not find the verdict here “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. This issue is without merit.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF WEBSTER COUNTY OF CONVICTION OF STATUTORY RAPE OF A CHILD UNDER FOURTEEN YEARS OF AGE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

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

      . To protect the confidentiality of minor victims of sexual abuse, we substitute fictitious initials for their names.

      . The first abscess tested negative for chlamydia; however, Dr. Whittle testified that this was not unusual because the abscesses were the result of subsequent infections that had taken advantage of scarring and other damage caused by the chlamydia infection, not the chlamydia itself.

      . The trial court did not allow the photographs to be admitted into evidence.

      . Hodges and A.B.'s mother suggested that the custody dispute was ongoing and that litigation would resume when they were able to afford it; however, witnesses for the State testified that the custody dispute had been adjudicated in A.B.'s father’s favor.


author: GRIFFIS, J.,

text:
    Shelia Barnett GROVE, Appellant v. Charley Guy AGNEW, Appellee.
    No. 2008-CA-01190-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.

      Carter Dobbs, Jr., attorney for appellant.
    Charley Guy Agnew, Appellee, pro se.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Shelia Barnett Grove (“Shelia”) appeals the chancellor’s calculation of an increase in child support against Charley Guy Agnew (“Charley”). Shelia claims that the chancellor did not follow Mississippi’s statutory guidelines for child support. Finding error, we reverse and remand.

FACTS

¶2. Shelia and Charley have a minor child together. Shelia moved to modify the child support award based upon a material change in circumstances. The chancellor found that there had been a material change in circumstances and increased the amount of the child support award. In addition to his child with Shelia, Charley has a child that resides with him. The chancellor considered this child when he calculated the child support award for Shelia. Shelia filed a motion to alter or amend the judgment or alternatively, for a new trial, or for a correction under Rule 60(b) of the Mississippi Rules of Civil Procedure alleging that the chancellor did not follow the requirements of Mississippi Code Annotated section 43-19-101 (Rev. 2004) when he considered Charley’s other child in the determination of the child support award. The chancellor denied Shelia’s motion, and she now appeals.

STANDARD OF REVIEW

¶ 3. Findings of the chancellor, as to domestic relation matters, will not be disturbed or set aside on appeal unless the decision of the chancellor was manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied. Pittman v. Pittman, 652 So.2d 1105, 1108 (Miss.1995). For questions of law, our standard of review is de novo. Harrison County v. Gulfport, 557 So.2d 780, 784 (Miss.1990).

ANALYSIS

¶ 4. Shelia argues that the chancellor did not follow the requirements of section 43-19-101. Charley failed to file a brief.

¶ 5. Section 43-19-101, which provides the child support award guidelines, states in part:

(1) The following child support award guidelines shall be a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state:
Number Of Children Due Support Percentage Of Adjusted Gross Income That Should Be Awarded For Support
1 14%
2 20%
3 22%
4 24%
5 or more 26%
(2) The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.
(3) The amount of “adjusted gross income” as that term is used in subsection (1) of this section shall be calculated as follows:
(a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent’s portion of any joint income of both parents; workers’ compensation, disability, unemployment, annuity and retirement benefits, including an individual retirement account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent’s current spouse;
(d) If the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children;
(e) Compute the total annual amount of adjusted gross income based on paragraphs (a) through (d), then divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.
Upon conclusion of the calculation of paragraphs (a) through (e), multiply the monthly amount of adjusted gross income by the appropriate percentage designated in subsection (1) to arrive at the amount of the monthly child support award.
(4)In cases in which the adjusted gross income as defined in this section is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.

Miss.Code Ann. § 43-19-101(l)-(4).

¶ 6. Here, the chancellor divided Charley’s adjusted gross income, which was $54,657.46, by twenty-six pay periods per year to get Charley’s biweekly adjusted gross income and multiplied by twenty percent. The chancellor used twenty percent to account for two children under section 43-19-101, Charley and Shelia’s child and Charley’s other child, and divided the amount by two. After this calculation, the chancellor awarded Shelia $210.22 biweekly for child support and an additional $24.92 biweekly due to necessary medical expenses for the child. This award represented approximately ten percent of Charley’s adjusted gross income, while the statutory percentage of adjusted gross income for one child is fourteen percent. Miss.Code Ann. § 43-19-101(1).

¶ 7. The child support award guidelines are “a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state.” Id. These percentages “apply unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in [Mississippi Code Annotated section 43-19-103 (Rev.2004)].” Miss.Code Ann. § 43-19-101(2).

¶ 8. During the hearing on child support, Shelia’s attorney reminded the chancellor that he is required to make “a written finding in the record as to whether or not the application of the guidelines established in [section 43-19-101 are] reasonable” in situations in which the adjusted gross income is more than $50,000 or less than $5,000. Miss.Code Ann. § 43-19-101(4). Because Charley’s adjusted gross income was greater than $50,000, the chancellor was required to state on the record whether the guidelines were reasonable. The chancellor stated that the guidelines were reasonable, but that section 43-19-101(3)(d) allowed the chancery court to “subtract an amount that it deems appropriate to account for the needs of” the absent parent’s child if that child resides with the absent parent. The chancellor said that he deemed it appropriate that child support should be one-half of the twenty percent as opposed to fourteen percent, the percentage for one child under the guidelines. The chancellor made no additional findings about the guidelines.

¶ 9. Subsection (3)(d) of section 43-19-101 provides the method by which the chancellor may account for another child residing with the absent parent. “[T]he court may subtract an amount that it deems appropriate to account for the needs of said child or children” from the amount of adjusted gross income. Id. Here, the chancellor did not subtract an amount from the adjusted gross income; rather, he improperly used the guideline percentage for two children and divided it between the two children.

¶ 10. The chancellor did not follow the method provided in section 43 — 19—101 (3)(d) and did not provide any “written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in [this] particular case” that would overcome the presumption that guidelines are appropriate under section 43-19-103. Miss.Code Ann. § 43-19-101(2). Therefore, we must reverse the chancellor’s judgment and remand so that the child support award may be calculated in accordance with section 43-19-101, or, alternatively, the chancellor must justify his failure to do so.

¶ 11. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: GRIFFIS, J., CARLTON, J.,

text:
    A.B., a Minor, through her Mother, C.D., Appellant v. STONE COUNTY SCHOOL DISTRICT, Appellee.
    No. 2008-CA-00478-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.

      Paul Bryant Caston, Hattiesburg, attorney for appellant.
    Walter William Dukes, Gulfport, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. A.B., a minor, through her mother, C.D., filed suit against the Stone County School District for her injuries due to an alleged sexual assault. The circuit court found that the school district was immune from the majority of the allegations in the complaint. Where immunity did not apply, the circuit court held that A.B.’s injuries were not a foreseeable result of the school district’s failure to exercise ordinary care. Thus, summary judgment was granted in favor of the school district. A.B. now appeals claiming that the circuit court improperly held that: (1) the school district’s duties to provide a safe environment to A.B. did not require the exercise of ordinary care, and (2) the injuries to A.B. were not foreseeable. We find no error and affirm.

FACTS

¶ 2. A.B., the minor plaintiff in this case, was a fifteen-year-old student at Stone County High School during all times relevant to this matter. She had the habit of skipping some or all of her classes on an almost daily basis. She would ride the bus to school, then walk to a nearby apartment complex to spend the day with her older boyfriend or other friends. She would return to the school in the afternoon to ride the bus home. A.B.’s parents were unaware that she was missing school.

¶ 3. Raymond Collins was A.B.’s bus driver. On April 7, 2005, A.B. rode the bus to school as usual. Collins heard A.B. say that she did not want to go to school because she had not completed a project due that day. He suggested that A.B. stay on the bus and go with him to his house instead of going to school. A.B. agreed and rode the bus to the bus barn, where Collins parked in the back so no one would see A.B. move from the bus to his personal truck.

If 4. On the way to his house, Collins made sexual advances toward A.B., but she pushed him away. Collins then left A.B. at his home with his seventeen-year-old nephew while Collins went to work at another job. A.B. alleges that Collins’s nephew raped her three separate times during the course of that morning and afternoon. Collins returned home that afternoon, and he instructed his nephew to drive A.B. back to the school where she later boarded Collins’s bus and rode home.

¶ 5. A.B. filed suit under the Mississippi Tort Claims Act (“MTCA”) claiming that the school district was negligent in its failure to use ordinary care by (1) allowing students to leave campus without authorization, (2) failing to adopt policies to notify parents of excessive unexcused absences, (3) failing to follow policies in place regarding the notification of parents when a child was inexplicably absent from school, (4) failing to notify A.B.’s parents of her excessive unexcused absences, (5) failing to enforce Mississippi Code Annotated section 37-9-69 (Rev.2007) which states that pupils are held “to strict account for disorderly conduct at school, on the way to and from school, and on the playgrounds, and during recess,” (6) failing to provide adequate supervision of students arriving and departing by school bus, and (7) hiring Collins who took A.B. to his home and also allowed her to board his bus early before school was dismissed.

¶ 6. The school district filed a motion for summary judgment that was granted by the circuit court. The circuit court held that, under the MTCA, Mississippi Code Annotated sections 11-46-1 to -23 (Rev. 2002), the school district was immune from all allegations contained in the complaint except for the school district’s alleged violation of the compulsory attendance law under Mississippi Code Annotated sections 37-9-69 and 37-13-91 (Rev.2007). However, even though there was no immunity for the violation of the compulsory attendance law, the circuit court found that the sexual assault of A.B. was not a foreseeable consequence of the failure of the school to report A.B.’s absences.

STANDARD OF REVIEW

¶ 7. The standard of review of a motion for summary judgment is well settled:

Our appellate standard for reviewing the grant or denial of summary judgment is the same standard as that of the trial court under Rule 56(c) of the Mississippi Rules of Civil Procedure. This Court employs a de novo standard of review of a lower court’s grant or denial of a summary judgment and examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions,' affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.

McMillan v. Rodriguez, 823 So.2d 1173, 1176-77(¶ 9) (Miss.2002) (citations omitted).

ANALYSIS

1. Whether the circuit court improperly held that the duty to provide a cafe school environment is a discretionary act with no requirement that the school district exercise ordinary care.

¶ 8. Because the school district is considered a political subdivision, A.B.’s claims were brought under the MTCA. See Miss. Code Ann. § ll-46-l(i) (Supp.2008). The MTCA provides the following exemptions from liability:

(1) A governmental entity and its employees acting within the course and scope of them employment or duties shall not be liable for any claim:
(b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation-, whether or not the statute, ordinance or regulation be valid;
(d) Based upon the exercise or performance or the failure to exercise or perform a discretion-ary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;
(e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;....

Miss.Code Ann. § ll-46-9(l)(b),(d), and (e) (Supp.2008) (emphasis and footnote added).

¶ 9. The circuit court determined that the allegations in the complaint, except the issue of the compulsory attendance laws, involved discretionary functions for which the school district was immune from suit under section 11 — 46—9(l)(d). The circuit court held that, had such duties been ministerial under section 11^46-9(l)(b), issues of fact would exist as to whether the school used ordinary care; therefore, summary judgment would be improper. However, because the circuit court found that the allegations addressed discretionary functions, summary judgment was granted based on the school district’s immunity under section 11 — 46—9(l)(d).

¶ 10. A.B. does not dispute the circuit court’s finding that each of her claims, except the claim under the compulsory attendance law, were discretionary acts on the part of the school district. Instead, she argues that summary judgment on the basis of immunity was improper because the school district, even though it was performing acts which are discretionary in nature, was required to use ordinary care in providing a safe school environment.

¶ 11. A.B. asserts that the circuit court’s analysis misapplied the law in the area of school immunity. Specifically, she claims that the traditional ministerial-act-versus-discretionary-act analysis only applies to cases that do not involve schools. The school district responds that A.B.’s argument is a misinterpretation of precedent established by the supreme court in Collins v. Tallahatchie County, 876 So.2d 284 (Miss.2004).

¶ 12. In Collins, the supreme court addressed “an apparent misunderstanding in our case law.” Id. at 289(¶ 14). The following clarification was given as to when the ordinary care standard applies:

Here, both parties cite (directly or parenthetically) Brewer v. Burdette, 768 So.2d 920, 923 (Miss.2000), for the erroneous proposition that one must use ordinary care in performing a discretionary function to retain immunity. Unfortunately, Brewer cited L.W. v. McComb Separate School District, 754 So.2d 1136 (Miss.1999), for the proposition that an ordinary care standard applies to discretionary[-]function immunity. This Court recognized in L.W. that the school’s conduct was of a discretionary nature. L.W., 754 So.2d at 1139-43 (emphasis added). However, this Court never found that the school officials were performing a discretionary function. Id. (emphasis added). Indeed, this Court actually found that the school officials in L.W. were performing a function required by statute and, therefore, properly analyzed the school’s actions under subsection (b) (which addresses acts or omissions while performing statutory duties), rather than subsection (d) (which addresses discretionary duties). Id. Subsection (b) clearly carries an ordinary[-]care standard; subsection (d) does not. See id.
In Brewer, this Court misapplied the wording in L.W. by incorrectly applying the ordinary[-]care standard to discretionary duties. In Harris, this Court held: “When an official is required to use his own judgment or discretion in performing a duty, that duty is discretionary.” [Harris v. McCray, 867 So.2d 188, 191(¶ 12) (Miss.2003).] Miss.Code Ann. § ll-46-9(l)(d) exempts governmental entities from liability of a discretionary function or duty “whether or not the discretion be abusedf.”] Therefore, [the] ordinary[-]care standard is not applicable to Miss.Code Ann. § 11-46-9(l)(d).

Id. at (¶¶ 16-17).

¶ 13. A.B. claims that the rule set forth in Collins applies only to “cases that do not involve the duty of school personnel to minimize the risk of personal injuries and to provide a safe school environment for students.” While there seems to be some confusion in the area of school immunity, there is no language in Collins that would indicate that the holding was limited to immunity cases not involving schools. Collins merely clarifies that section 11-46-9(l)(b) requires the use of ordinary care when performing a statutory duty, and section 11 — 46—9(l)(d) has no requirement of ordinary care when the act is a discretionary function.

¶ 14. In support of her argument, A.B. cites to this Court’s post -Collins holdings in Doe ex rel. Brown v. Pontotoc County School District, 957 So.2d 410, 422(¶31) (Miss.Ct.App.2007) and Beacham v. City of Starkville School System, 984 So.2d 1073, 1076(¶ 13) (Miss.Ct.App.2008), and claims that school districts must use ordinary care. While it is true that both Brown and Beacham applied the ordinary[-]eare standard, neither case involved discretionary functions. Neither case referenced the supreme court’s clarification in Collins; instead, both cases quote L.W., which involved a function required by statute.

¶ 15. In L.W., following the assault of her son, J.A., by a fellow student, L.W. filed suit against the McComb Separate Municipal School District alleging that the school district “was negligent in failing to maintain a safe environment; in failing to properly monitor its grounds; in failing to properly supervise its students; in failing to have a route of safe departure for detention students; and for other acts of negligence.” L.W., 754 So.2d at 1137(114). The circuit court found that the actions or inactions of the school district were discretionary and consequently protected by the immunity provided for in the MTCA. Id. at (¶ 6).

¶ 16. The supreme court held that the allegations did involve discretionary acts. Id. at 1141(¶ 23). However, that finding did not fully resolve the matter of immunity. Id. at (¶ 24). The supreme court found that “public schools have the responsibility to use ordinary care and take reasonable steps to minimize risks to students thereby providing a safe school environment.” Id. The supreme court applied this ordinary-care standard under section 11-46 — 9(l)(b) that requires ordinary care in the performance of a statutory duty. Id. at 1141-42(¶ 25). The statutory duty applied to public schools was Mississippi Code Annotated section 37-9-69, which states:

It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.

Construing the MTCA with this statutory duty, the supreme court held: “The duty to provide a safe environment is one of ordinary care.” L.W., 754 So.2d at 1142 n. 4. Further, “[t]he teachers and administrators here are then protected by sovereign immunity if and only if they used ordinary care in controlling and disciplining their students.” Id. at 1142(¶ 26).

¶ 17. However, we find this case to be distinguishable from the circumstances in L.W. The student in L.W. was threatened during class. Id. at 1137(¶ 2). He was later threatened again during after-school detention before he was eventually assaulted by a fellow student. Id. at (¶ 3). In L.W., there was a clear issue as to whether the school was a safe environment for the students.

¶ 18. While A.B. makes several claims that the school district failed to provide a safe school environment, we must recognize that A.B. was not harmed or injured at school. Nor was she harmed or injured during the numerous times that she skipped school and walked off campus. Instead, she was injured when her bus driver, Collins, took her to his home. While A.B. has a claim that the school district negligently hired and supervised Collins, the supreme court has held that: “The duty to hire and supervise employees is necessarily and logically dependent upon judgment and discretion.” T.M. v. Noblitt, 650 So.2d 1340, 1344 (Miss.1995). As such, this discretionary function does not require that the school district exercise ordinary care.

¶ 19. The circuit court concluded that:

Decisions with regard to the type and amount of supervision afforded to those boarding or disembarking the school bus, direct notification of parents of each absence of a student, means and measures for preventing a student from leaving campus, and such clearly require some element of judgment or choice on the part of the school personnel. No statute or regulation which ivould impose specific duties to be performed in a specific manner or time with, regard, to these allegations has been brought to this Court’s attention and, none has been found by the Court.

(Emphasis added). This is not a case where the school district’s failure to discipline a student at school resulted in an injury as was the issue in L.W. in which the supreme court applied section 37-9-69 regarding disorderly conduct of a student. Instead, A.B. willingly remained on the bus and was subsequently assaulted off-campus by a non-school employee. Because we find no violation of a statutory duty on the part of the school district, the ordinary-care standard in section 11—46— 9(l)(b) does not apply. Therefore, the school district is afforded discretionary immunity on all of A.B.’s claims except the school district’s clear violation of the compulsory attendance laws. Accordingly, this issue has no merit.

2. Whether the circuit court improperly held that A.B.’s injuries were not a foreseeable result of the school district’s failure to exercise ordinary care.

¶ 20. The circuit court held that, even though the school district was not immune from the compulsory-attendance-law claim, AB.’s injuries were not a foreseeable result of the school district’s failure to use ordinary care in reporting AB.’s absences. A.B. argues that it was foreseeable that allowing A.B. to roam unsupervised could result in harm to her.

¶ 21. A.B. has the burden of proving the elements of negligence, among which is the element of causation:

Proximate cause is a concept which is more accurately defined by reference to the distinct concepts of which it is comprised, which are: (1) cause in fact; and (2) foreseeability. Cause in fact means that the act or omission was a substantial factor in bringing about the injury, and without it the harm would not have occurred. Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligent act created for others.

Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 404(¶32) (Miss.Ct.App.2007) (internal citations and quotations omitted).

¶ 22. The circuit court held that the actions of the bus driver, who from all accounts was a model citizen prior to this incident, were not foreseeable consequences of the actions or inactions of the school district. Further, unlike in L.W. where the student had been threatened at school before the assault occurred, A.B.’s assault did not occur at the school and was not committed by another student over whom the school district had control.

¶ 23. As the supreme court has held: “a defendant is obligated solely to safeguard against reasonable probabilities and is not charged with foreseeing all occurrences, even though such occurrences are within the range of possibility.” City of Jackson v. Estate of Stewart, 908 So.2d 703, 712(¶ 46) (Miss.2005) (quotation omitted). There is no evidence to suggest that the bus driver had ever acted in this manner before. In fact, the evidence showed him to be a model citizen. As the circuit court noted: “There is nothing further to suggest, even had the School District reported the absences as required and had the School Attendance Officer investigated those absences, that A.B. would not have still remained on the bus that morning.” Her prior absences involved her leaving campus on foot. She had no pattern of remaining on the school bus.

¶ 24. We agree with the circuit court that: “The claim that something bad may happen to an unsupervised teen who is absent from school without her parents’ knowledge is insufficient.” A.B.’s assault by her bus driver’s nephew, which occurred at the bus driver’s home, was not a reasonably foreseeable result of the school district’s failure to exercise ordinary care in reporting A.B.’s absences. Accordingly, this issue is without merit, and the circuit court’s order granting summary judgment in favor of the school district is affirmed.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

Dissenting.

¶ 26. Because I would reverse the summary judgment and remand this case for further proceedings, I respectfully dissent. In order to make my position clear, I will address whether this case presents a breach of ministerial or discretionary duty, and whether the Mississippi Tort Claims Act (MTCA) bars liability in this case. I will also address the issues of proximate cause and foreseeability.

I. Whether the MTCA bars AJB.’s claims against the school district.

¶ 27. Under Mississippi Code Annotated section ll-46-9(l)(d) (Supp.2008), a governmental entity and its employees acting within the scope and course of their employment enjoy immunity from suit for any claim “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” A duty is discretionary when the employee must use his own judgment or discretion in the performance of that duty. Harris ex rel. Harris v. McCray, 867 So.2d 188, 191(1112) (Miss. 2003) (finding that actions of high school coaches were discretionary in nature in assessing injuries of football players and the need for medical attention). No immunity exists under the MTCA for the breach of a ministerial duty performed by the governmental employee. After reviewing Mississippi case law, statutory law, and administrative law, I find it obvious that the duty of the school district and the school bus driver to safely unload students from the bus upon arrival at the school is a ministerial duty, not a discretionary duty. The duty of the school district and bus driver to disembark the children safely upon completion of the bus route and arrival at school requires no discretion on the part of the bus driver or the school district.

¶ 28. Mississippi has recognized the duties of school districts to protect and safeguard children entrusted to the school district’s care while the student is a “user” of the bus. See Walley v. Coregis Ins. Co., 822 So.2d 902, 910(¶ 43) (Miss.2002) (quoting Johnson ex rel. Blocket v. U.S. Fid. & Guar. Ins. Co., 726 So.2d 167, 168(¶3) (Miss.1998)). The Walley court dealt with determining what activities fell within the definition of “use” of a school bus in addressing whether children injured while waiting for the school bus to arrive were covered under the school district’s under-insured motorist insurance policy. Id. at 905(¶ 17), 910(1143). Analyzing the facts of this case under the “use” analysis in Wal-ley, I submit that when A.B. boarded the bus for school, she clearly satisfied the “use” requirement. A.B.’s use of the school bus for transportation to school placed her within the zone of protection created by the school district. See id. at 907(¶ 29).

¶ 29. The supreme court in Walley, after examining case law from other jurisdictions, determined that the use of a school bus includes not only the transportation of students to and from school, but it also includes unloading the school bus and assuring that the students reach a safe place, including when they cross a street. Id. at 909(¶ 38) (citing State Farm Mut. Auto. Ins. Co. v. Kentucky Sch. Bd. Ins. Trust, 851 F.Supp. 835, 838 (E.D.Ky.1994)).

¶ 30. The Walley court’s recognition of the school district’s duty to protect students who use the bus is further supported by Mississippi statutory law and administrative regulations issued by the Mississippi Department of Education. The general statutory scheme for transportation of students is set forth in Mississippi Code Annotated sections 37-41-1 to -57 (Rev.2007). See Miss.Code Ann. § 37-41^49 (making it a misdemeanor for a school bus driver to violate the safety regulation established by the board of education); Miss.Code Ann. § 37-41-25 (false reporting by school bus driver, or other employee of district, of the number of children being transported to and from school shall be a misdemeanor); Miss.Code Ann. § 37-151-107 (Rev.2007) (misdemeanor to misrepresent the average number of children in attendance); Miss. Code Ann. § 63-3-103(e) (Rev.2004) (defining school bus and requiring plain markings).

¶ 31. Mississippi Code Annotated section 37-41-1 provides that the State Board of Education is authorized to set standards for public school bus routes, school buses, school bus drivers, and for formulating courses of training for public school bus drivers. Further, Mississippi Code Annotated section 37-11-29 (Rev.2007) mandates that school employees must report any unlawful activity on educational property or during a school-related activity. The statute explains that school property includes school buses and the school campus.

¶ 32. Mississippi Code Annotated section 37-9-69 (Rev.2007) provides the following regarding school officials’ handling of student behavior:

It shall be the duty of each superintendent, principal and teacher in the public schools of this state to enforce in the schools the courses of study prescribed by law or by the state board of education, to comply with the law in distribution and use of free textbooks, and to observe and enforce the statutes, rules and regulations prescribed for the operation of schools. Such superintendents, principals and teachers shall hold the pupils to strict account for disorderly conduct at school, on the way to and from school, on the playgrounds, and during recess.

In recognizing a school district’s duty to provide a safe environment, this Court in Doe ex rel. Doe v. Wright Security Services, Inc., 950 So.2d 1076, 1086(¶43) (Miss.Ct.App.2007) reversed a grant of summary judgment in favor of a security service in a student’s action involving her being sexually assaulted by another student. This Court found summary judgment inappropriate because the security service had contracted with the student’s school district to provide security services; thus, it had obligated itself to a duty to protect the student. Id. at 1080(¶ 15). Further, this Court found that public schools had the statutory duty to minimize the risks to students and to provide a safe environment. Id.

¶ 33. Since the statutes cited above place the responsibility on the State Board of Education to set standards for school bus drivers, routes, and the like, we must review the Mississippi Department of Education’s Board of Education Policy Manual. Section 7904 of the manual sets forth the basic job description and responsibilities of public school bus drivers. Miss. Reg. 36-000-001 § 7904 (Rev.1993) (Weil). The school bus drivers must abide by all laws and school board safety regulations. Id. Among other duties, the school bus drivers must also maintain routes and schedules as planned by the local school board. Id. at (6). The school bus drivers must also maintain discipline on the school bus and complete reports on discipline problems. Id. at (9), (11). Section 7906 of the policy manual states that “[t]he school bus driver is the most important element in the safe transportation of students.”

¶ 34. Further examining the Department of Education Policy Manual, I turn to the Instructor’s Guide for Training School Bus Drivers. Miss. Reg. 36-000-083. This administrative regulation explains that the purpose of the guide is to ensure that school-bus-driver training is consistent throughout the state. Id. at § 2. The manual explains that as a school bus driver employed by the Mississippi Department of Education, the school bus driver serves at the discretion of the State Superintendent of Education. Id. at § 3. Encompassed in the school bus drivers’ responsibilities are the requirements to conduct a pre-trip and post-trip inspections and to complete all reports on bus discipline. Id. The regulations also specify that the driver must never permit a pupil to leave the bus without proper authorization before arriving at school or home, and the driver cannot drive the bus off the regular route or for unauthorized purposes. Id. at § 10. The regulations pertaining to educational accountability explain that school buses will transport students to them school of instruction prior to the beginning of classes.

¶ 35. A review of the statutory law, administrative regulations, and case law shows that a school district and its school bus driver have a duty to safely transport students to school. The duty to safely transport includes the safe loading and unloading of students. The school bus driver possesses no discretion to deviate from a route or to allow students to depart the bus at unauthorized locations. Id. Inherent in these minimum requirements of a school bus driver is a requirement to unload the students upon arriving at the school of instruction before classes begin.

¶ 36. Therefore, I would reverse and remand this case, as I find that a question of material fact exists as to the breach of the ministerial duty to unload students safely at the school upon arrival. The school district’s answer to the complaint, as well as arguments in support of its motion for summary judgment, assert that the school bus driver exceeded the course and scope of his duties when he told A.B. to remain on the school bus instead of exiting at the high school and then hid her from school officials as he transferred her to his private vehicle from the school bus. Therefore, the school district does not dispute that A.B. remained on the bus after the bus’s arrival at school, indicating a breach of the school bus driver’s duty to safely unload students. The school district’s answer and arguments, therefore, inherently admit that the school bus driver possessed no discretion to choose to keep a child on the bus upon arrival at his destination.

¶ 37. As stated, I find that this case presents a question of a breach of a ministerial duty, not a discretionary duty. Immunity exists for breaches of discretionary duties, even whex-e the discretion is abused. Miss.Code Ann. § 11 — 46—9(l)(d). However, no such immunity exists for breaches of ministei’ial duties. This distinction is at the crux of the flaw in the school district’s argument. The school district argues that immunity exists for misconduct of its employees if that misconduct occurred in the course and scope of employment. The school district further argues that the governmental entity is not liable for any misconduct of its employees which occurred outside the course and scope of employment, such as a criminal offense. In this case, the school bus driver possessed a duty to safeguard the students who use the bus, including ensuring their safe disembarkment upon arrival at the destination. The school bus driver breached that ministerial duty by telling A.B. to remain on the bus while the driver was in the performance of his duties as a school bus driver.

II. Whether A.B.’s injury was foreseeable.

¶ 38. The supreme court in Glover ex rel. Glover v. Jackson State University, 968 So.2d 1267, 1276(¶ 29) (Miss.2007) succinctly stated that “[n]o citation of authority is necessary for the proposition that, to recover for injuries in a negligence claim, a plaintiff must prove that the defendant was negligent, and that such negligence was the proximate cause, or a proximate contributory cause, of the injuries.” The supreme court also found that “[njegli-gence is doing what a reasonable, prudent person would not do, or failing to do what a reasonable, prudent person would do, under substantially similar circumstances.” Id. at 1277(¶ 29). The Glover court concluded its definition of negligence noting that its definition “obscures the complexity of the concept of proximate cause.” Id. The court noted that “[a] defendant’s negligence is the cause in fact of a plaintiffs damage where the fact[-]finder concludes that, but for the defendant’s negligence, the injury would not have occurred.” Id. at (¶ 32) (footnote omitted). Where harm is caused by more than one tortfeasor, the test is whether a particular tortfeasor’s negligence “was a substantial factor in bringing about the resulting harm.” Id. at n. 11 (citing Dan B. Dobbs, The Law of Torts, § 171 at 415 (2000)).

¶ 39. The Glover court then set out an instructive analysis of negligence, proximate cause, and foreseeability. The Glover court examined the prior precedent of City of Jackson v. Estate of Stewart ex. rel. Womack, 908 So.2d 703 (Miss.2005), where a bus driver assisted an elderly woman off the bus at a day-care center, then turned to help another passenger exit the bus. The elderly woman fell in the parking lot, hitting her head on the pavement, and then days later suffered a stroke. Womack, 908 So.2d at 706-07 (¶¶ 7-13). As a result of the stroke, the elderly woman suffered other medical complications. Id. at (¶¶ 11-13). The supreme court held in Womack that a stroke is not the type of injury one could anticipate resulting from a fall; thus, damages related to the stroke and its consequences would not be recoverable. Id. at 715(¶ 63).

¶ 40. The Glover court reiterated that “in satisfying the requirement of foreseeability, a plaintiff is not required to prove that the exact injury sustained by the plaintiff was foreseeable; rather, it is enough to show that the plaintiffs injuries and damages fall within a particular kind or class of injury or harm which reasonably could be expected to flow from the defendant’s negligence.” Glover, 968 So.2d at 1278(¶ 37).

¶ 41. The Glover case dealt with the rape of a female student attending a youth sports program at Jackson State University (JSU). A week prior to the assault, the program’s bus driver had been informed that a girl was in the boys’ restroom. Id. at 1271(¶ 6). The driver found Glover and another female student outside the boys’ restroom, but they denied having been in the boys’ restroom. Id. The driver conducted no further investigation into the incident, even though the boy who had reported the incident continued to insist that the girls had been in the boys’ restroom. Id. One boy later testified that he had been in the restroom on that occasion having sex with Glover. Id.

¶ 42. The next week, the bus driver picked up the children for the program and then dropped them off at the wrong building. Id. at (¶ 8). Upon learning that he had dropped the children off at the wrong location, the bus driver told the students to get back on the bus. Id. The driver did not notice that Glover and two male students failed to get back on the bus. Id. The driver left the three students behind, unattended and unsupervised. Id. Shortly thereafter, the two male students allegedly took Glover into a building and raped her. Id.

¶ 43. In Glover, the bus driver knew the male students who raped Glover had violent tendencies and that JSU had a history of dime on campus. Id- at (¶ 7). The Glover court noted that an employee’s knowledge was imputed to the employer. Id. at 1276 n. 9. The court further stated that a fact-finder could find that JSU failed to provide adequate supervision and security on its premises. Id. at 1279(¶ 41). The court also found that a reasonable fact-finder could conclude that because of the inadequate security and supervision, JSU officials should have foreseen that some harm could come to Glover, including sexual activity and/or violence. Id. The Glover court noted that our law required only that the defendant foresee that some violent act or impermissible sexual act might occur. Id. The defendants did not have to foresee the particular violent or sexual act perpetrated against Glover. Id.

¶ 44. In Glover, the supreme court stated that when viewed in the light most favorable to Glover’s case, the facts could lead a reasonable juror to find that Glover’s injuries and damages were a foreseeable consequence of JSU’s negligence. Id. at (¶ 42). Therefore, the supreme court found summary judgment inappropriate. Id. The court further explained that JSU’s argument that the rape was an intervening superceding cause of Glover’s damages had no merit. Id. The court stated that precedent clearly established that where the intervening cause of the injury was foreseeable, it cannot supercede the liability of the defendant. Id.

¶ 45. In this case, the school district makes much of A.B.’s behavior of habitually skipping school. The school district states that A.B., a ninth grader at the time, would ride her assigned bus, which was driven by the school bus driver at issue here. ■ She would exit the bus at the appropriate time, and then she would leave campus without entering the school. The school district asserts that, on other occasions, A.B. would attend some of her morning classes, and then she would leave campus for the day.

¶ 46. The school district also asserts that A.B. would spend time with her boyfriend or a female friend while skipping school, and that she had, on multiple occasions, engaged in sexual intercourse with her boyfriend. However, the school district does not allege that A.B.’s other sexual encounters occurred on the school bus, while entering or exiting the school bus, or were in any way connected with her use of the school bus or the failure of the school bus driver to unload her at the school. I fail to see how A.B.’s delinquent conduct, unrelated to use of the school bus, absolves the school district’s duty to provide a safe zone for children using the school bus and to protect the students until their use of the school bus is completed.

¶ 47. The arguments pertaining to the delinquent conduct and sexual activity of A.B., on other occasions and unrelated to her use of the school bus, simply throw a smoke screen on a determination of whether the school district and its employee breached a ministerial duty to unload the students safely. The failure of the school district to report the delinquent and truant conduct, however, possibly violates the school’s requirement to control unlawful activity on school property, including school buses, as set forth in Mississippi Code Annotated section 37-11-29. The fact remains, nonetheless, that the school district does not dispute that the school bus driver told A.B. to stay on the school bus upon arriving at the school. These past delinquent acts of A.B. could perhaps also be probative of the school district’s failure to provide adequate truancy reporting and of the foreseeability that delinquent acts, sexual activity, or injury could occur if A.B. remained on the school bus in order to skip school.

¶ 48. The parties do not dispute that A.B. was a student and under the age of sixteen at all relevant times. She was not of legal age to consent to sexual activity. Any alleged past delinquent conduct or sexual activity with others did not provide the school bus driver with the discretion or authority to choose to not disembark her from the school bus upon arrival at the school. See M.R.E. 404(a) (generally, “[ejvidence of a person’s character or a trait of his character is not admissible for the purpose of showing that a person acted in conformity therewith on a particular occasion”); see also Wilkins v. State, 603 So.2d 309, 323 (Miss.1992) (In addressing proper impeachment evidence, the court found that a witness cannot be cross-examined regarding his involvement with crimes for which he had not been convicted or impeached with questions regarding crimes for which he has been charged.) School districts possess a duty to protect all students using the school bus and such safe use includes loading, unloading, and arrival at school. See Walley, 822 So.2d at 909(¶ 38) (quoting Kentucky Sch. Bd. Ins. Trust, 851 F.Supp. at 838); see also Miss. Code Ann. § 37-9-69.

      . We note that the circuit court held that A.B.'s claims that the school district failed to adopt policies or rules related to the loading of buses and the reporting of absences were clearly precluded by section 11-46-9(1 )(e). As A.B. makes no argument addressing this finding, we must conclude that she waives any assignment of error regarding subsection (e) of section 11-46-9(1).

      . "[T]he school officials in L.W. were performing a function required by statute and, therefore, [the supreme court] properly analyzed the school's actions under subsection (b) (which addresses acts or omissions while performing statutory duties), rather than subsection (d) (which addresses discretionary duties).'' Collins, 876 So.2d at 289(1116) (citing L.W., 754 So.2d at 1139-43 (¶¶ 14-29)).

      . See Miss. Dep't of Human Servs. v. S.W., 974 So.2d 253, 258-59(¶ 11) (Miss.Ct.App.2007) (explaining distinction between ministerial and discretionary duties).


author: ISHEE, J.,

text:
    Jackie Ray PRUITT, Sr., Appellant v. Richard PAYNE, Appellee.
    No. 2008-CA-00172-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.

      F.W. Mitts, Stonewall, Attorney for Appellant.
    No Brief Filed for Appellee.
    Before KING, C.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. This appeal arises from the Chancery Court of Clarke County’s grant of Richard Payne’s motion to dismiss. At a hearing on December 12, 2007, the chancery court entered an order dismissing and setting aside an earlier habeas corpus order granting visitation to Jackie Ray Pruitt, Sr. The earlier habeas corpus order granted custody of the three minor children, Tyler Payne, born June 18, 1999; Carrie Payne, born July 7, 2000; and Morgan Payne, born April 15, 2002; to their natural father, Richard. The habeas corpus order also recognized a visitation agreement between Richard and Jackie Ray, the children’s stepfather. The two parties agreed to a visitation arrangement allowing Jackie Ray visitation with the children. Jackie Ray later sought to enforce that visitation order, but at the hearing, the chancery court found that the order was temporary in nature and that as their stepfather, Jackie Ray had no right to custody. The chancery court granted Richard’s ore tenus motion to dismiss, and it is from this judgment that Jackie Ray now appeals. Jackie Ray alleges two points of error on appeal: (1) the chancery court committed error in granting the motion to dismiss without giving him reasonable notice that the dismissal was being contemplated, and (2) it was error to grant Richard’s motion to dismiss because the clean-hands doctrine prohibited Richard from benefitting from his failure to abide by the earlier visitation order.

FACTS AND PROCEDURAL HISTORY

112. On March 10, 2005, Richard was adjudicated to be the natural father of Tyler, Carrie, and Morgan. The children’s mother, Brandy Huffman Payne, was awarded temporary custody on May 25, 2006, and tragically died in an automobile accident on June 23, 2006. The three minor children were living with Brandy and her husband, Jackie Ray, at the time of her death. Tyler was also injured in the automobile crash and was hospitalized for almost a month after the accident.

¶ 3. Richard filed a petition for writ of habeas corpus on July 27, 2006, wherein he sought the return of his minor children, Carrie and Morgan, from the custody of Jackie Ray. An agreed order was later entered on August 30, 2006, granting custody of the minor children to Richard and granting visitation to Jackie Ray until more permanent relief could be obtained. Richard abided by the visitation agreement for a period of time but later stopped complying. As a result, Jackie Ray sought to enforce the agreed visitation order on the writ of habeas corpus and filed a motion for contempt and a motion to enforce the order. Richard’s attorney made an appearance, but Richard himself failed to appear at the hearing, so the matter was continued in order for Richard’s attorney to locate him. At the hearing on December 12, 2007, Richard again failed to appear, but his attorney was present. At that hearing, the chancery court determined that the previous agreed order was temporary in nature and was only to be in effect until a more permanent custody arrangement could be ordered. The chancery court found that there was no adjudication that Richard was an unfit parent. Richard’s attorney made an ore tenus motion to dismiss the action, which the chancery court granted. The chancery court also set aside the earlier temporary order granting visitation to Jackie Ray, the stepfather, as there was no right of custody as against their natural father, Richard. At the time of the hearing, no permanent custody order was in place. At the hearing, it was also established that Jackie Ray was seeking a determination of whether Richard was a fit parent in a separate proceeding, Civil Action Number 06-162-M. Jackie Ray appeals the dismissal, while Richard failed to file a brief on appeal.

STANDARD OF REVIEW

¶ 4. This Court will not disturb the chancellor’s findings of fact unless the findings are “manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Nichols v. Funderburk, 883 So.2d 554, 556 (¶ 7) (Miss.2004). An appellate court will review questions of law under a de novo standard. Threlkeld v. Sisk, 992 So.2d 1232, 1238 (¶ 14) (Miss.Ct.App.2008) (quoting Keener Props., L.L.C. v. Wilson, 912 So.2d 954, 956 (¶ 3) (Miss.2005)).

DISCUSSION

I. Whether the chancery court properly dismissed and set aside the ha-beas corpus order.

¶ 5. Jackie Ray argues that the chancery court erred in dismissing the action when there was no pleading requesting dismissal, and he contends his due process rights were violated when the chancery court dismissed the action. Jackie Ray asserts that he did not have advance notice of the motion to dismiss and that it was improperly granted since he had no opportunity to offer evidence on the matter.

¶ 6. Richard filed no brief in response. When the appellee fails to file a brief, we have two options:

The first alternative is to take the appel-lees’ failure to file a brief as a confession of error and reverse. This should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.” The second alternative is to disregard the appellees’ error and affirm. This alternative should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.”

Miller v. Pannell, 815 So.2d 1117, 1119 (¶ 20) (Miss.2002) (citations omitted). In the present case, we find that Jackie Ray has failed to make out an apparent case of error. Furthermore, the record is not of large volume, and an examination of the record yields a sound basis “upon which the judgment may be safely affirmed.”

¶ 7. Mississippi Code Annotated section 11-43-1 (Rev.2002) states that:

The writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in the cases expressly excepted.

This case was initiated by Richard, who properly filed a petition for writ of habeas corpus with the chancery court to obtain custody of his minor children from Jackie Ray.

¶8. The United States Supreme Court has acknowledged that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). There is a general presumption that a parent who is fit will act in the best interest of his or her child. Id. at 68, 120 S.Ct. 2054. A court must accord some special weight to a fit parent’s determination of a child’s best interests. Id. at 69, 120 S.Ct. 2054. “Parents with custody have a paramount right to control the environment, physical, social, and emotional [situations], to which their children are exposed.” Stacy v. Ross, 798 So.2d 1275, 1280 (¶ 23) (Miss.2001).

¶ 9. Generally, a court will not grant visitation rights to grandparents or third parties over the objection of a fit custodial parent. Naveda v. Ahumada, 381 So.2d 147, 149-50 (Miss.1980) (quoting 59 Am.Jur.2d Parent and Child § 45 (1971)). “Natural grandparents have no common-law ‘right’ of visitation with their grandchildren.” Settle v. Galloway, 682 So.2d 1032, 1035 (Miss.1996) (citing In re Adoption of a Minor v. Smith, 558 So.2d 854, 856 (Miss.1990)). “Such a right must come from a legislative enactment.” Id. Therefore, '“[b]y [enacting] statute [section 93-16-5], the [Legislature has extended third party visitation rights to grandparents when ‘such visitation rights would be in the best interest of the child.’ ” Scruggs v. Saterfiel, 693 So.2d 924, 926 (Miss.1997) (quoting Mississippi Code Annotated section 93-16-5 (Rev.1994)). However, “natural grandparents do not have a right to visit their grandchildren that is as comprehensive to the rights of a parent.” Settle, 682 So.2d at 1035. In Scruggs, a minor sibling, not a grandparent, sought to obtain visitation with her half-brother after their mother died and she and her brother were sent to live with different relatives. Scruggs, 693 So.2d at 925. The Scruggs court acknowledged “that some jurisdictions, in the absence of any statutory imperative, have made provision^] for sibling visitation when the children’s best interests so dictate.” Id. at 926. However, Scruggs declined to extend visitation rights to half-siblings and instead “invitefd] the [Legislature to consider the matter and to expand the rights set forth in [Mississippi Code Annotated section] 93-16-5 to siblings or other third parties as it sees fit.” Id.

¶ 10. Further, “in Mississippi, a finding of unfitness is necessary to award custody to a third party over a natural parent.” In re Guardianship of Brown v. Wiley, 902 So.2d 604, 609 (¶ 14) (Miss.Ct.App.2004). This Court has long recognized that:

There is a presumption in Mississippi that the best interests of a child will best be preserved by remaining with his [or her] surviving parent unless the third party seeking custody makes a clear showing of one of the following: (1) the surviving parent abandoned the child; (2) the conduct of the surviving parent is so immoral as to be detrimental to the child; or (3) the surviving parent is unfit mentally or otherwise to have custody.

Cockrell v. Watkins, 936 So.2d 970, 972 (¶ 7) (Miss.Ct.App.2006) (citing Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986)). A “chancellor may grant custody of a stepchild to a stepparent when the chancellor finds the natural parents to be unfit.” Logan v. Logan, 730 So.2d 1124, 1127 (¶ 12) (Miss.1998) (citing Sellers v. Sellers, 638 So.2d 481, 485 (Miss.1994)).

¶ 11. In the case at bar, Jackie Ray is seeking visitation with his stepchildren. However, as the chancery court noted, Jackie Ray has no right to visitation with his stepchildren under the laws of the State of Mississippi. In order for Jackie Ray to obtain custody of his stepchildren, he must demonstrate to the court that them biological father is unfit. As noted by Jackie Ray at the second hearing, there is a separate proceeding, Civil Action Number'06-162-M, in which he is seeking a determination of whether Richard is an unfit parent. Jackie Ray’s proper relief is contained in that separate proceeding. Therefore, Jackie Ray must show that Richard is an unfit parent in order to gain custody or visitation with his stepchildren. While the Legislature has chosen to extend visitation rights to grandparents by statute, they have declined to extend that same right to stepparents. Therefore, we find that the chancellor was correct to grant the motion to dismiss since Jackie Ray had no visitation rights under the laws of the State of Mississippi. This issue is without merit.

II. Whether the trial court properly granted Richard’s motion to dismiss in light of the unclean-hands doctrine.

¶ 12. Jackie Ray further asserts that Richard’s failure to abide by the earlier order granting visitation to Jackie Ray leaves Richard before a court of equity with unclean hands. Therefore, Jackie Ray contends that the doctrine of unclean hands prevents Richard from receiving equity from the court. Jackie Ray argues that the court erred in granting Richard relief by dismissing the earlier habeas corpus order because Richard failed to recognize and follow the very same visitation order. Therefore, Richard should not be allowed to benefit from his willful misconduct. Richard did not file a brief in response.

¶ 13. “The doctrine of unclean hands provides that ‘he who comes into equity must come with clean hands.’ ” In re Estate of Richardson v. Cornes, 903 So.2d 51, 55 (¶ 15) (Miss.2005) (quoting Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970)). The Mississippi Supreme Court “further expounded upon the meaning of unclean hands, stating: ‘the meaning of this maxim is to declare that no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity....’” Id. (quoting O’Neill v. O’Neill, 551 So.2d 228, 233 (Miss.1989)) (emphasis added). In sum, “whenever a party seeks to employ the judicial machinery in order to obtain some remedy and that party has violated good faith or some other equitable principle, ‘the doors of the court will be shut against him’ and ‘the court will refuse to interfere on his behalf, to acknowledge his right, or to award him any remedy.’ ” R.K. v. J.K., 946 So.2d 764, 774 24) (Miss.2007) (quoting Shelton v. Shelton, 477 So.2d 1357, 1359 (Miss.1985)).

¶ 14. The doctrine of unclean hands prevents one, who comes into court with unclean hands, from asserting claims and affirmative defenses. In the case at bar, Richard was not seeking to enforce any right of custody or visitation. Richard did initially seek help from the chancery court by filing the original habeas corpus proceeding to have his minor children returned to him. Once Richard’s children were returned to him, he did not seek further aid from the court. It was Jackie Ray who filed a motion to enforce the previously agreed upon temporary visitation arrangement. As the chancery court noted in its ruling, the habeas corpus proceeding merely adjudicated the right to custody as between the parties before the court at that time. The chancery court determined that the visitation arrangement was an arranged agreement between the parties that was designed to be temporary in nature. The chancery court further determined that Jackie Ray, as a stepfather, had no right to visitation under the laws of the State of Mississippi. Therefore, the chancery court correctly dismissed and set aside the earlier habeas corpus order at the hearing, despite Richard’s failure to comply with the temporary visitation order. Since Jackie Ray could not ultimately obtain the relief he was seeking from the court and since Richard was not seeking any relief or remedy himself, the chancery court properly dismissed the matter. This issue is without merit.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF CLARKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . The petition only requested the return of the minor children Carrie and Morgan. It is unclear what action was taken by Richard to obtain the return of the third minor child, Tyler, to his custody.