author: IRVING, P.J.,

text:
    Chad WILLARD a/k/a Chad Wayne Willard a/k/a Chad W. Willard, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01893-COA
    Court of Appeals of Mississippi.
    05/09/2017

      OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, ATTORNEY FOR AP-PELLEE.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. A jury sitting before the Stone County Circuit Court found Chad Willard guilty of sexual battery. On appeal, Willard claims the circuit court erred when it excluded a portion of his only witness’s testimony based on a discovery violation. We agree. Accordingly, we reverse the circuit court’s judgment and remand the case for a new trial.

FACTS

¶ 2. As of Monday, May 14, 2012, Sally had been living in a mobile home in Stone County, Mississippi, for approximately ten days. She had four roommates: Dalton and Dylan Willard, Chad Knight, and Brandon Warden. They began playing a drinking game that evening, and. .they continued until they ran through a case of beer sometime around 8:00 p.m.

¶3. At approximately 1:00 a.m., Willard’s girlfriend, Beth, picked them up and drove everyone to Willard’s house, where they had mixed drinks. Sally had four, “big glasses.”- During the hour or two that they were at Willard’s house, Beth got “upset” because she “thought [Sally] was acting too flirty with ... Willard.” Sometime between 2:00 and 3:00 a.m., Willard drove everyone but Beth back to the mobile home. Sally, Dalton, and Brandon then drove to Harrison County to buy more beer. They got back at approximately 4:00 a.m.

¶4. According to Sally, Willard fell asleep in Dylan’s bed sometime around 5:00 a.m. Dalton and Warden also fell asleep in different beds. By 7:00 a.m., everyone who was awake had stopped drinking. Sally and Dylan woke up Warden and told him to move to “a little mattress on the floor in the living room.” Sally and Dylan were both intoxicated when they went to bed.

¶ 5. Sally later testified that before they fell asleep, Willard came into the room and got into bed with them sometime around 8:00 a.m. Dylan was between Sally and Willard. When Willard told Dylan to tell Sally to take off her clothes, she “kind of just laughed. it off’ because she “just thought he was being a drunk pervert,” and went to sleep while wearing her dress.

¶ 6. When Sally woke up what she perceived as approximately an hour later, Dylan was gone, her underwear had been removed, Willard was on top of her, and they were having intercourse. She told Willard to stop, but she did not scream or yell. She did not know if Willard complied when she told- him to stop because she “blacked out at that point.” During direct examination, she said she did not physically try to stop him. But during cross-examination, she testified that she tried to push him away. Although she initially said that “four or five minutes” elapsed from the time that she woke up and later “black[ed] out,” she later said that “[i]t wasn’t a long period-of time.” Ultimately she said she did not know how long she was awake, but “[i]t did feel like a long time.”

¶ 7. When Sally finally woke up around 2:00 p.m., her underwear was on the floor, but she was still wearing her dress. She put on her underwear before leaving the -bedroom. Dylan was still asleep, but Dalton and Warden were shocked when Sally told them what had happened. She took a shower, and she did not immediately contact authorities because she was scared and “[k]ind of in shock.”

¶ 8. There are conflicting accounts regarding when Sally first reported Willard. According to Sally, she went to her mother’s house later that day, which would have been May 15, 2012. She also said that “it was like maybe two hours before the police got there.” However, Investigator Ray Boggs said that Sergeant Adam Guidry called him about Sally’s report around 8:00 p.m. on May 16, 2012. In any event, Sergeant Guidry drove Sally to the sheriffs department on May 16, 2012, where she met with Investigator Boggs, who later described her as “distraught,” “upset,” and “very emotional.” Sally gave him a written statement, and the unwashed dress and underwear that she wore Monday night and Tuesday morning.

¶ 9. The next morning, Investigator Boggs took Sally’s clothes to the Mississippi Crime Laboratory. He then went to Willard’s house. At Investigator Boggs’s request, Willard met with him at the sheriffs department. In a short written statement, Willard admitted that he slept at the mobile home, but he said he did not have sex with Sally. That evening, Sally underwent a sexual-assault examination.

¶ 10. Investigator Boggs went to the mobile home to contact Dalton, Dylan, Warden, and Knight. No one answered the door on May 17, 2012. Investigator Boggs went back the next day, but no one answered the door then, either. Investigator Boggs later testified that he “eventually spoke with them,” but “[t]hey were very uncooperative.” Eventually, three people gave short undated statements. Only Dylan’s was mentioned with any specificity. Overall, Investigator • Boggs opined that Dalton, Dylan, Knight, and Warden simply did not want to be involved in the case. Investigator Boggs did not contact Beth, because no one mentioned her during his investigation.

¶ 11. At trial, the prosecution called Sally, Investigator Boggs, the nurse practitioner who performed the sexual-assault examination, and two expert witnesses employed by the Mississippi Crime Laboratory. The nurse practitioner who performed the sexual-assault examination explained that Sally did not have any vaginal trauma, but there was recent bruising on her fingers, lower back, left inner thigh, and left leg. The expert witnesses testified that seminal fluid was on Sally’s underwear, and DNA testing revealed a profile that was consistent with Willard’s. In other words, Willard’s semen was recovered from Sally’s underwear.

¶ 12. After the prosecution rested its case-in-chief, Willard called Dylan. Willard’s lawyer said that Dylan’s “testimony would be limited to mainly impeachment of’ Sally. Willard also announced that Dylan would be his only witness. The prosecutor said that Willard’s lawyer had “advised [him] as soon as [Willard’s lawyer] found [Dylan].” Although Willard’s lawyer did not discuss his efforts to find Dylan, he said that “we never found out where Dylan was.” The prosecutor argued that Willard should have been able to find Dylan earlier, and “[fit’s not ... like they didn’t know about [Dylan] or know where he was.” The prosecutor objected, again noted that Dylan had given a “very, very short statement,” and said that aside from that it would be for impeachment purposes, he was uninformed about what Dylan’s “potential testimony [was] going to be.”

¶ 13. When asked for a proffer, Willard’s lawyer said that Dylan would testify:

That [Dylan] and [Willard] were in bed, and [Sally] came in and joined them. That she was still awake when [Dylan] left and went into another bedroom. That in the morning, she woke up, she acknowledged that she had sex with [Willard and she f]elt shamed. She stayed there the remaining part of the day and the night. And [she] did not leave until the next day, the 16th.

The prosecutor quoted Dylan’s statement: “We were drinking at my house[. M]y dad went to sleep fírst[. T]hen me, my bro, [Knight], and [Sally] stayed up drinking. Then I went to sleep a couple hours later. No rape took place at my house.” The prosecutor further noted that the case had been pending since 2013, “[a]nd not until last night was the [S]tate advised that [Dylan] was going to testify about this.”

¶ 14. In response to the circuit judge’s questions, Willard’s lawyer conceded that he had received Sally’s written statement during discovery, so he had reason to anticipate her testimony that Willard got into bed with Sally and Dylan. Willard’s lawyer also confirmed that after he received Sally’s statement, he had time to produce witnesses who could impeach her “prior to last night.” The circuit judge then announced that he was “going to sustain the State’s motion in limine as a discovery issue and prevent [Dylan] from testifying to impeach [Sally] with something that [Willard and his lawyer had] known since discovery .... ”

¶ 15. However, the circuit judge said that Dylan could testify that Sally was ashamed on the morning of the 15th, and that she stayed at the mobile home until she left on the 16th. The circuit judge also gave the prosecutor time to interview Dylan. After the circuit judge clarified his ruling, he commented that “the way to remedy all of this is to declare a mistrial and wait a month and interview him and he is not a brand new witness anymore. We’re not going to do that.” After a ten-minute recess, Willard announced that he was not going to testify.

¶ 16. During direct examination, Dylan testified that he woke up around noon on the 15th, and Sally was in the living room with Dalton and Knight. Dylan said that Sally was ashamed because she had sex with Willard, but she “shrugged it off.” Contrary to Sally’s testimony, Dylan said that she spent the rest of the day and night drinking with him and their friends at the mobile home, and she did not leave until the following day.

¶ 17. The jury ultimately found Willard guilty of sexual battery. Following a bifurcated proceeding, the circuit court found that Willard qualified for enhanced sentencing as a habitual offender as set forth in Mississippi Code Annotated section 99-19-81 (Rev. 2015). Consequently, the circuit court sentenced Willard to thirty years in the custody of the Mississippi Department of Corrections without eligibility for parole or early release. Willard appeals.

DISCUSSION

¶ 18. Willard’s appellate counsel argues that the circuit court erred when it (1) excluded portions of Dylan’s testimony; (2) granted two of the prosecution’s proposed jury instructions; and (3) denied Willard’s motion'for a new trial. Willard also filed a pro se supplemental brief. Within it, Willard argues that his trial counsel was ineffective- because he prevented Willard from moving for a speedy trial; entertained or initiated plea discussions despite Willard’s insistence that he would not plead guilty; failed to ensure that the transcript included voir dire; failed to prevent someone who knew Investigator Boggs from serving on the jury; and “failed in his duties to introduce” witnesses.

I. Dylan’s Excluded Testimony

¶ 19. Willard claims that the circuit court erred when it limited Dylan’s testimony. “In reviewing rulings' of a trial court regarding matters of evidence, relevancy[,] and discovery violations, the standard of review is ■ abuse of discretion.” Myers v. State, 145 So.3d 1143, 1147 (¶ 10) (Miss. 2014). Our review involves determining “(1) whether such a violation occurred and, if so, (2) whether the exclusion of this evidence was an appropriate remedy.” Id. at 1148 (¶ 10).

¶ 20. As discussed above, the circuit court granted the State’s “motion in limine as a discovery issue” and held that Dylan would not be allowed to testify that Sally got into bed with him and Willard, and she stayed in the bed with Willard after he left. Willard has a constitutional right to call witnesses in his favor. See U.S. Const, amend. VI; Miss. Const, art. 3, § 26. But his right to do so is balanced against his obligation to disclose the witnesses he intended to call at trial, including those who “by the exercise' of due diligence may [have] become known[] to the defendant or defendant’s counsel.” URCCC 9.04(C).

¶ 21. However, “exclusion of evidence is a radical sanction that ought be reserved for cases in which the defendant participates significantly in some deliberate, cynical scheme to gain a substantial tactical advantage.” Myers, 145 So.3d at 114915). It is not enough to show that evidence was recently discovered. Id. at (¶ 16). “[T]he record must contain evidence that the defendant committed a discovery violation to obtain a tactical advantage before exclusion becomes the appropriate sanction.” Overton v. State, 195 So.3d 715, 718 (¶ 10) (Miss. 2016).

¶ 22. Willard certainly knew about Dylan’s involvement in the case. Dylan gave a very short written statement that Investigator Boggs memorialized in his notes. The prosecution apparently gave Investigator Boggs’s notes to Willard’s lawyer during discovery, although the record does not specify when that occurred, and it is unclear what Investigator Boggs’s notes said. So the problem was. not that Willard’s lawyer had only recently learned about Dylan’s involvement or status as a potential witness—it was that Willard’s lawyer had only recently located Dylan and disclosed his intent to call Dylan as a witness. Willard’s lawyer said that he had not been able to find Dylan. Beyond-that, there was no discussion on the record regarding Willard’s lawyer’s efforts.

¶ 23. Dylan’s subsequent testimony revealed that he had not been in contact with Willard, and there were reasons that he may have been difficult to locate. But the circuit judge could not have known that at the time he made his decision. In any event, the prosecutor said that Willard’s lawyer had “advised [him] as soon as he found” Dylan. Still, that provides no clarity regarding Willard’s efforts to locate Dylan.

. ¶ 24, However, as mentioned above, the Mississippi Supreme Court has held that “the record must contain evidence that the defendant committed a discovery violation to obtain a tactical advantage before exclusion becomes the appropriate sanction.” Overton, 195 So.3d at 718 (¶ 10). The supreme court has also “rejected a posture in which [an appellate court] assume[s] that recently discovered evidence is part of some scheme to defraud justice and require the defendant to prove otherwise.” Id. In Pelletier, 207 So.3d at 1266-67 (¶¶ 13-16), this Court addressed a claim that a trial court had improperly excluded a witness—the defendant’s stepfather and boss—because the defendant did not disclose the witness until after the State had rested its case-in-chief. We upheld the trial court’s decision, because the witness was not difficult to locate, the defendant withheld the witness’s identity until after the State rested- its case-in-chief, and the defendant offered “no legitimate excuse for his blatant violation of the discovery rules.” Id. at 1270 (¶ 31).

¶ 25. Here, the prosecution was equally aware of Dylan’s involvement in the case. Additionally, Willard’s lawyer disclosed his intent to call Dylan before the prosecution called its first witness. And Willard’s lawyer explained that he had only recently been able to contact Dylan. Presumably, Willard should have been able to contact Dylan earlier, but that is based on the presumption that they had a normal father-son relationship. The circuit court was not aware of the nature of Willard’s and Dylan’s relationship until Dylan testified on the subject. Based on the evidence that existed at the time of the circuit judge’s ruling, it was an abuse pf discretion to .assume that Willard or his. lawyer must have been in contact with Dylan earlier, or otherwise knew how to contact him. The prosecutor conceded that Willard’s lawyer had disclosed Dylan as soon as possible. Because there was no evidence that Willard’s late disclosure of Dylan was motivated by a desire to obtain a tactical advantage at trial, the circuit court erred when it limited Dylan’s testimony.

¶ 26. It is unnecessary to reverse the circuit court’s, judgment and remand the case for a new trial unless Willard can demonstrate that he was prejudiced or harmed by the exclusion of Dylan’s testimony. See Myers, 145 So.3d at 1150 (¶ 18). In Ross v. State, 954 So.2d 968, 1101 (¶ 68) (Miss. 2007), the Mississippi Supreme Court found that the credibility of the only witness to a crime was “crucial,” so the defendant had been prejudiced by the exclusion of the witness’s prior inconsistent statement despite the fact that the defendant’s lawyer was allowed to impeach the witness regarding her prior inconsistent statement.

¶27. Similarly, Dylan’s excluded testimony tended to impact Sally’s credibility by suggesting that her recollection of the events was flawed. Dylan’s excluded testimony would have contradicted Sally’s testimony that Willard got into bed with her and Dylan. Otherwise, he would have contradicted her testimony that she fell asleep when he was still in the bed, and she did not wake up before she realized that Willard was having sex with her. At best, Dylan’s excluded testimony would have tended to show that Sally got into bed with him and Willard, and she chose to remain there after Dylan left. That would not tend to prove that Sally had consensual sex with Willard.

¶ 28. However, as in Ross, Sally’s credibility was crucial, and Dylan’s excluded testimony could have diminished her credibility. There was also evidence that Willard’s girlfriend was upset because Sally acted “too flirty” with Willard. Sally testified that she did not scream or yell when she realized that Willard was on top of her. She also testified inconsistently regarding whether she had tried to push Willard away. And although she testified that she could not remember how long she and Willard had sex, she also testified that it might have been four or five minutes. Finally, she testified that she did not know whether Willard complied when she told him to stop, because she “blacked out at that point.” The supreme court has held that reversible error resulted from the exclusion of a witness whose testimony “reflected on the credibility of [a defendant’s] accuser.” Skaggs v. State, 676 So.2d 897, 903-04 (Miss. 1996).

¶29. Under the totality of the circumstances, we are compelled to follow Mississippi precedent and find that Willard was prejudiced by the circuit court’s improper exclusion of the testimony at issue. It follows that we must reverse the circuit court’s judgment and remand the case for a new trial. We find that all remaining issues are moot. However, one issue bears discussion based on this Court’s recent decision on the subject matter.

II. Jury Instruction S-6

¶30. According to Willard, the circuit court erred by give instruction S-6 over his lawyer’s objection. Instruction S-6 stated that “the uncorroborated testimony of a sexual battery victim alone is sufficient to sustain a conviction for sexual battery where it is consistent with the circumstances.” Willard acknowledges that the substance of the instruction is a principle that is often discussed incident to an appellate review of the sufficiency of the evidence. See Bozeman v. State, 208 So.3d 1091, 1093 (¶ 6) (Miss. Ct. App. 2017). But Willard argues that instructing the jury on that principle operated as an improper comment on the evidence. Willard further claims that the instruction “encouraged circumvention of the [Sjtate’s obligation to prove guilt beyond a reasonable doubt” and that it gave the jurors the impression that they could find him guilty “even if [they] found Sally’s testimony was not believable.” “Jury instructions are generally within the discretion of the trial court and the settled standard of review is abuse of discretion.” Moody v. State, 202 So.3d 1235, 1236-37 (¶ 7) (Miss. 2016). Furthermore, an appellate court must review the jury instructions as a whole, and when they “fairly—although not perfectly— announce the applicable primary rules of law” we will not find reversible error. Id. at 1237 (¶ 7).

¶ 31. Willard is correct that “[t]he judge in any criminal cause, shall not sum up or comment on the testimony, or charge the jury as to the weight of evidence; but at the request of either party he shall instruct the jury upon the principles of law applicable to the case.” Miss. Code Ann. § 99-17-35 (Rev. 2015). However, in Parks v. State, 2015-KA-01607-COA, — So.3d -, ---, 2017 WL 499171, **13-14 (¶¶ 70-72) (Miss. Ct. App. Feb. 7, 2017) (petition for cert. filed Apr. 5, 2017), this Court upheld a trial court’s decision to give a practically identical instruction. We held that the instruction in that case was not a comment on the evidence, and it did not “tell the jury how to weigh the credibility of [the victim’s] testimony.” Id. at -, *13 (¶ 71). We further noted that other instructions informed the jurors that they must find that the defendant was guilty beyond a reasonable doubt. Id. Other jurisdictions have reached similar re-suits. See Daniel v. State, 296 Ga.App. 513, 675 S.E.2d 472, 477 (2009) (finding no error because the instruction was a correct statement of law, and the trial court gave other instructions regarding the prosecution’s burden of proof); State v. Clayton, 32 Wash.2d 571, 202 P.2d 922, 925 (1949); McBride v. Lavigne, 230 W.Va. 291, 737 S.E.2d 560, 567 (2012).

¶32. However, in Ludy v. State, 784 N.E.2d 459, 460 (Ind. 2003), the Indiana Supreme Court reviewed a claim that a trial court had improperly given the following instruction: “A conviction may be based solely on the uncorroborated testimony of the alleged victim if such testimony establishes each element of any crime charged beyond a reasonable doubt.” The Ludy court held:

The challenged instruction is problematic for at least three reasons. First, it unfairly focuses the jury’s attention on and highlights a single witness’s testimony. Second, it presents a concept used in appellate review that is irrelevant to a jury’s function as fact-finder. Third, by using the technical term “uncorroborated,” the instruction may mislead or confuse the jury.

Id. at 461. The Ludy court added that “[t]o expressly direct a jury that it may find guilt based on the uncorroborated testimony of a single person is to invite it to violate its obligation to consider all the evidence.” Id. at 462. The Indiana Supreme Court also concluded that jurors “may interpret this instruction to mean that baseless testimony should be given credit and that they should ignore inconsistencies, accept without question the witness’s testimony, and ignore evidence that conflicts with the witness’s version of events.” Id. Three other jurisdictions agree that the instruction at issue is improper. See Gutierrez v. State, 177 So.3d 226, 233-34 (Fla. 2015); State v. Stukes, 416 S.C. 493, 787 S.E.2d 480, 483 (2016); Veteto v. State, 8 S.W.3d 805, 816 (Tex. Ct. App. 2000) (abrogated on other grounds by State v. Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008)).

¶ 33. As it currently stands, this Court’s decision in Parks is binding precedent in Mississippi, although the petition for writ of certiorari in that case is still pending at this time. In the event that a similar instruction becomes an issue on remand, the parties and the circuit court should be aware of any developments in Parks. Nevertheless, stare decisis and the current state of the law require that we find no merit to this issue.

¶ 34. THE JUDGMENT OF THE STONE COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO STONE COUNTY.

LEE, C.J./ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., BARNES AND WILSON, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . We have substituted a fictitious name for the victim, who was twenty-one years old at the time of these events.

      . Dalton and Dylan are Willard’s twin sons.

      . The mobile home had three bedrooms. Sally explained that one bedroom was on one end, and two bedrooms were on the other end. Ordinarily, she and Dalton slept in one bedroom, but they were not romantically involved. Dylan slept in.one bedroom. Knight slept on the floor in Dylan’s room. Warden slept in the third bedroom.

      . Beth had married Willard by the time he went to trial. ■

      . At trial, Sally could not remember whether everyone left Willard’s house because Beth was upset. Sally also testified that she was not aware that Beth was upset "until [she] got back to the trailer and [Beth] c[a]me out there to the trailer arid everybody told [her] to hide.” It is unclear whether Sally meant that Beth went; to the mobile home during the early riiorning hours of May 15, 2012.

      .At trial, Sally testified that as of May 14, 2012, she and Dylan had been having "sexual relations,” but they “were just having fun,” During cross-examination, she said that she “was not [in] a relationship” with Dylan.

      . Willard’s trial began on July 28, 2015. That day was devoted solely to selecting the jury. The next morning, the circuit court heard unrelated pretrial motions in limine before stating that it would "reserve the matter of the other witness that we discussed in chambers on Mr. Dylan Willard ....” That in-chambers discussion was not transcribed, but we deduce that Willard's lawyer had announced his intent to call Dylan as a witness.

      . “Given that the trial judge actually considered whether to delay the trial, the State’s failure to make such a request is moot.” Pelletier v. State, 207 So.3d 1263, 1270 (¶ 32) (Miss. Ct. App. 2016), cert. granted, 204 So.3d 291, cert. dismissed, 2014-CT-00869-SCT (Jan. 19, 2017).

      . The record was supplemented with the voir dire transcript.

      .- Dylan said that he had only seen Willard "off and on throughout [his] life,” and he had not “been with [Willard] ... this past few years.” According to Dylan, he changed his “phone number so much [that Willard could] barely even find [him].” During the pendency of Willard’s trial, Dylan had been arrested and temporarily detained on unrelated charges. He had never contacted anyone about the case, because he thought his “part” would only involve testifying in court.


source: Caselaw Access Project

author: WILSON, J.,

license: Public Domain

text:
    Rebecca S. DAVIDSON, Appellant v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM OF MISSISSIPPI, Appellee
    NO. 2016-SA-00189-COA
    Court of Appeals of Mississippi.
    05/16/2017

      HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, TOMIE T. GREEN, J.
    ATTORNEY FOR APPELLANT: JOHN T. BALL
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JANE L. MAPP
    BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. In 2013, Rebecca Davidson applied for and was granted non-duty-related disability benefits from the Public Employees’ Retirement System of Mississippi (PERS). In 2014, PERS . reexamined Davidson’s claim, and the PERS medical board recommended that her benefits should be terminated because she was physically and mentally capable of returning to her employment. Davidson appealed to the PERS disability appeals committee (DAC)j and the DAC also found that she was capable of returning to work and that her benefits should be terminated. The PERS board of trustees adopted the proposed opinion and recommendation of the DAC. and denied her request for continued benefits. Davidson then appealed to the Hinds County Circuit Court, First Judicial District, which affirmed the decision, of the board of trustees. Davidson appealed again to this Court, arguing that the agency’s decision is not supported by substantial evidence. Because PERS’s decision is supported by substantial evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

. ¶2. Davidson is a state, employee with twelve years of state service.-She was last employed as the Americans with Disabilities Act (ADA) coordinator at the Natchez branch of Copiah-Lineoln Community College (Co-Lin). Her job involved meeting with students to determine their eligibility for assistance, conferring with instructors about students’ needs, and -monitoring students’ progress. She was responsible for about fifteen students.

¶ 3. Davidson testified that in 2012 she began to miss work frequently .because of mental health issues and “difficulties at home.” She testified that she eventually sought treatment for her mental health issues at St. Dominic’s Hospital in Jackson because she was having suicidal thoughts. She testified that she was evaluated and that outpatient treatment was recommended. Davidson attended outpatient therapy with Dr. William Cook, a psychiatrist, for seventeen weeks starting in July 2012. Dr.- Cook diagnosed Davidson with post-traumatic stress disorder, ADHD, and bipolar disorder. Davidson continued to see Dr. Cook periodically thereafter. Initially, she saw Dr. Cook every other week, but later she saw him only once per month, and at the time of the hearing in this matter she saw him only once, every three months; - -

" ¶4. It appears that Davidson did not return to work at Co-Lin after July 2012. She terminated her employment at Co-Lin on December 10, 2012, and applied with PERS for non-duty-related disability benefits in January 2013; At the time, Dr, Cook certified that, in his opinion, Davidson was “unable to work at all”- due to. her mental health issues, severe mood swings,- anxiety, depression, and difficulty concentrating. In her application, Davidson stated that she was unable to do anything “involving memory” or “being around.people.”

¶ 5. On April 25, 2013, PERS approved Davidson’s application for non-duty-related disability with a reexamination after one year-pursuant to Mississippi Code Annotated section 25-11-113(3) (Supp. 2014).

116. In May 2013, Davidson presented at St. Dominic’s emergency room. She exhibited symptoms of .depression and expressed suicidal thoughts. In July 2013, Davidson was approved for Social Security disability benefits. That month she began seeing family therapist Mary Ann Simmons. She also continued to see Dr. Cook periodically. She testified that she became depressed and. suicidal again in January 2014. ,r

¶ 7. On April 24, 2014, PERS informed Davidson that her disability claim was scheduled for reevaluation and requested that.she submit updated medical information and forms from her treating physi-dans. On June 12, 2014, Dr. Cook completed an updated “Statement of Examining Physician” (PERS Form DSBL 7). Dr. Cook indicated a primary diagnosis of “mild” bipolar disorder and a secondary diagnosis of “mild” ADHD. Dr. Cook further indicated that Davidson had reached maximum medical improvement, that she had no impairments or restrictions due to her condition, and that her prognosis for recovery was good. After reviewing the information provided by Davidson and Dr. Cook, PERS requested that Davidson undergo an independent medical evaluation (IME).

¶8. On August 23, 2014, Davidson underwent an IME by Dr. John Montgomery, a psychiatrist. Dr. Montgomery diagnosed Davidson with depression and anxiety disorder, both in remission, and borderline personality traits. Dr. Montgomery found no “evidence to support a diagnosis of PTSD or bipolar disorder.” Dr. Montgomery also concluded that, “[f]rom a psychiatric standpoint, [Davidson’s] prognosis was good,” and he “could not find any compelling evidence that [Davidson] would be presently unable to handle the stresses and demands of appropriate employment.”

¶ 9. On November 12, 2014, PERS informed Davidson that the PERS medical board, comprised of three physicians, had determined that her disability benefits should be terminated effective January 31, 2015, because she was physically and mentally able to return to employment. Davidson appealed the medical board’s decision to the DAC.

¶ 10. On February 9, 2015, the DAC, comprised of two physicians and an attorney, held a hearing on Davidson’s claim. Davidson submitted notes from a February 1, 2015 office visit with Dr. Cook, as well as a January 28, 2015 letter from Dr. Cook. Dr. Cook disagreed with Dr. Montgomery’s diagnosis and stated that he was “not recommending” that Davidson return to work. Dr. Cook stated that Davidson’s illnesses, including bipolar disorder and PTSD, “have symptoms that wax and wane over time.” Dr. Cook stated that Davidson was not acutely suicidal but was still “on multiple psychiatric medications and re-quirted] close monitoring for her mood instability.” Dr. Cook reported that Davidson was“frustrated and upset” by Dr. Montgomery’s report. Davidson’s family therapist, Simmons, also submitted a letter urging PERS to allow Davidson to remain on disability.

¶ 11. Davidson testified at the hearing before the DAC that she stopped coming to work in 2012 because her “behavior was irrational” and she “had outbursts of rage.” She testified that, at that time, she was severely depressed and “felt rejected” and “unloved.” She finally sought treatment at St. Dominic’s when she “kind of hit rock bottom” and felt “somewhat suicidal.” She testified that the “main reason” she could not go back to work was because she “cannot remember like [she] used to could remember”—her “memory just does not work right.” She testified that she sometimes does something but has “no recollection” of having done it, and that she “can’t stay focused.” Davidson also testified that she has a “very intense fear of being around people” and that she is “afraid of being judged” or “criticized.” Davidson testified that she still experienced outbursts of rage and severe depression.

¶ 12. At the hearing, Davidson also testified that when she was a GED examiner at Co-Lin, prior to the time she became ADA coordinator, there was an incident where one of her examination books turned up missing. She said this caused her a “massive amount of shame and guilt and racing thoughts,” “[a]nd that’s when everything started failing at work.” This incident appears to have occurred in 2010, two years before she stopped coming to work. Davidson testified that Co-Lin later provided her with an aide to help her with paperwork, but the aide was “elderly” and “forgetful” and was not “much help” to her. Davidson also testified that her “alcoholic ex-husband” was a source of stress and anxiety. Davidson continued to live with the ex-husband long after they were divorced. The ex-husband quit drinking, but according to Davidson, that only made things “worse” “[b]ecause he became holier than thou.” Davidson testified that the prospect of losing her disability benefits had also caused her a tremendous amount of stress and anxiety.

¶ 13. Following the hearing, the DAC submitted a sixteen-page proposed statement of factual findings and conclusions of law to the PERS board of trustees. The DAC discussed Davidson’s work history and medical history, her medical treatment and counseling, and the opinions of Dr. Cook, Dr. Montgomery, and others. The DAC found that Davidson was physically and mentally capable of returning to her employment and, therefore, was no longer disabled within the meaning of Mississippi Code Annotated section 25—11—113(1)(a). Accordingly, the DAC recommended that Davidson’s request for continued non-duty-related disability benefits be denied. On February 21, 2015, the board of trustees adopted the DAC’s recommendation to terminate Davidson’s disability benefits.

¶ 14. Davidson subsequently filed a timely notice of appeal to the circuit court. After Davidson and PERS submitted briefs, the circuit court affirmed the decision of the board of trustees. Davidson again filed a timely notice of appeal.

DISCUSSION

¶ 15. Our review of PERS disability determinations “is limited”: PERS’s determination “must remain undisturbed unless [its] order: (1) is not supported by substantial evidence, (2) is arbitrary or capricious, (3) is beyond the scope or power granted to the agency, or (4) violates [the claimant’s] constitutional rights.” Pub. Emps’ Ret. Sys. v. Howard, 905 So.2d 1279, 1284 (¶ 18) (Miss. 2005) (quoting Pub. Emps’ Ret. Sys. v. Marquez, 774 So.2d 421, 425 (¶ 11) (Miss. 2000)). “ ‘Substantial evidence’ has been ' defined by this Court as ‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion.’ ” Knight v. Pub. Emps’ Ret. Sys., 108 So.3d 912, 915 (¶ 13) (Miss. 2012) (quoting Pub. Emps’ Ret. Sys. v. Dishmon, 17 So.3d 87, 91 (¶ 19) (Miss. 2009)). “A rebuttable presumption exists in favor of PERS’s decision, and [the claimant has] the burden of proving the contrary.” Dearman v. Pub. Emps’ Ret. Sys., 205 So.3d 1100, 1103 (¶ 10) (Miss. Ct. App. 2016) (quoting Brinston v. Pub. Emps’ Ret. Sys., 706 So.2d 258, 259 (¶ 5) (Miss. Ct. App. 1998)). Moreover, we are “obligated to afford [the agency’s] determinations of credibility in the fact-finding process substantial deference.” Pub. Emps’ Ret. Sys. v. Cobb, 839 So.2d 605, 609 (¶ 12) (Miss. Ct. App. 2003). We will not “re-evaluate the evidence” or “make[] [our] own determination of the trustworthiness of some particular testimony.” Id.

¶ 16. As a PERS disability retiree, Davidson was required to submit to periodic medical reexaminations of her condition. Miss. Code Ann. § 25-11-113(3). If, after such a reexamination, the PERS medical board finds and certifies that the disability retiree “is physically and mentally able to return to the employment from which [s]he is retired, the board of trustees ... shall, after a reasonable period of time, terminate the disability allowance, whether or not the retiree is.reemplóyed or seeks that reemployment.” Miss. Code Ann. § 25-11-113(6). As this Court has observed, “[cjlearly the Legislature did not intend that a determination of disability is permanent.” Freeman v. Pub. Emps’ Ret. Sys., 822 So.2d 274, 280 (¶ 18) (Miss. 2002). Rather, to continue to receive disability benefits, a claimant must show, that she remains physically or mentally unable to return to the employment from which she is retired. See Miss. Code Ann. § 25-11-113(6).

■ ¶ 17. The evidence presented at the hearing before the DAC is discussed above. Dr. Montgomery conducted an IME of Davidson, and in his thorough August 23, 2014 report to the medical board, Dr. Montgomery found no “compelling clinical evidence that [Davidson] would be ... unable to handle the stresses and demands of appropriate employment.” . Dr. Montgomery’s conclusion was consistent with Dr. Cook’s most recent Form DSBL 7, which he signed on June 12, 2014. Therein, Dr. Cook certified that Davidson was at maximum medical improvement with no impairments or restrictions and that her prognosis. for recovery was “good.” Also, Dr. Cook’s office notes from his appointment with Davidson on April 25, 2014, reflect that Davidson was “doing the best [he had] seen.” She was “smiling” with “no complaints” and her mood was “euthymic,” i.e., non-depressed and normal. By this time, Davidson was seeing Dr. Cook only once every three months. All of this constitutes substantial evidence to support the board of trustees’ decision that Davidson was no longer disabled and was physically and mentally capable of returning to work.

¶ 18. Davidson argues that PERS' should have adopted and followed Dr. Cook’s subsequently expressed opinions that she should not return to work. She contends that Dr. Cook’s later opinions are more credible or persuasive than Dr. Montgomery’s. However, when the relevant evidence and opinions of physicians conflict, it is the responsibility of PERS—through its medical board, DAC, and board of trustees—to sort through the conflicting evidence and to determine which is more credible and persuasive. We do not second-guess or reevaluate such determinations when, as in this case, they are supported by substantial credible evidence. See, e.g., Howard, 905 So.2d at 1287 (¶23); Pub. Emps’ Ret. Sys. v. Stamps, 898 So.2d 664, 674 (¶ 32) (Miss. 2005). Furthermore, “the question [for this Court] is not whether there was evidence in support of [Davidson’s] disability, but whether there was substantial evidence to support the finding of [PERS] ” that she is capable of returning to her prior employment. Pub. Emps’ Ret. Sys. v. Dean, 983 So.2d 335, 340 (¶ 17) (Miss. Ct. App. 2008) (quotation marks omitted). The evidence before PERS—including Dr. Montgomery’s report and opinion, the DSBL 7 completed by Dr. Cook, and Dr. Cook’s office notes— was adequate and substantial evidence to support the agency’s finding.

¶ 19. Davidson also asserts that Dr. Montgomery’s “opinion was of little value as he did not have an opportunity to consider Dr. Cook’s” subsequently proffered opinions, including Dr. Cook’s opinions that Davidson’s mental state had deteriorated because she was worried about losing her disability benefits. This argument goes to the weight of Dr. Montgomery’s opinion, not its sufficiency. One physician’s opinion is not rendered incompetent or invalid just because another physician later offers different or additional opinions. Again, the persuasiveness of the doctors’ respective opinions was a matter for PERS to determine, not a reviewing court.

¶ 20. Finally, Davidson argues that she “has been approved for Social Security [disability benefits” and that this “recognize[s] her inability to perform the substantial acts of her prior employment or any other jobs in existence in the United States economy.” However, it is well settled that “PERS is not bound by any finding of the Social Security Administration.” Stamps, 898 So.2d at 675 (¶ 35) (quoting Doyle v. Pub. Emps’ Ret. Sys., 808 So.2d 902, 907 (¶ 16) (Miss. 2002)).

¶21. In summary, there is substantial evidence to support PERS’s finding that Davidson is capable of returning to work and is no longer disabled within the meaning of the statute. Davidson’s arguments to the contrary are without merit. Accordingly, the judgment of the circuit court, affirming PERS’s decision to deny Davidson’s request for continued benefits, is affirmed.

¶ 22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: GRIFFIS, P.J.,

text:
    Gloria THOMPSON, Appellant v. Mildred LUCAS, Appellee
    NO. 2016-CA-00196-COA
    Court of Appeals of Mississippi.
    05/16/2017

      BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, JOHNNIE E. WALLS JR., J.
    ATTORNEY FOR APPELLANT: ELLIS TURNAGE

      ATTORNEY FOR APPELLEE: C. PAIGE HERRING
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. Gloria Thompson appeals the entry of summary judgment and dismissal of her complaint with prejudice. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Thompson and Mildred Lucas were with family and friends at a casino in Greenville, Mississippi. While at the casino, Lucas ran out of cash. As a result, Thompson loaned Lucas twenty dollars. Lucas advised Thompson that if she did not win any money, she would give Thompson her money back the next day.

¶ 3. Lucas did not win any money. The next day, Thompson drove to Lucas’s residence to pick up the twenty dollars that Lucas had borrowed. As Thompson was leaving, she tripped and fell in Lucas’s driveway.

¶ 4. Thompson filed a complaint and claimed her injuries were proximately caused by the negligence of Lucas under a theory of premises liability. Thompson alleged that, at the time of her injury, she was an invitee.

¶ 5. Following discovery, Lucas filed a motion for summary judgment. The circuit court found Thompson was a licensee, and Lucas had not breached the applicable duty owed to Thompson. As a result, the circuit court granted Lucas’s motion for summary judgment and dismissed the case with prejudice.

¶ 6. Thompson now appeals and argues the circuit court erred in granting summary judgment based on Thompson’s status as a licensee, and genuine issues of material fact exist as to Thompson’s status.

STANDARD OF REVIEW

¶ 7. A circuit court’s grant of summary judgment is reviewed de novo. Olier v. Bailey, 164 So.3d 982, 986 (¶ 9) (Miss. 2015). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). We view the evidence in the light most favorable to the nonmoving party. Olier, 164 So.3d at 986 (¶ 9).

ANALYSIS

I. Whether the circuit court erred in granting summary judgment based on Thompson’s status as a licensee.

¶ 8. “In determining whether liability attaches to a landowner, this Court must determine (1) the status of the visitor, whether trespasser, licensee, or invitee; (2) the duty that the landowner owed to the visitor based on that status; and (3) whether the landowner breached his or her duty of care to the visitor.” Id. at (¶ 10).

¶ 9. In a premises-liability case, “duty is contingent on the status of the injured person.” Albert v. Scott’s Truck Plaza Inc., 978 So.2d 1264, 1266 (¶7) (Miss. 2008). Thus, the first step “is to identify the status of the injured [person] at the time of the injury.” Id. “The difference in classification is important; a landowner owes a much higher duty of care to invitees than he or she does to licensees.” Olier, 164 So.3d at 986-87 (¶ 12).

¶ 10. A licensee is one who enters upon the property of another for “his or her own convenience, pleasure or benefit pursuant, to the license or implied permission of the owner.” Id. at 986 (¶ 12). An invitee is a visitor “who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage.” Id.

¶ 11. The first distinction between a licensee and an invitee involves the difference between an invitation and mere permission.

A social guest may be cordially invited and strongly urged to come, but he is not an invitee. Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter, if they desire to do so. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee, ... but it does not make him an invitee.

Clark v. Moore Mem’l United Methodist Church, 538 So.2d 760, 764 (Miss. 1989).

¶ 12. Here, the record shows Thompson entered Lucas’s property pursuant to the permission of Lucas, not in answer to an express or implied invitation by Lucas. There were no agreed-upon terms regarding how, where, or when the money would be repaid, other than Lucas stating she would give Thompson the money “tomorrow” in the event she did not win. There is nothing in the record to suggest that Lucas invited Thompson to her property to collect the money. Instead, the record shows Thompson either called ahead or simply drove to Lucas’s home to collect the money.

¶ 13. Thompson argues that since she called and advised Lucas.that she was en route to her house, and because Lucas did not object to Thompson’s visit, Thompson was invited. We disagree. Simply because Lucas did not object to and had “no problem” with Thompson stopping by does not amount to an invitation. Instead, it shows Thompson entered Lucas’s property with permission.

¶ 14. The next distinction between a licensee and an invitee is mutual advantage.

[N]o matter the category, whether invitee, licensee, or trespasser, the entrant’s advantage is not the issue. In all situations, the entrant has voluntarily appeared for some reason sufficient to that person. The law does not much concern itself with the nature of the reason. The differences among the categories focus on the owner and whether that person is receiving an advantage, or just permits the presence of the entrant, or actually opposes the entry.

Daulton v. Miller, 815 So.2d 1237, 1239 (¶ 9) (Miss. Ct. App. 2001). Thus, for purposes of our analysis, we must focus on Lucas and whether Lucas received an advantage, or just permitted Thompson’s presence.

¶ 15. Thompson asserts she was an invitee since “she conferred a benefit and advantage upon Lucas, by granting her an interest free loan that enabled her to engage in gaming activities to attempt to win a jackpot and to personally experience the enjoyment of gaming.” However, on the day of Thompson’s injury, there- was no business advantage, compensation, or other benefit conferred to Lucas as. a result of Thompson’s entry onto her premises. Instead, Thompson entered Lucas's property entirely for Thompson’s own benefit, to collect the money previously loaned to Lucas.

¶ 16. Thompson further asserts Lucas received a tangible benefit since Thompson came to Lucas’s home to pick up the money, thereby saving Lucas the trip. However, there is nothing in the record to indicate Lucas asked Thompson to come to her house to pick up the money or required that Thompson come by to pick up the money. Moreover, there is nothing to suggest Lucas refused to bring the money to Thompson or was unable to take the money to Thompson.

¶ 17. Overall, the record shows Thompson entered Lucas’s property for her own convenience or benefit pursuant to the permission of Lucas. Thus, we find that at the time of her injury, Thompson was a licensee.

¶ 18. Having determined Thompson’s status, the next step in our analysis is to identify the corresponding duty owed to Thompson and whether Lucas breached that duty. “A landowner owes a licensee a duty to refrain from willfully or wantonly injuring him.” Little ex rel. Little v. Bell, 719 So.2d 757, 760 (¶16) (Miss. 1998). In her deposition, Thompson admitted Lucas did not willfully or wantonly cause her injury. Specifically, Thompson stated Lucas did “nothing” to cause her injuries, “but [Lucas] should have got[ten] her property fixed ....”

¶ 19. We find no evidence that Lucas willfully or wantonly injured Thompson. Accordingly, Lucas did not breach the duty owed to Thompson as a licensee.

II. Whether genuine issues of material fact exist as to Thompson’s status.

¶20. “When circumstances surrounding the [visitor’s] purpose on the property are in, dispute, status will be a fact question for a jury to. decide.” Cade v. Beard, 130 So.3d 77, 81 (¶ 14) (Miss. 2014). “But where there are no factual disputes, status is a question of law for the [circuit] court’s determination.” Id.

¶ 21. Here, it is undisputed that Thompson’s'purpose on Lucas’s property was to collect the money previously loaned. Thus, the determination of Thompson’s status was a question of law for the circuit court. The circuit court'appropriately concluded under the facts presented that Thompson was a íicensee rathér than an invitee.

CONCLUSION

¶ 22. We find no genuine issues of material fact exist as to Thompson’s status. The record shows Thompson was a licensee at the time of her injury, and there is no evidence of. willful or wanton conduct. Accordingly, we affirm the circuit court’s entry of summary judgment and dismissal of the complaint.

¶ 23. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING, P.L, BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . During her deposition, Thompson testified that on the day of her injury, she called Lucas and told Lucas she was coming by to pick up the money. Lucas, on the other hand, testified that she was going to take Thompson the money, but Thompson said she did not have any gas money and had to go to work, and therefore came by to pick up the money.


author: CARLTON, J.,

text:
    Timmy ROBERTS a/k/a Timmy Robert, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee
    NO. 2016-CP-00126-COA
    Court of Appeals of Mississippi.
    05/16/2017

      HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, WILLIAM A. GOWAN JR., J.
    ATTORNEY FOR APPELLANT: TIMMY ROBERTS (PRO SE)
    ATTORNEYS FOR APPELLEE: ANTHONY LOUIS SCHMIDT JR., JAMES M. NORRIS, DARRELL CLAYTON BAUGHN
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. Timmy Roberts was convicted of aggravated assault and sentenced to two concurrent twelve-year terms in the custody of the Mississippi Department of Corrections (MDOC). While incarcerated, Roberts received a rule-violation report (RVR) for possessing a cell phone. After unsuccessfully challenging the RVR and exhausting his administrative remedies through MDOC’s Administrative Remedy Program (ARP), Roberts sought review in the Hinds County Circuit Court, First Judicial District. The circuit court affirmed the judgment of the ARP. Roberts now appeals the circuit court’s judgment and raises the following issues: (1) MDOC violated his right to due process by failing to hold a hearing within seven working days of the alleged rule violation; (2) the investigator failed to investigate the alleged rule violation; and (3) MDOC’s decision lacked evidentiary support.

¶ 2. Finding no error, we affirm the circuit court’s judgment.

FACTS

¶ 3. In May 2012, Roberts was convicted of two counts of aggravated assault involving a firearm and was sentenced to two concurrent twelve-year terms in MDOC’s custody. On June 2, 2015, while an inmate at Walnut Grove Correctional Facility (Walnut Grove), Roberts received an RVR for possession of a cell phone. An investigation and hearing were conducted, and on June 16, 2015, the hearing officer found Roberts guilty of the rule violation.

¶ 4. On June 19, 2015, Roberts filed an appeal through MDOC’s ARP. Roberts received the MDOC’s response on June 23, 2015. MDOC held that Roberts “failed to produce any facts to support [his] claim that the cell phone found was not [his].” MDOC denied Roberts’s claim for relief, ruling that his RVR for cell-phone possession would not be removed from his record.

; ¶ 5. Unsatisfied with MDOC’s response, Roberts appealed to the circuit court on July 20, 2015. By order entered December 15, 2015, the circuit court found it had jurisdiction over Roberts’s appeal and that the ARP’s decision was “supported by substantial evidence and violate[d] no statutory or constitutional right.” On January 26, 2016, Roberts filed his notice of appeal.

DISCUSSION

I. Whether Roberts filed his appeal in the proper venue.

¶ 6. At the time Roberts received his RVR and filed his motion for judicial review, he was incarcerated at Walnut Grove in Leake County. However, Roberts filed his appeal in Hinds County. MDOC asserts that Roberts filed his appeal in an improper venue and that the circuit court therefore lacked jurisdiction over his appeal. Jurisdiction constitutes a question of law, and this Court reviews questions of law de novo. Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss. Ct. App. 2007).

¶ 7. Mississippi Code Annotated section 47-5-807 (Rev. 2015) provides that “[a]ny offender who is aggrieved by an adverse decision rendered pursuant to any administrative[-]review procedure ... may, within thirty (30) days after receipt of the agency’s final decision, seek judicial review of the decision.” In Putnam v. Epps, 63 So.3d 547, 551 (¶ 8) (Miss. 2011), the Mississippi Supreme Court recognized that “[t]he statutes governing the administrative-review procedure do not contain a venue provision.” (Citing Miss. Code Ann. §§ 47-5-801, -807 (Rev. 2004)). The Putnam court explained that “[v]enue in civil cases is governed by Mississippi Code [Annotated sjection 11-11-3 [(Rev. 2014)],” and the supreme court thus clarified that “[S]ection 11-11-3 applies to claims brought pursuant to [s]ection 47-5-807 of the [ARP] statutes.” Putnam, 63 So.3d at 551 (¶ 9).

¶ 8. With respect to the rules on venue in civil actions, the supreme court provided the following guidance in Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155-56 (Miss. 1992):

In venue disputes courts begin with the well-pleaded allegations of the complaint. These, of course, may be supplemented—and contested—by affidavits or other evidence in cognizable form. What is important is that venue needs to be settled early on. This policy premise un-dergirds our rule that a defendant waives any objection to venue unless he asserts it early on. If venue is proper when and where suit is filed, it may not be ousted by later events.
Of right, the plaintiff selects among the permissible venues, and his choice must be sustained unless in the end there is no credible evidence supporting the factual basis for the claim of venue. Put ¡otherwise, the court at trial must give the plaintiff the benefit of the reasonable doubt, and we do so on appeal as well. Still, we regard venue a right as valuable to the defendant as to the plaintiff. If in the. end venue is improper, the court must honor [a] timely objection and transfer to the correct venue, and, if it does not do so, we must reverse.

(Emphasis added) (internal citations omitted).

¶ 9. In applying section 11-11-3 to a prisoner’s appeal of an MDOC decision or policy, this Court has repeatedly held that such appeals “must be made in the circuit court of the county where the prisoner resides.” Hearron v. Miss. Dep’t of Corr., 166 So.3d 63, 65-66 (118) (Miss. Ct. App. 2016). As stated, the record shows that Roberts was housed at Walnut Grove in Leake County at the time the RVR occurred and at the time he filed his appeal to circuit court. MDOC therefore argues that Roberts should have filed his appeal to the Leake County Circuit Court rather than the Hinds County Circuit Court. The record reflects, though, that Roberts chose to file his civil action in Hinds County although he could have filed the appeal in Leake County. Pursuant to Mississippi Rule of Civil Procedure 12(b)(3), MDOC could have asserted improper venue as an affirmative defense in its answer to Roberts’s appeal, or MDOC could have filed a motion to transfer venue. However, MDOC failed to pursue either action, and as a result, MDOC waived both its objection and affirmative defense as to improper venue. See M.R.C.P. 12(h)(1).

¶ 10, In Fluker v. State, 200 So.3d 1148, 1148 (¶ 1) (Miss. Ct. App. 2016), the defendant filed a, “Petition for Writ of Habeas Corpus or for Order to Show Cause and Motion for Evidentiary Hearing” in the circuit court and named the State Parole Board as the respondent. This Court viewed the defendant’s petition as a regular civil action against the parole board rather than a motion for postconviction relief. Id. at 1149 (¶ 3). In discussing the issue of venue in Fluker, we stated:

The dissent seems to suggest that venue in such a case is a jurisdictional issue that we must address sua sponte. However, other than in certain special classes of local actions, venue is not jurisdictional, and the fact that a case is filed in an improper venue does not of itself affect the right of the court to hear and determine the case on the merits. The Mississippi Rules of Civil Procedure make this clear. Rule 12(h)(1) provides that venue is an affirmative defense that is waived if it is not timely asserted by motion or answer. And Rule 82(d) provides that[,] when an action is filed laying venue in the wrong county, the action shall not be dismissed, but the court, on timely motion, shall transfer the action to the court in which it might properly have been filed. Thus, even if we were to raise the issue of venue sua sponte, we could not affirm the dismissal of Fluker’s petition on that ground. Again, improper venue is a reason to transfer a case, not to dismiss it. .

Fluker, 200 So.3d at 1149 (¶ 3) (internal citations, quotations, and footnotes omitted).

¶ 11. As Mississippi caselaw establishes, “a trial court will not be put in error on appeal for a matter not presented to it for decision.” Harrington v. Office of Miss. Sec’y of State, 129 So.3d 153, 169 (¶40) (Miss. 2013) (citation omitted). In the present case, neither Roberts nor MDOC raised improper venue as an- objection, affirmative defense, or issue before the circuit court.. We therefore find the issue is waived.

II.Whether MDOC violated Rob* erts’s right to due process by not conducting a hearing within seven working days of the rule violation.

¶ 12. In his first assignment of error, Roberts argues MDOC violated his right to due process by failing to hold a hearing until ten working days after the alleged violation occurred. Roberts asserts that he received the RVR on June 2, 2015, but that a hearing was not held until June 16,2015. According to Roberts’s argument, MDOC’s disciplinary procedures require a hearing to be held within seven working days of the rule violation. Because his hearing was not conducted until ten working days after he received the RVR, Roberts claims that MDOC violated his right to due process. He further contends that, in violation of its disciplinary procedures and his due-process rights, MDOC failed to provide a written explanation regarding the delay in his hearing.

¶ 13. Despite Roberts’s assertions on appeal, the record before this Court contradicts his claims of a due-process violation. MDOC’s disciplinary procedures state that a hearing officer will conduct a disciplinary hearing within seven working days after a violation occurs. If more than seven working days elapse, a written explanation must be provided. Furthermore, the disciplinary procedures explain that “[established time frames and procedural requirements listed in this standard operating procedure are advisory guidelines and do not constitute a due[-]process right to the offender. The Agency’s failure to abide by the time frames and procedural requirements will not be a basis for dismissal of the RVR.”

¶ 14. In the present case, the record reflects that ten working days indeed passed between Roberts’s alleged rule violation and the hearing on the matter. However, as indicated by MDOC’s disciplinary procedures, the provided time frames were advisory only. Furthermore, Roberts’s RVR indicated that the hearing was not held within seven working days because the “unit [was] on lockdown.” Thus, based upon a review of the record, including MDOC’s disciplinary procedures and Roberts’s RVR, we find no merit to Roberts’s claims of a due-process violation.

III. Whether the investigator failed to investigate the rule violation.

IV. Whether MDOC’s decision lacked evidentiary support.

¶ 15. We next address Roberts’s remaining two issues together. In so doing, we acknowledge his argument that, in further violation of his due-process rights and MDOC’s procedures, the investigator failed to investigate his alleged rule violation. As a related argument, Roberts contends that no evidence supported the hearing officer’s finding that he committed the rule violation. We again find, however, that the record clearly refutes Roberts’s claims.

¶ 16. When reviewing an appeal from an administrative agency, “the standard of review applied by this Court is identical to that of the circuit court.” Siggers, 962 So.2d at 80 (¶ 4). Unless the decision of the administrative agency “was unsupported by substantial evidence, ... arbitrary or capricious, ... beyond the agency’s scope or powers[,] or violated the constitutional or statutory rights of the aggrieved party,” this Court will not disturb that agency’s decision. Id.; see also URCCC 5.03. “There is a rebuttable presumption which favors the agency’s decision[,] and the challenging party has the burden of proving the contrary.” Ross v. Epps, 922 So.2d 847, 849 (¶ 4) (Miss. Ct. App. 2006).

¶ 17. Despite Roberts’s allegations, the RVR indicates that an investigation began within twenty-four hours of the discovery of Roberts’s rule violation. The record further includes a statement from Investigator Brady Sistrunk, who discovered the rule violation. According to Investigator Sistrunk’s typed statement, he found a cell phone in Roberts’s cell during a search. Investigator Sistrunk stated that Roberts refused to get out of his bed when ordered and that Roberts tried to push an object between his bed and the wall before rising from his bed. After securing Roberts, Investigator Sistrunk stated that he recovered the item, which turned out to be a deodorant container. Inside the deodorant container, Investigator Sistrunk discovered a cell phone.

¶ 18. Thus, based upon a review of the record, we find that substantial evidence supported the hearing officer’s determination that Roberts committed a rule violation. We therefore find no merit to Roberts’s claims on appeal.

¶ 19. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . Uniform Rule of Circuit and County Court Practice 5.03 states that an agency's decision will not be disturbed on appeal unless the judgment: (l) was unsupported by substantial evidence, (2) was arbitrary and capricious, (3) was beyond the power of the agency, or (4) violated the complainant’s statutory or constitutional rights.

      . At the time Roberts received his RVR and filed his motion for judicial review, he was incarcerated at Walnut Grove in Leake County, Mississippi. Walnut Grove closed in September 2016, and Roberts is now an inmate at the Kemper County Correctional Facility.

      . The circuit court’s order reflects that its "internal system shows the clerk did file something from Roberts on July 20, 2015[,] in his criminal file. July 20 would have been within thirty days of receipt of his second response (June 23, 2015) and thus timely.” On August 18, 2015, Roberts sent the circuit court a letter- inquiring about the status of his July appeal.

      . Section 11-11-3(1)(a)(i) provides:
      Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides, or, if a corporation, in the county of its principal place of business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.


author: BARNES, J.,

text:
    Kenneth R. BORRIES and First Federal Savings and Loan Association of Pascagoula-Moss Point, Appellants v. GOSHEN MORTGAGE, LLC, as assignee MNH Sub 1 LLC, assignee of Citi-Mortgage Inc., assignee of Mortgage Electronic Registration Systems, Inc., and nominee of First Choice Funding, Inc., Appellee
    NO. 2015-CA-01487-COA
    Court of Appeals of Mississippi.
    05/16/2017

      JACKSON ' COUNTY CHANCERY COURT, JAYE A. BRADLEY, J.
    ATTORNEYS FOR APPELLANTS: MATTHEW WARD MCDADE, DAVID ELIAS KIHYET, DONALD ALAN WINDHAM, MATTHEW EARL PERKINS
    ATTORNEY FOR APPELLEE: GENE D. BERRY
    BEFORE LEE, C.J., BARNES AND FAIR, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. This appeal stems from a complaint filed in the Chancery Court of Jackson County where Goshen Mortgage LLC (Goshen) requested a declaratory judgment that it held the first-priority deed of trust on an approximately 8.9-acre tract' of real property. Goshen moved for summary judgment alleging that a deed of trust filed on behalf of Defendant Kenneth Bornes did not provide notice to any party under Mississippi Code Annotated section 89-5-37 (Rev. 2011) because it did not identify a beneficiary; thus, Goshen’s deed of trust had first priority over Borries’s deed of trust. The chancery court agreed, and granted summary judgment in favor of Goshen. Defendants appealed. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In June -2005, Michael and Mary Ann Rogers purchased a residence and 8.9 acres of land located on Ramsay Road in Vancleave, Mississippi.. They executed a deed of trust for $174,600 in favor of Coastal Mortgage Group Inc. (Coastal). On August 1, 2005, the. Rogerses executed a $20,000 deed of trust on 2.17 acres, which included the residence, and was within the 8.9-acre tract purchased by the Rogerses. No beneficiary was named on this deed of trust (Blank Beneficiary Deed of Trust). In October 2005, the Rogerses executed a deed of trust in the amount of $26,5000 in favor of the United States Small Business Administration (SBA). In March 2007, the Rogerses refinanced their loans, and at the closing on March 21, 2007, executed a deed of trust on the 8.9 acres for $243,695 to First Choice Funding Inc. (First Choice), Goshen’s predecessor-in-interest. It was filed on April 30, 2007. As a result of the refinance, the Rogerses’ Coastal and SBA loans were paid off.

¶ 3. On April 9, 2008, the Blank Beneficiary Deed of Trust was corrected to name Borries as the beneficiary, and it was rerecorded in the land records. The deed of trust was recorded again in May 2008. Borries then foreclosed on the deed of trust, and the Rogerses abandoned the property sometime in 2008. On July 17, 2008, a trustee’s deed was recorded, conveying the 2.17-acre tract to Borries after he bid $25,272.18 for it. In February 2010, Borries executed a deed of trust on the 2.17-acre tract in the amount of $194,000 to First Federal Savings and Loan Association of Pascagoula-Moss Point (First Federal).

¶4. In May 2014, Goshen filed suit in the Jackson County Chancery Court seeking a declaratory judgment that, among other matters, Goshen had the first-priority deed of trust on the 8.9-acre tract. "On April 7, 2015, Goshen moved for summary judgment against Borries and First Federal, arguing that the Blank Beneficiary Deed of Trust was défective and void; thus, it could not provide record notice under section 89-5-37. Additionally, Gosh-en argued that because this deed of trust was corrected one year later to name Bor-ries as beneficiary after the First Choice deed of trust was recorded, Goshen’s deed of trust had first priority over the corrected Borries deed" of trust. Attached to Goshen’s motion was' an affidavit by Jacques B. Favret, who was retained by First Choice to close the refinancing and pay off any liens- on the property. Favret ordered a title search -of the property, which revealed Coastal’s first-priority deed of trust and the SBA’s second-priority deed of trust; however, no other deed of trust executed by the Rogerses was found.

¶ 5. In July 2015, following á hearing, the chancery court issued an order granting Goshen’s motion for ' summary judgment. The court found that under Mississippi statutes, ' Goshen held the first-priority deed of trust on the subject property. Borries and First Federal filed a motion for reconsideration, which was denied. They appealed, raising three issues: (1) whether Goshen had the priority interest ahead of. Borries without showing it had either record or actual notice - of a prior encumbrance; (2) whether Goshen bears the burden of proving lack of actual notice at the summary-judgment stage of a declaratory-judgment action; and (3) whether the chancery court erred in granting summary judgment without Goshen’s offering evidence of actual notice of a prior encumbrance. As these issues ■ are. intertwined, we shall discuss them together.

STANDARD OF REVIEW

¶ 6. The appellate court applies ' a de novo standard of " review when analyzing a trial court’s grant or denial of a motion for summary judgment. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss. 2009). The evidence will be viewéd in the light most favorable to the nonmoving party. Id. Summary judgment is proper “if the pléadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). The moving party has the burden of proving there is no genuine issue of material fact. Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss. 2010) (citation omitted). Once shown, “the burden of rebuttal falls upon the non-moving party” to produce specific facts showing there is a genuine issue of matei’ial fact for trial. Wilbourn v. Stennett, 687 So.2d 1205, 1213 (Miss. 1996) (citing M.R.C.P. 56(e)).

ANALYSIS

¶ 7. In Mississippi, the priority of real-property instruments is governed by Mississippi Code Annotated section 89-5-5 (Rev. 2011):

Every conveyance, covenant, agreement, bond, mortgage, and deed of trust shall take effect, as to all creditors and subsequent purchasers ... without notice, only from the time when delivered to the clerk to be recorded; and no ... deed of trust which is unrecorded or has not been filed for record, shall take precedence over any similar instrument affecting the same property which may be of record ... to the end that ... the priority thereof shall be governed by the priority in time of the filing of the several instruments, in the absence of actual notice.

In other words, if there is no actual notice of prior encumbrances, the priority of instruments is based on a first-to-file rule. Section 89-5-37, however, provides that the chancery clerk and deputies are not to record any mortgage or deed of trust in which the beneficiary is not disclosed. If an instrument without a beneficiary is recorded, it “shall not impart notice to anyone.” Miss. Code Ann. § 89-5-37 (Rev. 2011).

1Í8. The trial court ruled that sections 89-5-5 and 89-5-37 govern, and because the beneficiary on the deed of trust at issue was not named, notice was not imparted to anyone. Therefore, the court found that Goshen, as assignee of First Choice, held the prior recorded deed of trust for $243,695, which was recorded on April 30, 2007. While Borries corrected the $20,000 Blank Beneficiary Deed of Trust nearly one year later, on April 9, 2008, naming himself as beneficiary, that deed of trust was subordinate to the First Choice deed of trust under the first-to-file rule of section 89-5-5.

¶ 9. The Appellants do not challenge the trial court’s finding that there was no record notice of the defective deed of trust under section 89-5-37, but instead argue that summary judgment was improper because fact issues remain on actual notice, the exception to first-to-file priority under section 89-5-5. They note that the trial court made no finding regarding actual notice. The Appellants also argue that Goshen had the burden of proof to show no actual notice, and the evidence Goshen offered was insufficient. They contend that the Favret affidavit attached in support of Goshen’s motion for summary judgment merely addressed record notice and not actual notice, and Favret had no personal knowledge of either.

¶ 10. According to section 89-5-37, because the Blank Beneficiary Deed of Trust did not name a beneficiary, it could “not impart notice to anyone.” Since the statute does not limit its effect to constructive notice, the statute might be interpreted to mean any type of notice. The Mississippi Supreme Court has not yet considered whether improper filing of a deed of trust without a beneficiary could give actual notice of its content to someone who actually sees the document in court files. In Life Insurance Co. of Virginia v. Page, 178 Miss. 287, 301, 172 So. 873, 876 (1937), the Mississippi Supreme Court, citing the predecessor statute to section 89-5-37, found that the “attempted designation of a beneficiary” in the deed of trust was not sufficient “to constitute constructive notice of its contents.” The court then noted that “the appellant had no actual notice of the deed of trust” and concluded that the deed of trust was subordinate to a subsequent lien. Id. The court did not indicate whether viewing the document in the public records might have provided actual notice to the subsequent lienholder. However, in a similar context, the supreme court has held that an improper recording of a deed of trust prevented only constructive, not actual, notice of its terms.

¶ 11. In Bass v. Estill, 50 Miss. 300 (1874), the Mississippi Supreme Court considered the effect of a deed of trust improperly filed of record as it lacked proper acknowledgment. There, a judgment was entered in Bolivar County Circuit Court against John Estill, who was found to owe a debt to the Basses. On the same day, Estill executed and filed a deed of trust in the Chancery Court of Bolivar County for the benefit of a company. Id. at 302. One of the Basses was physically present during the filing of the deed of trust, and was aware of its nature and purposes, proving actual notice. The supreme court stated there was actual notice of the deed of trust, and that the judgment hen was subordinate. Id. at 306.

¶ 12. Similarly, in Metropolitan Bank, the United States Court of Appeals for the Fifth Circuit, applying Mississippi law, held that a deed of trust with a defective acknowledgment was ineligible for recor-dation, and when recorded, did not impart constructive notice to creditors in the absence of actual notice. Metro. Nat’l Bank, 901 F.2d at 1302. Thus/ it appears that the prohibition against notice by an improperly recorded deed of trust applies to constructive notice only and would not prevent actual notice.

¶ 13. Here, the Appellants argue that Goshen’s motion for summary judgment was insufficient to disprove actual notice. Goshen, on the other hand, argues that Borries’s deed of trust is “void.” In support, Goshen begins its argument with a discussion, of mortgages, not deeds of trust, stating: “An instrument cannot operate as a mortgage unless there exist, as parties thereto, both a mortgagor and a mortgagee.” 54A Am. Jur. 2d Mortgages § 19 (2009) (citing Collins v. Collins, 51 Miss. 311, 320 (1875) (“The essentials of a conveyance of land are, a thing to be granted, a person to whom, and the sealing and delivery of the deed.”)); Restatement (Third) of Property, Description of the Mortgage Obligation § 1.5 (1996) (“As against subsequent grantees, a mortgage must identify the mortgagqe with reasonable certainty.”).

¶ 14. Goshen' also cites to numerous cases that say a deed without a grantee is void. See Morgan v. Collins School Home, 160 Miss. 321, 327-28, 133 So. 675, 676-77 (1931); Reed v. Reed, 98 Miss. 350, 354, 53 So. 691, 692 (1910) (citing Allen v. With-row, 110 U.S. 119, 128, 3 S.Ct. 517, 28 L.Ed. 90 (1884)); see also Parsons v. Marshall, 243 Miss. 719, 139 So.2d 833 (1962). We cannot accept this argument, however, as the case before us involves a three-party instrument, the deed of trust, rather than a two-party instrument such as deed of conveyance or mortgage. “A deed of trust is a three-party arrangement in which the borrower conveys title to an interest in real property to. a third party to hold for the benefit of the lender until repayment of the loan. ... [T]here are three parties to a deed of trust: (1) the trustor, who owns the property; (2) the trustee, to whom the property is conveyed as security for the obligation of the trustor; and (3) the beneficiary, to whom the trustor owes the obligation.” 54A Am. Jur. 2d Mortgages § 19 (2009) (citations omitted).

¶ 15. Here, uncorrected, the deed of trust may well have been valid between the grantor/trustor, the Rogerses, who borrowed funds, and the grantee/trustee, Kihyet, to whom the property was conveyed as security for the loan, even though the beneficiary was not named. Page tells ■us as much—that court did not find the deed of trust void but merely subordinate to the subsequent lien. Section 89-5-37 does not declare a deed of trust without a named beneficiary void but incapable of providing notice. Further, as the deed of trust identifies the note, date thereof, and payment schedule, the beneficiary could with simple review have been reasonably certain. Accordingly, we cannot agree with Goshen’s contention that the Blank Beneficiary Deed of Trust was void. Therefore, we look to see whether there was sufficient evidence to disclaim actual notice on the part of Goshen in its motion for summary judgment.

¶ 16. Favret swore, based on “personal knowledge,” that the lender First Choice had no knowledge of any other deed of trust aside from the two mortgages discovered during the title search and paid off at the refinance closing—the Coastal and SBA deeds of trust for $182,335.80 and $24,743,15, respectively. Favret, as managing member of Title Plus LLC, the settlement agent for First Choice, and in turn a representative of Goshen, was sufficiently involved with the transactions to have personal knowledge of them. It was his responsibility to obtain a title report and to pay off all liens encumbering the property. Attached to the affidavit was a detailed report of the title search, ordered by Favret, which revealed only the Coastal and SBA deeds of trust, but not the Blank Beneficiary Deed of Trust. We find Favret’s affidavit sufficient evidence of lack of actual knowledge of the lender’s agents, to shift the burden. “Once the absence of genuine issues has been shown, the burden of rebuttal falls upon the non-moving party ... [to] produce specific facts showing that there is a genuine material issue for trial.” Wilboum, 687 So.2d at 1213. The Appellants did not offer any evidence to contradict the affidavit.

¶ 17. The trial court did not err in finding Goshen held priority interest over Bor-ries’s deed of trust. Summary, judgment was proper as there was no genuine issue of material fact that Goshen -had actual knowledge of the defective deed of trust or Borries’s lien. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Goshen.

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

• LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The tide history on the prior property owners is undisputed.

      . In 2007 or early 2008, after the Rogerses secured the March 21, 2007 loan from First Choice, they obtained a divorce. Subsequently, they separately filed for bankruptcy protection. The chancery court entered default judgments against the Rogerses, who never answered the complaint.

      . A copy of the title report prepared by Atlanta Title Abstractors was attached as an exhibit to the affidavit.

      . "Under Mississippi law, a prior deed, whether recorded or unrecorded, is good against a subsequent purchaser or creditor with actual notice of it.” Metro. Nat’l Bank v. United States, 901 F.2d 1297, 1303 (5th Cir. 1990) (citing Dixon & Starkey v. Lacoste, 9 Miss. 70, 107 (1843)).

      . Borries made no motion to strike the affidavit because of lack of personal knowledge. Therefore, he has waived that argument. However, the trial court, and this Court, on de novo review, have the obligation to "determine whether a party has carried its summary-judgment burden based upon the evidence presented.” Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 90-91 (¶20) (Miss. 2013) (citations omitted).

      . Chapter 36, article 25 of the Code of 1857 provided that "any deed or conveyance which is admitted to record, without acknowledgment or proof as aforesaid, shall not be regarded as furnishing notice to subsequent purchasers for a valuable consideration.” 1857, Miss. Laws 311.

      . Metropolitan Bank relied on section 89-3-1 of the Mississippi Code (1972), which until its revision in 2011 included the same language as the 1857 statute previously quoted.

      ."Actual notice” has been defined as “such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry.” Metro. Nat’l Bank, 901 F.2d at 1303 (citing Black’s Law Dictionary (5th ed. 1979)). "Constructive notice” is a substitute for actual notice, and has been defined as "implied or imputed by law, usually on the basis that the information is part of a public record or file ... as contrasted with actual notice of such thing." Black’s Law Dictionary (6th ed. 1990).

      . In contrast, a mortgage is merely an encumbrance created to pay a debt and not a conveyance in trust. “The primary differences between a mortgage and a deed of trust are that there are two parties to a mortgage, the mortgagor and the mortgagee, while deeds of trust are three party instruments .... ” 59 C.l.S. Mortgage Distinguished § 17 (2009).

      . While Borries was not named, the amount of the debt was included on the face of the deed of trust along with information that the note was dated the same date and outlining the payment schedule.

      .Section 89-5-3 of the Mississippi Code Annotated (Supp. 2016) provides that an unrecorded deed of trust is “void as to all creditors and subsequent purchasers ... without notice, unless they be acknowledged or proved. ... [b]ut as between the parties and their heirs, and as to all subsequent purchasers with notice,” the instrument is "valid and binding.”


author: BARNES, J„

text:
    Marzettia MOORE, Appellant v. ROUSE’S ENTERPRISES, LLC, Appellee
    NO. 2016-CA-00241-COA
    Court of Appeals of Mississippi.
    05/16/2017

      HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. CHRISTOPHER LOUIS SCHMIDT, J.
    ATTORNEY FOR APPELLANT: CAROL L. HENDERSON
    ATTORNEYS FOR APPELLEE: BRADLEY ADAM HAYS CHRISTOPHER OWEN MASSENBURG
    BEFORE LEE, C.J., BARNES, ISHEE AND GREENLEE, JJ.
   BARNES, J„

FOR THE COURT:

¶ 1. Marzettia Moore filed a negligence complaint against Rouse’s Enterprises LLC (Rouse’s) after she slipped and fell in a Rouse’s grocery store. At trial, the Harrison County Circuit Court, First Judicial District, granted Rouse’s motion for a directed verdict, finding Moore had failed to satisfy her burden of proof for the premises-liability claim. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 10, 2010, Moore and her husband, Anthony Moore, were grocery shopping at a Rouse’s market located at 1345 Pass Road, Gulfport, Mississippi. While walking by a long “coffin” freezer that contained frozen seafood, Moore fell into a “split-leg” position. Although she did not see any water on the floor prior to her fall, a tiny puddle of water was observed in the area after her fall. Moore was taken by ambulance to the hospital where she was released a few hours later. The ambulance report stated that Moore had severe hip pain that “radiat[ed] down” her right leg, but she denied any “head, neck[,] or back pain.” The hospital’s report stated that in addition to hip pain, Moore had pain in her right upper arm and elbow, “low back pain,” and “[r]ight ankle pain.” Moore suffered only soft-tissue injuries; she did not have any fractures or require any surgery.

¶3. On March 14, 2011, Moore filed a negligence action against Rouse’s, alleging that the water on the floor constituted a dangerous condition and that the store should have been aware of the water’s presence. She sought damages for her medical expenses, compensatory damages, litigation costs, and court costs. A two-day jury trial began on October 6, 2015. Although Moore said that “you could see [water] coming out ... [of] that freezer,” she later acknowledged on cross-examination that, on the day of the accident, she did not recall seeing any water leaking from the freezer. Scott Neckels, the store manager, stated that he had inspected the store less than an hour before Moore fell, and that there was no water on the floor in that area. A “Manager’s Floor Inspection Record” was entered into evidence, showing that Neckels completed his full store inspection at 6:05 p.m.; Moore fell at approximately 6:30 p.m. Additionally, a “Floor Cleaning Record” indicated that Rouse’s maintenance personnel, Leo Lang, had “cleaned ... and [ensured] that all floor areas [were] free of spills, broken products, or any other hazard” at 6:11 p.m. Lang testified he saw no water on the floor at that time, and neither employee was aware of any water leaking from the freezer in question.

¶ 4. At the conclusion of Moore’s case-in-chief, Rouse’s moved for a directed verdict, asserting that: (1) Moore failed' to present “credible, reliable causation evidence ... outside of her lay opinion”; and (2) Moore failed to meet her burden of proof in establishing that Rouse’s .“caused the water to be on the floor” or had actual or constructive knowledge “that a potential hazard was on the floor at the time Mrs. Moore allegedly fell.” In a bench opinion, the trial court granted Rouse’s motion, finding that Moore “failed to establish a prima facie case for jury consideration.” The trial court further determined that the issue of causation was moot based on its holding. On October 9, 2015, the circuit court entered its order, granting Rouse’s motion for a directed verdict, as Moore failed to meet her burden of proof for the premises-liability claim, and dismissing Moore’s claim with prejudice.

¶ 5. Moore filed a motion for reconsideration of the ruling, which the trial court denied. On appeal, we find no error and affirm the judgment.

STANDARD OF REVIEW

¶6. “Á motion for [a] directed verdict tests the legal sufficiency of the plaintiffs evidence,” with the trial court considering “whether the evidence, as applied to the elements of a party’s case, is either so indisputable, or so deficient, that the necessity of a trier of fact has been obviated.” McGee v. River Region Med. Ctr., 59 So.3d 575, 578 (¶ 8) (Miss. 2011). In reviewing a court’s decision for a directed verdict, we “consider the evidence in the same light as the trial court.” Anderson v. B.H. Acquisition Inc., 771 So.2d 914, 917 (¶ 5) (Miss. 2000) (quoting Fulton v. Robinson Indus. Inc., 664 So.2d 170, 172 (Miss. 1995)). Therefore, our standard of review is de novo. Id.

ANALYSIS

¶7. Moore claims that the trial court erred in granting Rouse’s motion for a directed verdict, as the store’s cooler caused the wet condition that caused her to fall. It is undisputed that Moore was a business invitee of the store. “A landowner owes a business invitee a duty of reasonable care for the invitee’s safety.” Hudson v. Courtesy Motors Inc., 794 So.2d 999, 1003 (¶ 9) (Miss. 2001). “The duty owed by a premises owner to a business invitee is the ‘duty to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition.’ ” McSwain v. Sys. Energy Res. Inc., 97 So.3d 102, 107 (¶ 11) (Miss. Ct. App. 2012) (quoting Jones v. James Reeves Contractors Inc., 701 So.2d 774, 782 (Miss. 1997)). As this Court noted in Grammar v. Dollar, 911 So.2d 619, 624 (¶ 12) (Miss. Ct. App. 2005):

In order for an invitee to recover in a slip-and-fall case, the invitee must (1) show that some negligent act of the defendant caused his injury; or (2) show that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) show that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known of the dangerous condition.

(Citing Anderson, 771 So.2d at 918 (¶ 8)).

¶ 8. We agree with the trial court that Moore failed to provide “record evidence” that Rouse’s knew, or should have known, that water was present on the floor at the time of her fall, or that the dangerous condition existed for a sufficient time that Rouse’s should have had constructive knowledge of the condition. Moore acknowledged that she did not see any water leaking from the freezer. On cross-examination, she was asked the following:

Q. ... Do you have any personal knowledge as to how long the water may have been on the floor?
A. No, I don’t.
Q. Do you have any personal knowL edge that a Rouse’s employee caused that particular water to be on the floor prior to your alleged fall?
A. No, I don’t.
Q. You don’t know that if any Rouse’s employee knew it was on the floor prior to your alleged fall?
A. No.
Q. And you don’t know how long the water may have been on the floor prior to your alleged fall?
A. No, I don’t.

Although Mr. Moore insisted that he saw water seep from underneath the freezer after the fall, he also acknowledged he had no personal knowledge that Rouse’s knew any water was on the floor prior to his wife’s fall. Furthermore, Neckels and Lang each conducted a store-wide inspection less than one hour before Moore’s accident; neither saw any water on the floor in front of the freezer.

¶ 9. The trial judge also determined that evidence that, one of Rouse’s freezers had been repaired two days prior to the incident insufficient to establish that the freezer in question was leaking, stating “there’s never been any indication by Rouse’s that this freezer had leaked or was, leaking at the time.” Neckels testified that the repair invoice submitted by Moore did not involve the freezer Moore claims was leaking:

Q, The maintenance record regarding an end cap. Do you recall that testimony?
A. Yes, sir.
Q. Is this the end cap? Is this an end cap of this freezer?
A. No, sir.
Q. How far away would an end cap be from this freezer?
A. The seafood frozen end cap would be ten—ten feet away from there. The end cap on that one is the meat department end cap. That’s where ■ they keep their red meat. It’s in that. .Then there is a space, then there is an end cap for frozen food. So if that case was leaking, it would have to go across the walkway down that aisle to get there. .

¶10. Therefore, we affirm the circuit court’s judgment, granting Rouse’s motion for a directed verdict. Moore’s additional argument that medical-expert testimony is not required under the, law to prove causation is moot.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . The circuit court treated the motion as a Mississippi Rule of Civil Procedure 59(e) motion to alter or amend the judgment, as it was filed within ten days of the entry of the judgment.