author: BARNES, J.,

text:
    Gus Samuel CASPELICH Deceased, Doris Frazier, Appellant, v. Joyce C. Loew, Appellee.
    No. 2007-CA-01633-COA.
    Court of Appeals of Mississippi.
    April 14, 2009.
    Rehearing Denied Aug. 18, 2009.
    Certiorari Denied Dec. 3, 2009.

      Wayne L. Hengen, Biloxi, attorney for appellant.
    Martha Carson, Walter L. Nixon, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. This appeal involves a will contest and a contest over inter vivos gifts. Doris Frazier, the sister of the decedent Gus Caspelich, appeals the judgment of the Chancery Court of Harrison County, Second Judicial District. The chancery court ruled that the decedent’s will, which left his estate to Joyce Loew, was valid. The chancery court found that no confidential relationship existed between Gus and Joyce either at the time of the inter vivos gifts or at the time of the execution of the will. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Gus died on February 25, 2004, at the age of eighty-seven, in Harrison County, Mississippi. His third -wife of approximately forty years, Inez, predeceased him in June 2000. Gus had two grown sons from his marriage to his second wife, but he had been estranged from them for a long time. Testimony showed Gus took Inez’s death very hard, becoming deeply depressed.

¶ 3. Directly after Inez’s death, Gus’s sister, Doris, began managing his affairs. In July 2000, Doris accompanied Gus to the bank and had him open a checking account. She placed her name jointly on this checking account, in which only Gus’s money was deposited, and made it payable to her on his death. She also had Gus change the “pay on death” beneficiary on two certificates of deposit from a friend to her. During this time Doris, who lived close by, went to Gus’s house three to five times a week and assisted Gus in making sure he took his medicines and writing checks for his monthly bills. Doris also wanted Gus to execute a new will, and on August 21, 2000, she drove him to an attorney whom she had selected. In this will, Gus named Doris as his sole beneficiary. Doris testified that at this time, her relationship with her brother was good.

¶ 4. In August 2000, Gus became reacquainted with a friend, Joyce Loew, with whom he and his wife, Inez, had formerly socialized. Joyce, who was twenty-five years younger than Gus, lived and worked in Pensacola, Florida, and her longtime boyfriend had recently passed away in July. Gus and Joyce continued dating, visiting one another, and talking on the phone a great deal through the fall of 2000. Gus’s mental and physical condition improved, and he spent time at both his home in Biloxi and Joyce’s home in Pensacola. Eventually, Gus no longer needed Doris’s care. Gus and Joyce’s relationship upset Doris, and the siblings began to argue.

¶ 5. In January 2001, Gus asked Joyce to quit her job as a hostess/cashier in a restaurant and come to live with him in Mississippi. In return, he would pay for all of her household bills in Florida. Joyce agreed. Also at this time, Gus also made several changes in his finances. On January 19, 2001, Gus removed Doris’s name from his joint checking account and added Joyce’s, with right of survivorship. Joyce, however, testified she initially did not approve of this change, and she agreed to the change only after Gus made the ultimatum that if she refused to put her name on the account, he would find someone else, just to make sure that Doris’s name was not on any of his assets.

¶ 6. Gus also made the following changes to his finances in early 2001, without Joyce’s knowledge while she was in Florida: on January 22, 2001, Gus withdrew approximately $15,000 from a savings account; on January 23, 2001, he changed the beneficiaries on both of his certificates of deposit from Doris to Joyce; Gus found his own attorney who was recommended by a friend, and on January 24, 2001, he executed the will now contested, which named Joyce, not Doris, as his sole beneficiary. Joyce testified that she did not ask Gus to make the change. The attorney testified that Gus told him he was mad at his sister and wanted to leave his assets to someone else. A friend accompanied Gus to the attorney’s office. Gus brought with him a doctor’s statement written on a prescription pad from Doris’s physician, Dr. Paul Pavlov, stating that Gus was “of sound mind and able to manage his own affairs.” The will was executed, and the doctor’s statement attached. Finally, on January 26, 2001, Gus paid $11,788.05 to retire the mortgage on Joyce’s home in Florida.

¶ 7. The evidence shows Doris continued to sign checks to pay for Gus’s bills out of his checking account after January 2001, even though her name was taken off the account. The evidence also shows Joyce never used the joint checking account or any of Gus’s accounts with her name on them. Doris testified that Gus lied to her about giving his assets to Joyce. In March 2001, when Doris found out Gus had changed the names on his accounts from her to Joyce, she berated him about it and “disowned” him as her brother. Gus and Doris never reconciled.

¶ 8. During the next three years, the evidence shows Gus and Joyce were very much a couple and traveled together. Gus gave Joyce small gifts and roses on several occasions. Joyce testified that Gus bought her an engagement and a wedding ring, as they planned to be married, but they kept this fact private. In November 2001, Gus transferred title to his 1995 Lincoln to Joyce, because her vehicle was having problems. In January 2002, Gus executed a document which gave Joyce power of attorney; however, she never used it. In February 2002, Gus executed a written document at the attorney’s office where he had previously executed his will, stating that he did not want a funeral service. Instead, he wanted to be cremated and have Joyce spread his ashes in the woods. In September 2003, Gus transferred $50,000 from their joint checking account to an account in Joyce’s name. Gus had been living primarily in Florida with Joyce. In October 2003, Gus sold his home in Mississippi for $160,000 and placed $150,000 in a joint account with Joyce in Florida. In November 2003, he transferred title to a 2000 Lincoln to Joyce as well. Joyce maintained she had nothing to do with Gus’s business or financial decisions during this time.

¶ 9. A witness testified that in October 2003, Gus was not in good physical condition. It was difficult for Gus to get around, but he was not in a wheelchair. Gus passed away on February 25, 2004. Following Gus’s specific instructions, Joyce did not notify friends and family of his death.

¶ 10. Joyce filed, and the court granted, her petition to probate Gus’s will on February 27, 2004, in the Harrison County Chancery Court. In response, Doris petitioned to contest the will and the inter vivos gifts Gus had bestowed upon Joyce during their three-year relationship. Doris argued that Gus and Joyce were in a confidential relationship where Joyce dominated him. The chancery court granted Doris a temporary restraining order, freezing Gus’s accounts and assets. Also, the chancery court ordered Joyce to present an inventory of all gifts, property, and assets that Gus gave her, them value, and location. On April 1, 2004, the ehancery court granted Doris’s preliminary injunction, further enjoining Joyce from dissipating any assets she received as inter vivos from Gus.

¶ 11. A hearing on the issues was held on October 18-19, 2006, in the chancery court. All of the witnesses testified that Gus was an independent and colorful character. Gus was also generally characterized as opinionated and strong-willed. One of Gus’s friends testified that Gus was “very possessive” and “consumed” with Joyce early in their relationship. Another friend testified that Gus told him Joyce treated him “like a king.” Gus described Joyce to one of his friends as “a fine Christian woman who could be heard praying from one end of the house to the other.” Joyce testified that Doris and Gus were “enemies.” Gus’s friends claimed Gus became distant with them once he started dating Joyce, but he was obviously very fond of her.

¶ 12. Doris described her brother as a womanizer who was tight with his money and had a temper. Doris claimed she “disowned” Gus because she felt “used and abused”; she stated she had continued to take care of Gus and to pay his bills with the understanding she was sole beneficiary of his assets. She begged him not to give Joyce all of his money; instead, he lied to her about what he had done. Doris admitted, however, that Joyce never made Gus do anything he did not want to do. According to Doris, Gus’s health conditions included a pacemaker in his heart, problems with his knee, problems with his vision, diabetes, asbestosis, and high blood pressure. Joyce testified she was aware of these health issues, but she never helped Gus with his medication because “he was a good thinker all the way until the end.” Other witnesses corroborated Gus’s mental competence.

¶ 13. After Doris put on her case-in-chief, Joyce moved for an involuntary dismissal. The chancellor took the motion under advisement.

¶ 14. On January 23, 2007, Joyce filed a motion for sanctions, seeking payment of her attorneys’ fees by Doris as damages and other relief. Joyce claimed that “because [the chancery] court found” that Doris had offered no evidence of a confidential relationship between Joyce and Gus and no evidence of undue influence, this motion for attorneys’ fees was appropriate.

¶ 15. The following day, the chancellor entered a judgment granting involuntary dismissal pursuant to Mississippi Rule of Civil Procedure 41(b). In his nine-page opinion, the chancellor found that Doris had failed to carry her burden of proving that a confidential relationship existed between Joyce and Gus when he made the inter vivos gifts to Joyce or when he executed his will making Joyce his sole beneficiary (at any point prior to January 24, 2001). The chancellor found that “[i]n all of these events, Gus acted independently without influence from Joyce and while he was not dependent on Joyce.” The chancellor did find that a confidential relationship existed when Gus, toward the very end of his life, fell gravely ill, and Joyce cared for him. However, this was long after the inter vivos gifts and execution of the will. The chancellor concluded that:

there is nothing in the law of this State that this Court could find which would prevent a gentleman of any age from voluntarily bestowing upon his girlfriend/fianeé gifts of money and cars or naming her as the sole beneficiary of his Will. The Court finds that this case is nothing more than the sister of the deceased being incensed that her brother found love and happiness in his waning years with what ... appears to be an honorable woman who genuinely returned the love and affection of her boyfriend/fiancé, and who chose to leave his entire estate to her, rather than to his sister.

¶ 16. In response, Doris filed a motion to alter or amend the judgment. A hearing was held on the motion, and Joyce orally renewed her motion for sanctions and attorneys’ fees. The chancellor held the motion for sanctions in abeyance and never ruled on it. Doris’s motion to alter or amend the judgment was denied. Doris timely appealed, raising the following issues: (1) whether a confidential relationship existed between Joyce and Gus, (2) whether Joyce abused this confidential relationship, (3) whether the existence of a confidential relationship between Gus and Doris is relevant, and (4) whether disclosure of Joyce’s sister’s proffered testimony should be accepted by the court. Additionally, Joyce claims a “counter-appeal” on the issue of attorneys’ fees.

STANDARD OF REVIEW

¶ 17. In a will contest, the chancellor’s findings of fact will not be disturbed by this Court “unless they are manifestly wrong, or clearly erroneous, or unless the chancellor applied an erroneous legal standard.” Estate of Grantham v. Roberts, 609 So.2d 1220, 1223 (Miss.1992). This Court will consider the entire record before us and accept those facts and reasonable inferences which support the chancellor’s findings. Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993). “[T]he chancellor, being the only one to hear the testimony of witnesses and observe their demeanor, is to judge their credibility. He is best able to determine the veracity of their testimony, and this Court will not undermine the chancellor’s authority by replacing his judgment with its own.” Id. If the chancellor’s findings are supported by substantial, credible evidence, reversal is not warranted. Estate of Grubbs; Jacks v. Woods, 753 So.2d 1043, 1046(¶ 7) (Miss.2000).

DISCUSSION

I. Whether the chancellor erred in finding no confidential relationship existed between Joyce and Gus.

¶ 18. Doris argues on appeal that a confidential relationship existed between Joyce and Gus; therefore, a presumption of undue influence arises as to Gus’s inter vivos gifts to Joyce and, combined with Joyce’s abuse of the relationship, a presumption of undue influence arises as to Gus’s last will and testament.

¶ 19. The chancellor appropriately noted in his opinion that there are two issues in this matter: (1) the validity of Gus’s will leaving his entire estate to Joyce, and (2) the validity of the inter vivos gifts given by Gus to Joyce. In analyzing these issues, we must first determine if and when a confidential relationship arose, because the rules of law are different regarding gifts bequeathed by will and inter vivos gifts when a confidential relationship exists between the parties. Madden, 626 So.2d at 618. When the evidence shows a confidential relationship existed during the making of the will, a presumption of undue influence arises only when there has been some abuse of the confidential relationship, such as some involvement in the preparation or execution of the will. Id. Alternatively, when the evidence shows there is a confidential relationship at the time inter vivos gifts are made, “there is an automatic presumption of undue influence even without abuse of the confidential relationship. Such gifts are presumptively invalid.” Id. The burden shifts then to the one who wishes to uphold the gift to rebut the presumption by clear and convincing evidence. Id. at 619.

¶ 20. The Mississippi Supreme Court has described a confidential relationship as follows:

Whenever there is a relation between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character. The dependency factor was emphasized again when we stated, “In determining whether or not a fiduciary or confidential relationship existed between two persons, we have looked to see if one person depends upon another.”

Id. at 617 (internal citations omitted). The party seeking to establish a confidential relationship has the burden of proving such a relationship by clear and convincing evidence. Foster v. Ross, 804 So.2d 1018, 1023(¶ 15) (Miss.2002) (citing Whitworth v. Kines, 604 So.2d 225, 230 (Miss.1992)). The factors courts use to determine whether a confidential relationship exists are as follows:

(1) whether one person has to be taken care of by others, (2) whether one person maintains a close relationship with another, (3) whether one person is provided transportation and has their medical care provided for by another, (4) whether one person maintains joint accounts with another, (5) whether one is physically or mentally weak, (6) whether one is of advanced age or poor health, and (7) whether there exists a power of attorney between the one and another.

In re Estate of Dabney v. Hataway, 740 So.2d 915, 919(¶ 12) (Miss.1999).

¶ 21. In the chancellor’s August 21, 2007, order denying Doris’s motion to alter or amend the judgment, he went through the confidential relationship factors in detail, finding no confidential relationship existed between Gus and Joyce until near the end of Gus’s life. We find no error with his findings.

¶ 22. Pursuant to the Dabney factors, there was no evidence that Gus was physically incapacitated during the relevant time and had to be taken care of by others. While testimony showed Gus was depressed following the death of his wife in June 2000 and Doris cared for him around this time, there is no proof Gus could not take care of himself, and there is no proof Joyce took care of Gus. In fact, during the inception of their relationship, Gus and Joyce lived in different states.

¶ 23. Gus and Joyce maintained a close and loving relationship and later apparently had plans to marry. There is no evidence Gus was dependent on Joyce for transportation at this time. Joyce provided no medical care for Gus until the end of his life. Gus did maintain joint accounts with Joyce, but the circumstances indicate this was an independent act by Gus for the primary purpose of removing Doris from all of his assets after their falling-out, and leaving them to Joyce, whom he loved. Furthermore, Joyce objected to Gus’s financial actions that were to her benefit, and there was no evidence Joyce used these joint accounts to dominate Gus. In fact, there is no evidence Joyce ever used these accounts she shared with Gus. Finally, Gus made Joyce the beneficiary of his certificates of deposit, as well as the beneficiary of his estate, without her knowledge and while she was out of state.

¶ 24. As far as any mental and physical weakness, testimony shows Gus’s depression and health improved once he started seeing Joyce. Gus was portrayed by friends, and even his sister, as a willful, independent man who acted on his own. He was systematic and intentional in the removal of Doris from his business and financial affairs. There can be no doubt that Gus was of advanced years, being eighty-four years old, but his health was not particularly poor during the relevant time. Gus appeared to suffer only the common physical ailments of a person his age. A power of attorney did exist between Joyce and Gus, but it was executed in early 2002, and Joyce never utilized it.

¶ 25. Doris argues that the only testimony that determined Gus was not in a confidential relationship with Joyce was Joyce’s testimony, and unless corroborated, her testimony is of no consequence. She cites Madden in support, which states “when a court of equity is faced with a large gift to a dominant party by the weaker in a confidential relation, it must hear from someone besides the beneficiary, or receive clear and convincing evidence beyond that from the lips of the beneficiary, this is, in truth and in fact, what the donor wished to do on his own.” Madden, 626 So.2d at 625. However, Doris misapprehends this statement of law. It is referring to evidence presented by the beneficiary in order to rebut the presumption of undue influence once a confidential relationship has already been established. At any rate, we find, as the chancellor did, that Joyce’s testimony was consistent with the testimony of the other witnesses regarding Gus and Joyce’s relationship and the facts surrounding the execution of the will and the giving of the inter vivos gifts.

¶ 26. The chancellor concluded that Doris failed to meet her burden of proving by clear and convincing evidence that there was a confidential relationship between Gus and Joyce during the pertinent time frame. Having reviewed the record in detail, we cannot find the chancellor’s findings of fact are manifestly wrong or clearly erroneous. The couple was not dependent upon one another, and in all likelihood, Gus was the dominant member of the relationship, making his own decisions about his finances with a steadfast intent. There is no proof of a dominating influence by Joyce.

¶ 27. Since we find the chancellor correct in finding no confidential relationship existed at the relevant time, analysis of undue influence is unnecessary for both the execution of the will and the giving of the inter vivos gifts. We note the chancellor stated that even if there was a confidential relationship, there is no evidence indicating an abuse of that relationship, and we agree.

II. Whether the issue of a confidential relationship between Doris and Gus is material.

¶ 28. Doris complains that the chancellor based “much of his ruling” on findings of fact regarding the relationship between Gus and Doris; however, she states this is irrelevant to the contest of Gus’s will naming Joyce as his beneficiary, and this Court should not consider these findings. We agree with Doris that the issue is not whether there is a confidential relationship between Gus and Doris, but between Gus and Joyce. However, neither of the chancellor’s orders stated explicitly that there was a confidential relationship between Gus and Doris. Furthermore, at the hearing on the motion to reconsider, the chancellor even admitted that “I don’t think that Doris Frazier’s case was properly before the Court.” We note, however, that the testimony about the siblings’ relationship provides insight into the relationship between Gus and Joyce, and it tends to show that Gus was independent and could not be dominated by someone else.

III. Whether the proffered testimony of Geneva Gross at the chancery court hearing should be accepted as testimony.

¶29. Geneva Gross is Joyce’s sister. At the hearing before the chancellor on October 19, 2006, after Doris presented her case-in-chief and rested, Joyce moved for an involuntary dismissal. The chancellor took the motion under advisement instead of ruling on it from the bench and let Joyce present her witnesses who were already present in the courtroom. When Joyce’s counsel called her first witness to the stand-Gross-counsel for Doris objected because Joyce did not disclose Gross as a witness in discovery. The chancellor accepted Gross’s testimony in the form of a proffer only, stating he would decide whether it would be accepted as testimony later. Doris now requests this Court to decide if acceptance of this testimony may be sought by Joyce, if the case is remanded. As we are affirming the judgment in favor of Joyce, and this case will not be remanded, we find this issue is moot.

IV. Whether the chancellor erred in failing to award attorneys’ fees to Joyce.

¶ 30. Joyce raises what she calls a “counter-appeal” on the issue of her attorneys’ fees. On January 23, 2007, in the chancery court, Joyce filed a “Motion for Sanctions,” seeking damages against Doris and her attorney, one day before the chancellor entered his judgment. In her motion, Joyce stated that “[tjhis Court has found that Plaintiff offered no evidence of a confidential relationship” between Joyce and Gus at the relevant time, as well as no evidence of any undue influence. Joyce also argued that Mississippi Code Annotated section 11-55-5(1) (Rev.2002), Mississippi Rule of Civil Procedure 11(b), and case law, provide that attorneys’ fees may be awarded where a party’s conduct would justify an award of punitive damages, even if such damages were not actually awarded. Section 11-55-5(1) provides in part that:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorney’s fees and costs against any party or attorney if the court, upon the motion of any party or on its own motion, finds that an attorney or party brought an action, or asserted any claim or defense, that is without substantial justification....

Mississippi Rule of Civil Procedure 11(b) provides for sanctions for the filing of frivolous pleadings or motions, and the court may order the opposing party to pay “reasonable attorneys’ fees.”

¶ 31. Joyce argues that since the chancery court found that Doris offered no evidence of a confidential relationship between Joyce and Gus, and there was no evidence of undue influence, Doris should pay the $15,000 in attorneys’ fees she had incurred to defend herself. Oddly, this statement was not accurate at the time Joyce filed her motion because the finding of no confidential relationship was not made until the chancellor’s order of January 24, the day after Joyce filed her motion for sanctions.

¶ 32. Joyce argues on appeal that the chancellor “has consistently refused to rule” on this motion, and she now requests this Court to award her attorneys’ fees. We note that the matter was brought to the court’s attention at the June 18, 2007, hearing on Doris’s motion to amend or alter the judgment. Counsel for both sides presented brief arguments on the issue. In response to the motion for sanctions, counsel for Doris contended that the motion was not proper at that time as the motion for reconsideration of the merits was still pending. The chancellor then responded that he would hold the matter in abeyance. We find no evidence, however, that the chancellor refused to rule on the motion.

¶ 33. For cross-appeals, Mississippi Rule of Appellate Procedure 4(a) requires that a notice of appeal be filed with the clerk of the trial court. The comment to Rule 4(c) explains a notice of appeal is required for cross-appeals and should be filed within fourteen days after the date of the first notice of appeal, unless a longer period is allowed by another provision of Rule 4. We find no notice of appeal filed by Joyce in the record for her “counter-appeal”; therefore, this issue is not properly before this Court. Moreover, once the chancellor held the matter in abeyance, the record does not reflect that Joyce raised the motion for sanctions again until her appellate brief. Doris did not file her notice of appeal until twenty-eight days after entry of the final judgment. At any time in the interim, Joyce could have requested a ruling on her motion for sanctions, but she failed to do so. It is the movant’s duty “to pursue the motion to hearing and decision by the court.” Carrow v. Carrow, 741 So.2d 200, 204(¶ 27) (Miss.1999). Accordingly, we find that, even if the matter were properly before us, Joyce’s motion for sanctions and attorneys’ fees was waived.

CONCLUSION

¶ 34. The chancellor did not err in finding no confidential relationship existed between Gus and Joyce during the time of the execution of his will or when he gave Joyce inter vivos gifts. Therefore, we affirm the chancellor’s judgment.

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

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

      . Before his wife's death, in February 2000, Gus placed $125,000 in a certificate of deposit payable on death to his longtime friend, Wayne Moore. In March 2000, Gus placed $25,000 in a certificate of deposit payable to Moore as well.

      . To the extent there is a gap in the time frame in the chancellor's ruling regarding a confidential relationship between the execution of the will in January 2001, when there was no confidential relationship, and the time around Gus’s death in 2004, when there was a confidential relationship, we find it makes no difference to the outcome of this litigation. Since the chancellor found the will valid, the inter vivos gifts made to Joyce in 2003, even if found invalid due to a confidential relationship, would merely return to Gus’s estate and be inherited by Joyce as testamentary gifts.

      . However, testimony shows Joyce was in slate when her name was added to the joint checking account.

      . Counsel for Doris responded, “This is way premature. I’m here asking you to change your Judgment based upon six of seven factors saying that there is a confidential relationship in the face of your ruling that said there wasn’t one.... When that's done, and you still don't agree with me, then maybe this motion is in proper order. But it’s not in proper order now.”


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the LAST WILL AND TESTAMENT and Estate of Genevieve KISTLER, Deceased: John E. Hawkins, Appellant, v. Charles M. Hawkins, Individually and as Executor of the Estate of Genevieve Kistler, Appellee.
    No. 2007-CA-01230-COA.
    Court of Appeals of Mississippi.
    April 28, 2009.
    Rehearing Denied Aug. 18, 2009.
    Certiorari Denied Dec. 3, 2009.

      Carter Dobbs, attorney for appellant.
    Ann Odom, attorney for appellee.
    Before LEE, P.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. This is an appeal from the Monroe County Chancery Court’s dismissal of a petition to contest a will and of a complaint for fraudulent conveyances, for removal of the executor, and for appointment of an administrator C.T.A. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. This case involves a dispute between two brothers, John Hawkins and Charles Hawkins, over then’ deceased mother’s last will and testament. The mother, Genevieve Kistler (Kistler), abandoned her husband and sons in 1938. Kistler, along with her second husband, returned to Aberdeen, Mississippi in 1979. John, who lived nearby, began to develop a relationship with his mother. Charles, who had been living in Texas, moved back to Aberdeen in 1985 and also lived near Kistler. Charles started to establish a close relationship with his mother. After Mr. Kistler died in 1995, John’s relationship with his mother began to deteriorate. Although both men lived close to Kistler, she began to depend on Charles and his wife, Florence Hawkins, to assist her with her activities of daily living, such as shopping, paying bills, and transportation.

¶ 3. Immediately after Mr. Kistler’s death, Florence was placed as joint tenant on Kistler’s checking and savings accounts. In 2001, Kistler executed a power of attorney, naming Florence as her attorney-in-fact. In April 2002, Charles’s and Florence’s names were also placed on Kistler’s $100,000 certificate of deposit as joint tenants, with rights of survivorship. In addition, Kistler removed John’s name from her safety-deposit box access card, without his knowledge, and added Florence’s name.

¶ 4. Kistler executed a will on April 29, 2002, which left the bulk of her estate to Charles. Kistler had previously executed three wills; their dates being September 15, 1981, November 17, 1986, and May 29, 2001. All of the previous wills left her estate as follows: one-fourth to John, one-fourth to Charles, one-fourth to Kistler’s daughter, Jean Lembeke (or her children), and one-fourth to the children of Cliff Kist-ler, another son who had predeceased Kistler. These wills were prepared by attorney Mike Jonas. However, the 2002 will was prepared by Julian Fagan, an attorney and part-time preacher at her church. The only other specific bequest in the 2002 will was her savings account, which like the certificate of deposit and checking account, was set up as a joint tenancy with rights of survivorship with Florence. Kistler designated the bequest of her savings account: one-third to John, one-third to Jean’s children, and one-third to Cliffs children. The will also provided that any devisee protesting the will should only receive the sum of one dollar.

¶ 5. Kistler died on January 31, 2004. Charles probated the April 29, 2002, will on February 23, 2004, and was appointed executor. John filed a petition for contest of the will claiming that the will was void based upon undue influence by Charles and Florence. The trial court entered an order on September 16, 2005, requiring Charles to respond to John’s discovery request within ten days; Charles complied with the order. On October 21, 2005, however, John filed a motion to compel a response to the requests for production of documents, alleging that Charles had failed to organize or label any discovery, in violation of Rule 34 of the Mississippi Rules of Civil Procedure. On November 2, 2005, three days prior to trial, Charles delivered his discovery responses, revealing that Kistler had established co-ownership of the $100,000 certificate of deposit with Charles. Due to this new information, John filed a motion for continuance and a motion for leave to amend his petition to include a complaint to set aside fraudulent conveyances and to add an additional party. The chancellor granted the continuance and set a new trial date for February 24, 2006. The chancellor also ordered Charles to pay court costs and John’s attorney’s fees. On December 12, 2005, the chancellor granted John’s motion for leave to amend the petition to include a complaint to set aside fraudulent conveyances and to add an additional party.

¶ 6. On December 16, 2005, Charles and his wife, Florence, were deposed; in their depositions they revealed that their names had been placed on Kistler’s checking and savings accounts. They further revealed that Kistler had transferred other cash funds, as well as an automobile, to Charles.

¶ 7. On January 16, 2006, John filed a “Complaint to Set Aside Fraudulent Conveyances, For Accounting, For Removal of Executor and Appointment of Administrator Cum Testamento Annexo De Bonis Non (C.T.A.).” Charles, Florence, and their daughter, Rose Mary Goff, were named as defendants.

¶ 8. On February 6-7, 2007, a trial was held, and the chancellor found the April 29, 2002, will to be valid. On February 21, 2007, the chancellor dismissed John’s petition for contest of the will and his complaint for fraudulent conveyances, for removal of the executor and for appointment of an administrator C.T.A. On March 2, 2007, John filed a motion for reconsideration or, in the alternative, for a new trial. At the hearing on the motion held on June 5, 2007, the chancellor overruled John’s motion, and the chancellor’s order was entered on June 19, 2007. John filed a timely notice of appeal.

STANDARD OF REVIEW AND INTRODUCTION

¶ 9. A chancellor’s findings of fact will not be disturbed “on appeal unless those findings are ‘manifestly wrong, clearly erroneous, or not supported by substantial credible evidence.’ ” Brown v. Ainsworth, 943 So.2d 757, 760(¶ 5) (Miss.Ct.App.2006) (citations omitted). “While we give deference to a chancellor’s determination of fact, we review the chancellor’s determinations of law de novo.” Id. (quoting City of Picayune v. S. Reg’l Corp., 916 So.2d 510, 519(¶ 23) (Miss.2005)).

¶ 10. A contestant of a will bears the burden of “proving the existence of a confidential relationship.” Dean v. Kavanaugh, 920 So.2d 528, 533(¶ 21) (Miss.Ct.App.2006) (citation omitted). A court’s determination of whether a confidential relationship exists depends on consideration of the following factors:

(1) whether one person has to be taken care of by another; (2) whether one person maintains a close relationship ■with another; (3) whether one person is provided transportation and has their medical care provided for by another; (4) whether one person maintains a joint account with another; (5) whether one is physically or mentally weak; (6) whether one is of advanced age or poor health; and (7) whether there exists a power of attorney between the one and [ ] another.

Id. In the present case, the chancellor found sufficient factors were present to establish that a confidential fiduciary relationship existed between Charles and Kist-ler. Neither party challenges this finding on appeal.

¶ 11. The mere existence of a confidential relationship between a testator and a beneficiary under the will does not automatically raise a presumption that the beneficiary exercised undue influence over the testator. Croft v. Alder, 237 Miss. 713, 723, 115 So.2d 683, 686 (1959). “[T]he existence of a confidential or fiduciary relationship, coupled with a showing of ‘suspicious circumstances’ such as the fact that a beneficiary or person who benefits by the will took part in the execution or preparation of the will, gives rise to a presumption of undue influence.” In re Will of Carter v. Moody, 948 So.2d 455, 458(¶ 10) (Miss.Ct.App.2007) (quoting Estate of Lawler v. Weston, 451 So.2d 739, 741 (Miss.1984)) (emphasis added). In Croft, the supreme court explained that:

[S]uch consequence follows where the beneficiary “has been actively concerned in some way with the preparation or execution of the will, or where the relationship is coupled with some suspicious circumstances, such as mental infirmity of the testator;” or where the beneficiary in the confidential relationship] was active directly in preparing the will or procuring its execution, and obtained under it a substantial benefit.

Croft, 237 Miss. at 723-24, 115 So.2d at 686 (citation omitted) (emphasis added). “In other words, there must be some showing that the beneficiary abused the relationship either by asserting dominance over the testator or by substituting [his] intent for that of the testator.” In re Estate of Sandlin v. Sandlin, 790 So.2d 850, 854(¶ 9) (Miss.Ct.App.2001) (citations omitted).

¶ 12. In Murray v. Laird, 446 So.2d 575, 578 (Miss.1984), the supreme court stated that:

[W]hen the circumstances give rise to a presumption of undue influence, then the burden of going forward with the proof shifts to the grantee/beneficiary to prove by clear and convincing evidence of (1) [g]ood faith on the part of the grantee/beneficiary; (2) [gjrantor’s full knowledge and deliberation of his actions and their consequences; and (3) [а]dviee of (a) competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator’s interest.

This third factor in Murray has been redefined to mean “that the grantee/beneficiary prove by clear and convincing evidence that the grantor/testator exhibited independent consent and action.” In re Estate of Holmes v. Holmes-Price, 961 So.2d 674, 680(¶ 18) (Miss.2007) (citing Mullins v. Ratcliff, 515 So.2d 1183, 1193 (Miss.1987)).

¶ 13. At trial, the chancellor’s findings were vague as to whether John was able to establish the second prong that would give rise to a presumption of undue influence. However, as neither party specifically addressed this particular issue in his closing argument, we find it understandable why the chancellor’s ruling focused more on the third prong of the test. However, counsel for John did concentrate the majority of his motion for reconsideration on the issue of whether the presumption for undue influence was raised. He stated that: “And it was, as I understood your Honor’s ruling, it was the second prong of this two-part test that your Hon- or ruled that — that the contestant, my client, had not met.” While the chancellor still did not clarify whether he had found no presumption of undue influence or whether such presumption was rebutted, he did find “undue influence in the will was not there.” In instances where a chancellor makes no specific findings on a fact issue, “we are required by our prior decisions and by sound institutional considerations to assume that the chancellor resolved all such fact issues in favor of ap-pellee.” Wilburn v. Wilburn, 991 So.2d 1185, 1193(¶ 19) (Miss.2008). “Where the record contains substantial credible evidence to support the chancellor’s findings, we will defer to them.” In re Estate of Volmer v. Volmer, 832 So.2d 615, 622(¶ 21) (Miss.Ct.App.2002) (citing Suess v. Suess, 718 So.2d 1126, 1130(¶ 15) (Miss.Ct.App.1998)). As discussed below, we find sufficient evidence to support either a finding of no presumption of undue influence or that the presumption was rebutted by clear and convincing evidence and, therefore, affirm the chancellor’s decision.

I. Whether the chancellor erred in determining that John failed to establish any “suspicious circumstances” sufficient to create a presumption of undue influence.

¶ 14. John claims that the chancellor ruled that a finding of undue influence under Mississippi law required: (1) Charles to have occupied a confidential relationship with Kistler, and (2) Charles to have been actively concerned in some way with the preparation or execution of Kistler’s will. John argues that the applicable law, as it pertains to a finding of undue influence, is broader than this interpretation and claims that a finding of “suspicious circumstances” should not be limited only to the preparation and execution of the will, but to events that occurred antecedent to the will.

¶ 15. We observe that the chancellor cited the language in Croft, stating that:

In the case of Croft v. Alder ... the Court has said this, that inter vivos gifts such as deeds may be deemed presumably void merely by a finding of the Court that a confidential relationship existed between the donor and the donee. It said that the burden then shifts to the donee to rebut the presumption by clear and convincing evidence.... In the context of bequest by the will there is additional requirement that the beneficiary in the confidentiality [sic] relation has been [actively] concerned in someway with the preparation or execution of the will. That is the existence of a confidential relationship or fiduciary relationship coupled with a showing of suspicious circumstances, such as the fact that a beneficiary or person who benefits by the will took part in the execution of or the preparation of the will, it gives the presumption of undue influence.

(Emphasis added). While the chancellor and counsel for both parties, at trial, failed to demonstrate specific findings as to the existence of suspicious circumstances, detailed arguments were presented in the motion for reconsideration as to John’s position regarding the existence of suspicious circumstances, other than the incidents surrounding the execution of the will. Despite such arguments, the chancellor maintained his finding that no undue influence existed. To the extent the chancellor’s ruling is based upon a finding of no “suspicious circumstances,” we affirm.

¶ 16. As to the issue of participation in the drafting of the will, it was noted at trial that Charles and Florence did take Kistler to Fagan’s law office, although it was unclear who set up the appointment. The fact that they drove Kist-ler to the attorney was not unusual due to the fact that Kistler did not drive, and testimony showed that Charles and Florence drove her everywhere. No evidence was presented that Charles or Florence participated in the drafting of the will. Fagan was not Charles’s or Florence’s attorney; Kistler decided that she wanted to use Fagan after hearing him preach at her church. In addition, Fagan testified that no one else was present in the room when he met with Kistler regarding her 2002 will. Although Florence paid Fagan for the preparation of the will, it was from Kistler’s account, and Kistler was present when she did so. Therefore, we find that the record supports a finding that there was no evidence of participation on the part of Charles and Florence in the execution or preparation of Kistler’s will.

¶ 17. John argues that participation on the part of a beneficiary in the making and execution of a will is only one factor in determining “suspicious circumstances.” He contends that the antecedent changes to Kistler’s finances, along with significant changes to the beneficiaries in the 2002 will, should also be considered and are clear evidence of undue influence. John specifically points to the addition of Florence as a joint tenant on Kistler’s accounts, as well as the transfer of money and assets which have been noted above, all of which were done without John’s knowledge. He also questions why Kistler essentially “disinherited” her grandchildren, whom she had provided for in previous wills.

¶ 18. John maintains that Charles and Florence isolated Kistler from the rest of the family and that this fact raises a presumption of undue influence. John argues that when he and other family members would call her to go somewhere, she would insist on checking with Charles and Florence first. However, the testimony also showed that John began to be too involved in his own family matters to care consistently for his mother and that his mother felt that their relationship was strained due to her abandonment of John when he was young. The chancellor observed in his findings that he “could tell from the testimony that John still had some animosity toward [Kistler,]” and the chancellor was sure that John’s “animosity came out when he discussed [the abandonment] with his mother a few times.” Fagan specifically noted that Kistler told him that John had not made any effort toward their relationship and that was the reason she was making the changes to her will. Charles and Florence took care of Kistler for approximately nineteen years, providing her with assistance and guidance in daily matters. They devoted a tremendous amount of time and effort to their relationship with Kistler, and according to Fagan’s testimony, Kistler was merely attempting to give them the benefit of that devotion. Kistler clearly felt more comfortable letting Charles and Florence be her main source of family support, and the will reflected her gratitude.

¶ 19. Although changes to a will might be considered unnatural, “this is not the proper basis for a finding of undue influence.” Smith v. Averill (In re Will of Smith), 722 So.2d 606, 612(¶ 20) (Miss.1998) (citing Wallace v. Harrison, 218 Miss. 153, 163, 65 So.2d 456, 459 (1953)). Charles’s and Florence’s access to Kistler’s finances were not unusual or suspicious. Kistler was more than seventy years old when Charles moved back to Mississippi, and it is understandable that someone of her advanced age would have someone she trusted to help her pay her expenses of daily living and to have the ability to take care of her in the event that sickness rendered her incapable of taking care of herself.

¶ 20. Despite the fact that the chancellor’s ruling was imprecise as to whether there was sufficient evidence to shift the burden based on a presumption of undue influence, we conclude, as did counsel for John at the motion for reconsideration hearing, that the chancellor likely found no evidence of suspicious circumstances to raise this presumption. The conclusion that there was no evidence of suspicious circumstances is not manifestly wrong and is supported by substantial credible evidence. This issue is without merit.

II. Based on a finding of “suspicious circumstances,” whether the presumption of undue influence on the part of Charles was overcome by clear and convincing evidence.

¶ 21. Alternatively, based on a presumptive shifting of the burden of undue influence, John contends that some of the chancellor’s remarks — that it was a “fairly close case” and “I just don’t think the burden of undue influence has been met, I truly don’t.” — indicates that Charles failed to prove a lack of undue influence by clear and convincing evidence. Although John argues that the chancellor failed to establish that Charles had the burden of proving a lack of undue influence by clear and convincing evidence, we disagree. The chancellor noted that:

It was for Charles and them to overcome, the burden is placed upon them. Has that presumption been rebutted by clear and convincing evidence?

(Emphasis added). Therefore, as the chancellor properly applied the third-prong factors under Murray, we affirm his findings.

¶22. The chancellor found that there was “no hard evidence” to suggest that Charles and Florence did not act in good faith. Charles and Florence provided frequent transportation for Kistler and assisted her in paying her bills, which was the reason for their receiving signature authority on Kistler’s accounts. While we acknowledge that Kistler gave Charles financial gifts, there was no evidence presented that either Charles or Florence misused Kistler’s funds in any way; nor do we find testimony which showed any involvement on the part of Charles and Florence that could be perceived as controlling Kistler’s actions. They also testified that they had no specific knowledge of Kistler’s bequests under the will, except to say that Kistler warned Charles after she left Fa-gan’s office that John would probably “make a stink” about the will.

¶ 23. While John testified that his mother had very little education and “could barely read and write,” Fagan stated that Kistler was aware of what her assets were and appeared to be in complete control of her faculties on the two occasions that she met with him. This Court finds the bequest of the savings account that Kistler held in joint tenancy with Florence, which was to be distributed to the other heirs, to be the most troubling aspect of the will. A will written subsequent to the creation of a joint tenancy, which divests the “funds to some other source[,].... does not destroy the joint tenancy and does not terminate that tenancy and divest the corpus of it into the estate of the testator.” In re Will and Estate of Strange, 548 So.2d 1323, 1328 (Miss.1989). Kistler may have intended the funds be distributed as provided in her will, but under Mississippi law, Florence became the sole owner of the savings account after Kistler’s death. Fagan stated that he discussed Kistler’s various accounts with her, although he could not state with specificity which accounts they discussed or whether he discussed the issue of joint tenancy with her. However, when asked whether he thought Kistler understood that Florence would have ownership of the savings account, Fagan stated:

I think what — you are asking is in regard to the — the legality of joint ownership, and I have seen it go both ways in the contest of it. But in my discussions with — my concern was that Mrs. Kistler understands what she wanted to do, understands the ramification of it, and make her choice in light of those. And in discussing this issue with her, she did understand about the legal ownership. She also was convinced that the person who was the joint tenant, my recollection was Florence, was a person who would not take that money as her own but would use those funds in accordance with what she had set forth in the will.

¶ 24. The will directed that any debts, including those related to Kistler’s last illness and burial, along with expenses related to the administration of Kistler’s estate, were to be paid out of the savings account. The savings account in question contained $22,835.53 on December 25, 2003, approximately one month prior to Kistler’s death. Although we cannot be certain whether Kistler completely understood the implication of the joint ownership of the savings account, we find that this question is insufficient to set aside the will based on the specific circumstances of this case. Had the account contained a more substantial portion of the estate, we might have been inclined to find that a more serious consideration of the status of this account should be conducted. We note that the bulk of Kistler’s estate, i.e., the $100,000 certificate of deposit, was distributed inter vivos. However, at the time the will was executed, evidence showed Kistler understood that there was a likelihood there might be no residual funds remaining for those beneficiaries named in relation to the savings account. Accordingly, while we agree with the chancellor that there was a question whether Kistler fully appreciated the legal status of this account, we find that there was sufficient evidence to support the chancellor’s conclusion that Kistler “knew what she was doing and knew what she wanted to do.”

¶ 25. Charles also presented ample evidence, including the testimony of two disinterested witnesses, to show that Kistler was increasingly upset over her deteriorating relationship with John. See Holmes-Pickett, 961 So.2d at 681(¶ 19) (in order to rebut a presumption of undue influence, there must be “other substantial evidence, either from the circumstances, or from a totally disinterested witness from which the court can conclude that the transfer instrument represented the true, untam-pered, genuine interest of the grantor”); see also In re Estate of Edwards, 520 So.2d 1370, 1373 (Miss.1988) (“the testimony of subscribing witnesses is entitled to greater weight than the testimony of witnesses who were not present at the time of the will’s execution or did not see the testator on the day of the will’s execution”). John’s wife, Alice, even testified that Charles encouraged John to develop a better relationship with his mother, disputing John’s claim that Charles was trying to keep him from spending time with her. In spite of the testimony by John’s children that Kistler needed someone to write checks for her and that she had never managed her finances independently, we find that the evidence showed that Kistler understood what she was signing, and that she had knowledge of her bills or assets. Charles testified that his mother was “sharp,” and Fagan stated that Kistler was aware of her assets and the value of her estate.

¶ 26. As to the third factor, Kistler received legal guidance from Fagan, the attorney who Kistler specifically requested after she heard him preach in her church. The testimony showed that Fagan was a disinterested party who rendered competent legal advice to Kistler regarding her last will without any influence on the part of Charles or Florence; therefore, we agree with the chancellor’s findings of good faith on the part of the beneficiaries and that Kistler received independent knowledge and counsel from someone who was solely devoted to her interests and not those of the beneficiaries.

¶ 27. Assuming that there was a presumption of undue influence, we find that Charles met his burden proving no undue influence by clear and convincing evidence and find no merit to this issue.

III. Whether John’s complaint to set aside fraudulent conveyances should be sustained and judgment entered for John or, in the alternative, whether the complaint to set aside fraudulent conveyances should be remanded for a new trial.

¶ 28. John also claims that the money and automobile conveyances by Kistler to Charles and Florence should be set aside as fraudulent conveyances. However, John does admit in his brief that should this Court find no error in the chancellor’s opinion, this issue is moot as Charles would receive the property at issue under the terms of the April 29, 2002, will. We agree, and as we have found no error in the chancellor’s findings regarding the will, we find that this issue is moot.

IV. Whether the chancellor erred in dismissing John’s motion for reconsideration or, in the alternative, for a new trial.

¶ 29. Again, John claims that Charles’s failure to overcome the burden of undue influence by clear and convincing evidence warrants the remand of this case for a new trial. “A petition for reconsideration is treated as a motion to amend judgment pursuant to M.R.C.P. 59(e).” Boyles v. Schlumberger Tech. Corp., 792 So.2d 262, 265(¶ 6) (Miss.2001) (quoting In re Estate of Stewart, 732 So.2d 255, 257(¶ 8) (Miss.1999)). “[I]n order to succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004) (citation omitted). This Court reviews the denial of a Rule 59(e) motion for abuse of discretion. Id.

¶ 30. As we have already found that Charles overcame any presumption of undue influence by clear and convincing evidence, and as John has failed to demonstrate by way of evidence that the chancellor abused his discretion in dismissing John’s motion for reconsideration or his motion for a new trial, we affirm the chancellor’s dismissal of John’s motion.

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

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

      . Kistler also had another will drafted in 1999, but the record does not reflect that she ever executed it.

      . The 1999 draft and May 2001 will also contained this provision.

      . In September 1997, Kistler gave her deceased husband's automobile to Charles, which he sold for $6,000. On March 6, 2001, Kistler transferred $10,000 to Charles’s checking account as a gift to help him buy a new car.

      . This is distinguished from inter vivos gifts where the presumption of undue influence automatically arises based on a finding of a confidential relationship. Croft, 237 Miss. at 726, 115 So.2d at 687-88.

      . We note that the only "suspicious circumstances” actually referenced in Croft — besides circumstances surrounding the preparation and execution of the will — is the "mental infirmity of the testator.” John has made no claim before this Court that Kistler suffered any such infirmity.

      . As of June 26, 2005, Kistler's savings account contained only $7,828.54, which reflected withdrawals for debts as directed by the will (i.e., expenses for administration of the estate including attorneys' fees) and credit for interest earned.


author: GRIFFIS, J., ISHEE, J.,

text:
    Charlene ROGERS, Administratrix of the Estate of Robert Gary Rogers, Deceased, and Jennifer Ann Rogers, By and Through her mother and next friend, Charlene Rogers and Charlene Rogers, Individually Appellants, v. BARLOW EDDY JENKINS P.A. and Hugh Blair, Appellees.
    No. 2008-CA-00102-COA.
    Court of Appeals of Mississippi.
    July 28, 2009.

      Margaret P. Ellis, James W. Kitchens, Jackson, attorneys for appellants.
    Richard M. Edmonson, Jackson, D. Drew Malone, attorneys for appellees.
   GRIFFIS, J.,

for the Court.

¶ 1. On January 13, 2001, Robert Gary Rogers (“Rogers”) died as a result of injuries he suffered after falling from a wall-mounted ladder. A wrongful-death action was filed by Charlene Rogers, as adminis-tratrix of her late husband’s estate and individually, and by Jennifer Ann Rogers, by and through her mother and next friend, Charlene Rogers (collectively “Appellants”), against architects Barlow Eddy Jenkins, P.A. (“Barlow Eddy”) and Hugh Blair (“Blair”). The circuit court granted summary judgment in favor of Barlow Eddy upon determining that no genuine issue of material fact existed. The Appellants timely filed this appeal, asserting that the circuit court’s ruling was in error, and that there is a genuine issue of material fact regarding whether or not the architects’ negligence contributed to the cause of Rogers’s death. Finding no error, we affirm.

FACTS

¶ 2. In 1996, Barlow Eddy was awarded a contract by the Hinds County Board of Supervisors to act as the design professional for the Youth Detention Center Construction Project, and Blair was named as the project representative. Hinds County also chose Major/Yates Joint Venture (“Major/Yates”) to be the general contractor for the project. In May 1999, Major/Yates entered into a subcontract with Independent Roofing, where Rogers was employed as a supervisor, to install the Center’s roof.

¶ 3. The Center opened on January 2, 2001, and the following day, it reported a possible leak in the roof. Independent Roofing sent five or six people to the Center for an inspection. The workers accessed the roof by using an interior steel wall-mounted ladder in the Center’s mechanical room that had been fabricated by Ellis Steel and erected by MajorYates. As Rogers was climbing the ladder, he fell. He was transported to the University of Mississippi Medical Center (“UMMC”), where he remained until he died on January 13, 2001.

¶ 4. The only eyewitness to the accident was Elbert Martin, the Center’s maintenance supervisor, who climbed the ladder immediately before Rogers. Martin said that he saw Rogers’s head appear at the roof hatch, but then it disappeared. Realizing that Rogers was about to fall off of the ladder, Martin tried to reach down and grab him, but he was unable to prevent Rogers from falling. Martin did not know what caused the incident.

¶ 5. Following the accident, the Occupational Safety and Health Administration (“OSHA”) performed an inspection at the site and found that the ladder from which Rogers had fallen did not meet OSHA’s specified dimensions. The Appellants point out that Barlow Eddy had been contracted to draw the plans for the Center and that Barlow Eddy was responsible for the design, construction, and placement of the wall-mounted ladder. The Appellants argue that OSHA’s regulations should have placed Barlow Eddy on notice that the ladder was defective and dangerous due to the way it had been installed, designed, and constructed. They claim that the dimensional defects of the ladder and the placement of the ladder near the back wall caused Rogers’s injuries and ultimate death. They presented two expert witnesses who testified during depositions that the design and construction of the ladder made it difficult to climb and did not meet OSHA’s standards in that: (1) the width of the ladder — the spacing between the vertical bars — was too narrow, and (2) there was not enough space between the ladder and the wall to which it was secured.

¶ 6. The Appellants originally filed this action for personal injuries and wrongful death against Barlow Eddy, Blair, Ma-jorYates, and Ellis Steel. They also filed suit against UMMC for wrongful death in a separate action, which was later consolidated with this suit. All of the abovemen-tioned defendants except for Barlow Eddy and Blair settled and were dismissed.

¶ 7. Barlow Eddy filed two motions with the circuit court: (1) a motion for summary judgment (a) to dismiss the wrongful-death allegations inasmuch as there was also pending a wrongful-death claim against UMMC (election of remedies defense) and (b) to dismiss the claim of negligence for insufficient proof of causation and (2) a motion in limine to prevent the Appellants’ experts from testifying that the failure to follow OSHA’s guidelines amounted to negligence. Barlow Eddy withdrew part of the motion after the Appellants settled their wrongful-death claim against UMMC and dismissed the case against UMMC.

¶ 8. The Appellants offered the expert testimonies of an architect, Neil Hall, Ph. D., and a mechanical engineer, Jeffrey R. Shenefelt, Ph.D., in an effort to establish causation. The circuit court, however, found the expert witnesses’ testimonies to be insufficient and found, as a matter of fact and law, that there was no genuine issue of material fact to demonstrate that Barlow Eddy was negligent or that their alleged negligence was a proximate cause or a proximate contributing cause of Rogers’s accident, injuries, and/or death. As a result, the circuit court held that Barlow Eddy was entitled to summary judgment, and the complaint against Barlow Eddy and Blair was dismissed with prejudice.

STANDARD OF REVIEW

¶ 9. In order to determine if the circuit court properly granted a motion for summary judgment, this Court conducts a de novo review of the record. Bailey v. Wheatley Estates Corp., 829 So.2d 1278, 1282(¶ 16) (Miss.Ct.App.2002). Pursuant to Rule 56(c) of the Mississippi Rules of Civil Procedure, summary judgment is properly granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to summary judgment as a matter of law.” The moving party bears the burden of proving that no genuine issue of material fact exists, and the evidence is reviewed in the light most favorable to the nonmoving party. Johnson v. Johnson, 822 So.2d 1067, 1069(116) (Miss.Ct.App.2002). The circuit court is not permitted to try the issues; the court “may only determine whether there are issues to be tried.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 795 (Miss.1995) (citation omitted). Unless the court finds beyond a reasonable doubt that the plaintiff would not be able to prove any genuine issue of material fact to support his or her claim, a motion for summary judgment should be denied. Id.

ANALYSIS

¶ 10. The Appellants assert that the circuit court erred in granting Barlow Eddy’s motion for summary judgment because it placed a higher burden on the Appellants than should have been required. Barlow Eddy, on the other hand, contends that the Appellants failed to create a genuine issue of material fact as to causation.

¶ 11. A claim of negligence requires the plaintiff to “prove by a preponderance of the evidence (1) duty, (2) breach of duty, (3) causation, and (4) injury.” Patterson v. Liberty Assocs., L.P., 910 So.2d 1014, 1019(¶ 14) (Miss.2004). “In order to survive a motion for summary judgment in a negligence action[,] the plaintiff must put on evidence showing that the defendant breached a duty of care and that [the] breach proximately caused his injury.” Palmer, 656 So.2d at 797.

¶ 12. In Accu-Fab & Construction, Inc. v. Ladner, 778 So.2d 766, 771(¶ 21) (Miss.2001) (overruled on other grounds), the supreme court held that it was not an abuse of the trial court’s discretion to admit evidence of OSHA’s regulations for a limited purpose “to be used as a measure of reasonable care consistent with industry standards” and not to show negligence. Thus, OSHA’s regulations are not always admissible. Instead, the decision of whether to admit or exclude evidence of OSHA’s regulations lies within the discretion of the trial judge.

¶ 13. The trial court found the following:

Thus, the mere fact that the ladder was not constructed in accordance with the contract specifications or with OSHA regulations, is not sufficient to show negligence which resulted in injury to [Rogers]. But even if the Court were to allow testimony about OSHA guidelines, the Plaintiffs still cannot meet their burden of proof on causation because [the] Plaintiffs fail to present any witnesses who can testify as to how and why Rogers fell or that had the ladder met OSHA guidelines Rogers would not have fallen. Stated another way, no proof exists to establish a reasonable inference that any negligence on the part of Defendants proximately contributed to the Plaintiffs’ damages.... [The] Plaintiffs in this case present only conjecture and possibility as to the cause of Rogers’[s] fall. Such speculation “is never sufficient to sustain a verdict in a tort action” because a mere scintilla of negligence cannot create a jury issue.

¶ 14. The Appellants’ evidence of causation was based on the expert-witness testimony of Dr. Hall and Dr. Shenefelt. The Appellants argued that the experts’ testimonies established that the design and installation of the ladder caused or contributed to decedent’s injuries and death. Upon our review of the testimonies of Dr. Hall and Dr. Shenefelt, we find that their opinions are a mere guess, speculation, or conjecture on their part. Such testimony is insufficient to create a genuine issue of material fact.

¶ 15. Dr. Hall testified that the condition of the ladder more likely than not was a cause of Rogers’s fall. However, he also testified as follows:

Question: You are not an accident re-constructionist, are you?
Answer: No.
Question: Have you made any investigation and do you have an opinion as to what caused Mr. Rogers to fall from the ladder.
Answer: Yes, I have an opinion. Based on my experience in the field of construction and based on the fact that OSHA has determined what is a safe and unsafe ladder, I think more likely than not the fall occurred as a result of a problem with the defective construction of the ladder.
Question: What do you base that on? What investigation have you done to make that determination?
Answer: Again, I am not an accident reconstructionist, but it’s based on my — we design things to standards because the safety experts have determined ergonomically statistically for whatever reason that we have to follow certain standard design and thresholds to preclude accidents from recurring. There’s a greater likelihood of the accident occurring if it’s built defective than if it’s not built defective. Am I able to rule out other conditions, personal health, other things that might have been involved in the accident, no, I’m not an accident reconstruetionist.
Question: Had the ladder been constructed, you’re not able to say as you say 16 inches and five inches, that Mr. Rogers wouldn’t have fallen anyway?
Answer: I cannot say yes or no.
Question: Let me state it another way then, are you prepared to say that if the ladder had been constructed according to OSHA guidelines that Mr. Rogers would not have fallen?
Answer: Again, with total surety, I cannot say yes or no.
Question: Do you know what caused Mr. Rogers to fall?
Answer: No.

¶ 16. Dr. Hall’s testimony does not prove that the defective design or installation of the ladder caused Rogers’s fall and damages. Dr. Hall’s opinion is based on the ladder’s dimensions. Dr. Hall testified that even though his conclusions are based on OSHA’s guidelines, he cannot say that had the ladder met OSHA’s guidelines, Rogers would not have fallen. Dr. Hall also testified that there were other conditions which could have caused Rogers to fall, such as Roger’s personal health “or other things,” and that he simply could not say what was the proximate cause of Rogers’s fall. Dr. Hall admitted that he did not know what caused Rogers’s fall. Dr. Hall’s testimony discussed the architects’ construction responsibility, but his testimony does not establish causation.

¶ 17. Dr. Shenefelt is a mechanical engineer. His investigation of the accident was limited to his discussions with the Appellants’ attorney. He made no independent investigation into the cause of the fall. Dr. Shenefelt testified as follows:

Question: What opinions do you intend to render in this case?
Answer: That the ladder as placed on the building did not meet OSHA regulations and, therefore, caused a hazard.
Question: In your opinion can you discount the fact that Mr. Rogers fell for reasons other than slipping?
Answer: He could have had a stroke, I don’t know.
Question: So there are other things that could have happened that caused him to fall other than just merely slipping off the ladder-off the rung of the ladder?
Answer: Well sure, he could have let go. I don’t think that’s natural, but it’s possible.
Question: Now your opinion that Mr. Rogers fell because the ladder did not meet OSHA specifications, do you intend to express an opinion that if the ladder had met OSHA specifications he would not have fallen?
Answer: I would say that if the ladder had met specifications it would have contributed less to his fall.
Question: But you can’t state that had the ladder met OSHA specifications that he wouldn’t have fallen?
Answer: No, I can’t say that, no.

¶ 18. Dr. Shenefelt made no effort to determine what Rogers was doing at the time he fell. He did not know how many times Rogers or others had used the ladder without incident. Dr. Shenefelt was of the opinion that the mere fact that the ladder did not meet OSHA’s mandated dimensions and the fact that Rogers was on the ladder at the time he fell were sufficient to show a cause and effect. However, we find that Dr. Shenefelt’s testimony does not establish causation.

¶ 19. Clearly, OSHA’s regulations are not admissible to prove negligence. Crane Co. v. Kitzinger, 860 So.2d 1196, 1199-1200(¶ 12) (Miss.2003). Likewise, OSHA’s regulations, even if admissible, are insufficient to prove causation. At best, Dr. Shenefelt’s testimony — that if the ladder had met OSHA’s specifications that the ladder would have contributed “less” to his fall — is insufficient to establish causation.

¶ 20. No one knows if Rogers slipped, missed a step, became dizzy, or simply fell for some other unknown reason totally unrelated to the dimensions of the ladder. Rogers’s presence on the ladder at the time of his fall was not enough to say the ladder was the proximate cause of his fall when there was no evidence presented as to why Rogers fell. The trial court’s basis for granting summary judgment was that the Appellants failed to show causation, and the Appellants’ experts do nothing to advance their theory of causation.

¶ 21. Summary judgment may not be defeated through expert opinions that are not based on facts but instead are based on a guess, speculation, or conjecture. In Davis v. Christian Brotherhood Homes of Jackson, Mississippi, Inc., 957 So.2d 390, 409(¶ 46) (Miss.Ct.App.2007), Judge Barnes, writing for the Court, concluded that:

According to our supreme court in Mississippi Transportation Commission v. McLemore, 863 So.2d 31 (Miss.2003), “the facts upon which the expert bases his opinion or conclusion must permit reasonably accurate conclusions as distinguished from mere guess or conjecture.” Id. at 36 (¶ 8) (quoting Hickox v. Holleman, 502 So.2d 626, 638 (Miss.1987)). Accordingly, the proponent of the expert’s testimony must demonstrate that such testimony is not based “merely [on] his subjective beliefs or unsupported speculation.” Id. at (¶ 11) citing Daubert [v. Merrell Dow Pharmaceuticals, Inc.], 509 U.S. [579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]. Furthermore, “neither Daubert nor the Federal Rules of Evidence requires that a court ‘admit opinion evidence that is connected to existing data only by the ipse dixit of the expert,’ as self-proclaimed accuracy by an expert is an insufficient measure of reliability.” Id. at 37(¶ 13) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)).

¶ 22. The plaintiffs in Davis brought a premises-liability claim. Id. at 394(¶ 1). In response to a motion for summary judgment, the plaintiffs presented the affidavit of Commander Tyrone Lewis of the Jackson Police Department. Id. at 408(¶43). Commander Lewis was designated as an expert in the field of security and law enforcement. Id. In his affidavit, Commander Lewis testified that the cause of Lucius Davis’s death was the defendant’s failure to have security guards or other security measures. Id. Commander Lewis testified that the security guards would have stopped Troy Younger from loitering and starting a fight with Lucius in the parking lot, which preceded Lucius’s death. Id. Commander Lewis further stated that, on the issue of inadequate lighting, it was well known in his field of expertise “that inadequate lighting increases the chances of criminal activity” and the inadequate lighting at the complex on February 4, 2003, contributed to the death of Lucius. Id.

¶ 23. The trial court granted Christian Brotherhood’s motion for summary judgment. The court concluded that Commander Lewis’s affidavit was “nothing more than just a compilation of conclusory statements and provides no factual basis.” Id. This Court affirmed the summary judgment and held that an expert’s opinion must be supported by appropriate validation, i.e., good grounds based on what is known and that the trial judge did not abuse his discretion as the gatekeeper in ruling that the opinions contained in Commander Lewis’s affidavit were merely con-clusory statements and had no factual basis. The Court also held that “[a]lthough Davis correctly points out that the issue of proximate cause is generally an issue for a jury to decide, this fact does not change the requirement that, to withstand a motion for summary judgment, the non-moving party must present evidence that would allow a jury to find that the breach proximately caused the injury at issue.” Id. at 410(¶ 48).

¶24. The Appellants here have the same problem. Without the expert witnesses’ conclusory statements and speculation, there is no way to make the leap from the failure to meet OSHA’s ladder dimensions to the proximate cause of Rogers’s fall. Just as the Court in Davis found it appropriate for the trial court to disregard the expert opinion of Commander Lewis that inadequate lighting increased the chances of criminal activity, it is likewise appropriate for trial court here to disregard the testimonies of the Appellants’ experts that failure to comply with OSHA’s guidelines increased the likelihood that the ladder’s dimensions were the proximate cause of the fall. The experts made no attempt to investigate the cause of the fall. They simply looked at the ladder dimensions and assumed that the dimensions must have been the cause. An expert’s opinion must be based on more than speculation and conjecture.

¶ 25. We then turn to the other evidence available. Martin was an eyewitness to the accident. Martin described the accident as follows:

Well, we went into the mechanical room. I think mostly all of the roofing people pretty much gained access to the ladder and they went on up on top of the building from the inside up on top of the building to the roof. And Yates Construction people, they went also. And I was the last one before Mr. Rogers went up to go up to the roof, you know, to get access to go up on top of the building. So when I went up I was kind of walking away from the opening and just something said, you know, you need to kind of wait and make sure Mr. Rogers gets up.
So I kind of backed up a little and I waited for Mr. Rogers to gain access to the ladder and come up. And the time that I thought that he should have been up, I had not seen his head, you know, clear the opening, so I just kind of backed up a little further. I went to kind of peak over to see if I could see, you know, how far along the line was he, and I saw him coming up so I kind of backed off a little. And he came up a little. When his head cleared the opening of the access door and the roof, he stopped. He didn’t come all the way out. It was just his head had cleared the opening, you know, just his head only. He stopped and then he kind of just paused for a moment and I was trying to figure out, you Imow, is he going to come on up and finish the climb or what’s going on. So he just stopped, hesitated, and then he started backing up and going back down the ladder. At that point I was confused. He was not talking. Verbally he didn’t say anything. He just started going back down the ladder.
So I come over a little further to see what was going on. Like I say, he was a huge guy. So when I looked down, I really couldn’t see much, just no more than his head. I was only a few feets [sic] away from, you know, the opening and I don’t know what was going on, but he still was — I couldn’t figure out what was going on, you know. I know he had backed back up and his head had went back down from the top. So his head was no longer visible right there. You know, I had to kind of look down to see him. At that moment, you know, I don’t know what was going on. I looked down and I was just kind of staring to see what was going on. I really couldn’t figure out was he going down or was he coming up or what’s going on. He’s not talking and not saying nothing [sic].
So by the time I realized that something was going on, just instinctively, you know, I lunged myself forward because he was falling or something like that. I lunged up forward and I grabbed his jacket just kind of like this with both hands. (Demonstrates) I said, I’m a pretty big guy and I take a lot of pride in being in shape. I used to do a lot of pushups. So I thought I was pretty strong, but, you know, I really wasn’t thinking about what I was doing. But I thought he was in trouble. When I grabbed the jacket, he continued to fall. And from my view I couldn’t really see the fall, but, you know, when I got down the ladder, he was lying on the floor on his back.

¶ 26. Martin testified that he could not tell what caused Rogers’s fall and that Rogers gave no indication prior to his fall of what was happening. Martin could not tell if Rogers slipped or if the condition of the ladder played a role at all in Rogers’s fall. There was no evidence that Rogers slipped. According to Martin, six people had gone up that same ladder prior to Rogers that day. Martin testified that prior to the date of the accident, he and his two employees went up the ladder between twenty-five to fifty times each with no incident.

¶ 27. The Appellants did not present sufficient evidence to provide that the actions of Barlow Eddy were the proximate cause or the proximate contributing cause of Rogers’s injuries. The trial court correctly held that the Appellants would have had to prove that Barlow Eddy’s negligence caused Rogers’s death. The trial court also correctly concluded that the Appellants had failed to present any witnesses who could testify as to how and why Rogers fell; likewise, the court found that the Appellants had failed to present any evidence that if the ladder had met OSHA’s guidelines, Rogers would not have fallen.

¶ 28. The trial court also correctly concluded that the opinions of Dr. Hall and Dr. Shenefelt were a mere guess, speculation, or conjecture as to the element of proximate cause. The testimonies of Dr. Hall and Dr. Shenefelt were sufficient to establish a duty. However, their testimonies did not prove causation. Neither Dr. Hall nor Dr. Shenefelt testified why or how Rogers fell. Neither testified that any action or inaction of Barlow Eddy was the proximate cause of Rogers’s fall. Instead, both witnesses opined that since the ladder in question did not meet OSHA’s standards, then it must have contributed to Rogers’s fall. Dr. Hall specifically stated that he did not know what caused Rogers to fall. Dr. Shenefelt’s opinion was premised solely on the fact that “the ladder as placed on the building did not meet OSHA’s regulations and, therefore, caused a hazard.” He acknowledged there could be other unknown reasons for the fall. Finally, he testified that he could not say that if the ladder had met OSHA’s specifications Rogers would not have fallen.

¶ 29. The Appellants’ failure to prove causation required that summary judgment be granted. Accordingly, the trial court’s grant of summary judgment is affirmed.

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

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

ISHEE, J.,

Dissenting.

¶ 31. I respectfully dissent from the majority. I would reverse the judgment of the circuit court granting the motion for summary judgment and remand this case for a trial on the merits.

¶ 32. The circuit court found that the Appellants’ negligence claim against Barlow Eddy Jenkins, P.A. (Barlow Eddy) failed because the Appellants did not present any competent evidence to demonstrate that Barlow Eddy’s actions were the proximate cause or proximate contributing cause of Robert Gary Rogers’s (Rogers) injuries. Although the circuit court correctly pointed out that evidence of OSHA’s regulations are not admissible in Mississippi to show negligence, OSHA’s standards and regulations may be “admissible as a measure to show reasonable care consistent with industry standards.” Wilkins v. Bloodsaw, 850 So.2d 185, 188(¶ 11) (Miss.Ct.App.2003); see also Accu-Fab & Constr., Inc. v. Ladner, 778 So.2d 766, 771(¶ 21) (Miss.2001) (overruled on other grounds) (holding that OSHA’s regulations were admissible as a measure of reasonable care consistent with industry standards).

¶ 33. The Appellants presented two expert witnesses who testified that, in their opinions, the ladder’s defective design was a contributing factor to Rogers’s fall. Neil Hall, Ph.D., testified as follows:

Yes, I have an opinion. Based on my experience in the field in construction and based on the fact that OSHA has determined what is a safe and unsafe ladder, I think more likely than not the fall occurred as a result of a problem with the defective construction of the ladder.

It was Dr. Hall’s opinion that designing and installing a ladder that failed to meet industry standards was the likely cause of the accident. He admitted that he was unable to conclusively rule out other causes of the fall, but such a standard of certainty is not required to create a triable issue of material fact and to withstand summary judgment. In Herrington v. Leaf River Forest Products, Inc., 733 So.2d 774 (Miss.1999), the supreme court also dealt with the issue of causation in regard to a summary judgment motion. The supreme court stated:

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough....

Id. at 777-78(¶ 10) (quoting Burnham v. Tabb, 508 So.2d 1072, 1074 (Miss.1987)). In the present case, Dr. Hall testified that the fall was more likely than not caused by the defective ladder. The testimony of Jeffrey R. Shenefelt, Ph.D., was somewhat less conclusive, but he also testified that the defective design of the ladder contributed to Rogers’s fall.

¶ 34. I would find that the expert testimonies, when taken in a light most favorable to the nonmoving party, were sufficient to establish the question of negligence as a genuine issue of material fact and, therefore, to withstand a motion for summary judgment. Accordingly, I would find that whether Barlow Eddy’s negligence contributed to Rogers’s death is a question that is best left for a jury. Therefore, I would reverse the circuit court’s judgment granting the motion for summary judgment and remand the case for further proceedings. For the reasons stated, I respectfully dissent from the majority opinion.

KING, C.J., LEE AND MYERS, P.JJ., AND MAXWELL, J., JOIN THIS OPINION.

      . The Appellees will be collectively referred to as "Barlow Eddy” unless, for the sake of clarity, the distinction is relevant.