author: LEE, C.J.,

text:
    Amber TONEY, Administratrix FOR the ESTATE OF Larry Donnell TONEY, and Amber Toney, Individually and on Behalf of the Wrongful Death Beneficiaries of Larry Donnell Toney, Deceased, Appellant v. SOUTHERN CRANE & RIGGING, INC., Appellee
    NO. 2016-CA-01134-COA
    Court of Appeals of Mississippi.
    08/01/2017

      ATTORNEY FOR APPELLANT: OR-VIS A. SHIYOU JR.
    ATTORNEYS FOR APPELLEE: MICHAEL J. WOLF, GEORGE MARTIN STREET JR.
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ. .
   LEE, C.J.,

FOR THE COURT:

¶ 1. In this wrongful-death case, we must determine whether the trial court erred by granting Southern Crane and Rigging’s motion for summary judgment. Finding no error, we affirm.

PROCEDURAL HISTORY

¶2. On April 25, 2011, Larry Donnell Toney (Larry) was killed while dismantling oil-field equipment on a site in Wayne County, Mississippi. At the time, Larry was employed by T.K. Stanley Inc. (TKS). Southern Crane had been hired to assist TKS’s employees. On March 11, 2013, the administrator of Larry’s estate, Amber To-ney (Toney), filed suit in the Wayne County Circuit Court against Southern Crane alleging negligence, gross negligence, failure to supervise, and failure to warn.

¶ 3. In February 2016, Southern Crane filed a motion to dismiss or, in the alternative, a motion for summary judgment. In response, Toney filed a motion to amend the complaint. After a hearing on both motions, the trial court granted Southern Crane’s motion for summary judgment. The trial court did not explicitly deny To-ney’s motion to amend the complaint.

FACTS

¶ 4. On the day in question, Larry arrived on the construction site to assist in dismantling a “flare stack.” A flare stack is a tower used in the oil-production process to burn off natural gases. They are sometimes welded to a concrete slab, and additional support can be provided by “guy wires” connecting the flare stack to the ground.

¶ 5. TKS hired Southern Crane to assist in dismantling the flare stack. Frankie Harrison, the owner of Southern Crane, arrived to the site with the crane. According to Harrison, his job was to maneuver the crane in position and, once the crane’s hoist line was attached to the flare stack, lower the flare stack onto a truck. Harrison stated that one of TKS’s employees was supposed to attach the crane’s hoist line to the flare stack. Before the hoist line was attached to the flare stack, Harrison saw TKS’s employees removing the guy wires and told TKS’s foreman, Robert Lof-ton. Lofton, who had instructed his crew to remove the three guy wires, told Harrison not to worry, that the flare stack was welded to a concrete slab. After the guy wires were disconnected, a TKS employee proceeded to climb a ladder that had been placed against the flare stack. This employee was to attach the crane’s hoist line to the flare stack, but before he could do so, the flare stack fell and struck Larry, killing him.

¶ 6. The report issued by the Occupational Safety and Health Administration (OSHA) stated that the investigation into the accident revealed that the flare stack was not welded to a concrete slab. The report stated: “After the guy wires were disconnected, the [TKS] employee on the ladder started climbing, which caused the flare stack to fall over and strike the deceased on his back.” The report noted that “[t]he flare stack’s base had not been anchored into cement as originally thought by [Lofton.]” The OSHA investigator noted that he and Harrison “dug in the crushed rock base with [Harrison’s] spade until we came to red sandy clay; there was no concrete under the flare stack’s base,”

STANDARD OP REVIEW

¶ 7. The grant of a motion for summary judgment is reviewed de novo. Karpinsky v. Am. Nat’l Ins., 109 So.3d 84, 88 (¶ 9) (Miss. 2013). We view the evidence “in the light most favorable to the party against whom the motion has been made.” Id.

Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers tb interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any materia!fact and that the moving party is entitled to [a] judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in [Mississippi Rule of Civil Procedure 56], must set forth specific facts showing that there ⅛ a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.
[The Mississippi Supreme] Court has explained that in a summary judgment hearing, the burden of producing -evidence in support of, or in opposition to, the motion is a function of Mississippi rules regarding the burden of proof at trial on the issues in question. The mov-ant bears the burden' of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law. The movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [the movant] would bear the burden of proof at trial. Furthermore, summary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial.

Id. at 88-89 (¶¶ 10-11) (internal quotation marks, emphasis, and citations omitted).

¶ 8. The decision to grant or deny a motion to amend a complaint is within the trial court’s discretion and will be reviewed for an abuse of discretion. Breeden v. Buchanan, 164 So.3d 1057, 1060 (¶ 14) (Miss. Ct. App. 2013).

DISCUSSION

I. Summary Judgment

¶ 9. Toney- argues that several genuine issues of material fact exist such that summary judgment was premature. These, issues include whether Southern Crane had a duty to: ensure the crane’s hoist line was safely attached to the flare stack, supervise TKS employees during the removal of the guy wires, determine whether the flare stack was secure, and warn the others once the flare stack began to fall.

¶ 10. “[T]o prevail on a negligence claim, a plaintiff must prove, by a preponderance of the evidence, duty or standard of care, breach, causation and damages.” Ready v. RWI Transp. LLC, 203 So.3d 590, 593 (¶ 7) (Miss. 2016) (citation omitted). If the “nonmoving party cannot make a prima facie showing of all the elements of his or her claim,” then summary judgment is appropriate. Id. Here, Toney failed to respond to Southern Cirane’s motion for summary judgment. Instead, Toney filed a motion to amend the complaint. Toney did mention some of these purported issues of material fact during the summary-judgment hearing, bfit mostly in the context of the motion to amend. Toney argued that if the motion to amend was granted, then she would have time to conduct additional discovery to find an expert to support her claims. Mississippi Rule of Civil Procedure 56(e) states that after a motion for summary judgment is made,

an adverse party may not rest upon the mere allegations or denials of [her] jpleadings, but [her] response, by affida-ivits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If [she] does not respond, summary judgment, if appropriate, shall be entered against [her].

Toney’s genuine issues of material fact are simply allegations without any additional support. As Toney has failed to make a prima facie showing of all the elements of her claim, we find the trial court’s decision to grant summary judgment in favor of Southern Crane was appropriate. This issue is without merit.

II. Motion to Amend

¶ 11. Toney also argues that the trial court abused its discretion by denying her motion to amend the complaint. Here, the trial court did not explicitly deny To-ney’s motion to amend. However, the trial court’s decision to grant summary judgment in favor of Southern Crane implicitly denied Toney’s motion to amend. See Lucas v. Baptist Mem. Hosp.-N. Miss. Inc., 997 So.2d 226, 231 (¶ 14) (Miss. Ct. App. 2008).

,¶ 12. We cannot, find the trial court abused its discretion in implicitly denying Toney’s motion to amend the complaint. This motion came three years after Toney filed her original complaint and only after faced with Southern Crane’s motion for summary judgment. This issue is without merit.

¶ 13. AFFIRMED.

IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. GRIFFIS, P.J., NOT PARTICIPATING.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    John Calvin HOWARD, Appellant v. ROLIN ENTERPRISES, LLC, Linda Walker, Individually and Doing Business as Rolin Enterprises, LLC, and Charlie Norrell, Appellees
    NO. 2016-CA-00310-COA
    Court of Appeals of Mississippi.
    08/08/2017

      CLAIBORNE COUNTY CIRCUIT COURT, LAMAR PICKARD, J.
    ATTORNEYS FOR APPELLANT: DAVID M. SESSUMS, KIMBERLY WALKER NAILOR, W. RICHARD JOHNSON
    ATTORNEYS FOR APPELLEE: BENJAMIN LYLE ROBINSON, MICHAEL MADISON TAYLOR JR.
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. John Calvin Howard attended a party at the Claiborne County Convention Center (Convention Center), where he was assaulted by a group of fellow partygoers and sustained injuries. Howard brought suit against the following: Linda Walker, the owner of the Convention Center, in her individual capacity and doing business as Rolin Enterprises, LLC (Rolin); Charlie Norrell, who provided security services for the party, in his individual capacity and doing business as Celebrity 1 Security; and Tristón Moore, who coordinated the event. Walker and Rolin filed a motion for summary judgment, which the Claiborne County Circuit Court granted. Howard appeals. Because the circuit court’s summary-judgment order and subsequent final judgment did not dispose of all parties involved in this matter or certify that the final judgment was entered pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, we must dismiss the appeal for lack of jurisdiction.

FACTS

¶2. Walker, doing business as Rolin, owned the Convention Center, which she rented to third parties for various events. Moore rented the Convention Center from Walker for the purpose of hosting a party following an Alcorn State football game on September 14, 2013. Howard and a group of his friends, including another young man named Michael Moseley, arrived to the Convention Center around 11:30 p.m. on September 14, 2013, as the party was well underway. Shortly after arriving, Howard and Moseley were on the dance floor when they were assaulted by other partygoers, one of whom was later identified as Justin Bailey. Security, including Norrell, broke up the fight and separated the two groups by sending Bailey and his accomplices outside, while telling Howard and Moseley to wait on-stage for a few minutes. After about ten to fifteen minutes, Howard and Moseley decided to leave the Convention Center. Norrell escorted them outside. As they were crossing the parking lot, the same group from before attacked Howard and Moseley a second time. Howard maintains that Bailey stabbed him in the neck with a broken' beer bottle. According to Howard, Norrell did not take any action to stop the fight, but merely watched it take place. The fight was finally broken up by a third party, and Howard was airlifted to the University of Mississippi Medical Center, where he whs treated for lacerations to his neck, shoulder, and back.

¶8. Howard filed a complaint against Rolin, alleging that it had failed to maintain the premises in a reasonably safe condition. Howard then sought, and was granted, leave of court to filé an amended complaint, joining Norrell, individually and doing business as Celebrity 1 Security, Moore, and Walker in her individual capacity. After obtaining leave of court, Howard amended his complaint accordingly.

¶ 4. The record reflects that process was served on Norrell on October 25, 2014, but does not show that Norrell ever filed an answer. Both parties in their.'appellate briefs agree that Norrell was served with process, but that Moore was not. The docket indicates that Norrell continued to be noticed of. certain orders throughout discovery (including an order setting the pretrial conference date and a later order continuing the pretrial conference to an-, other date), along with Walker and Rolin’s attorneys. However, Norrell never filed any pleadings or responses of his own. Further, no entry of default judgment was ever entered against him,'

¶ 5. Howard and Walker proceeded with discovery, Howard, Walker, and Moore provided depositions. Walker twice scheduled and noticed depositions for Norrell, but Norrell failed to appear both times. The only correspondence with Norrell included in the record is an email from Walker’s counsel to Howard’s, wherein Walker informed Howard on the night before Norrell’s second scheduled deposition was to take place that it would be cancelled, as Norrell told Walker that he was out of the state and would be unable to attend. Shortly thereafter, Walker and Rolin filed their motion for summary judgment, which, as stated, was granted without the judgment being certified pursuant to Rule 54(b).

DISCUSSION

¶ 6, “Because this .issue is jurisdictional, we must address it on our initiative even though none of the parties have raised it on appeal.” Jackson v. Lowe, 65 So.3d 879, 881 (¶ 5) (Miss. Ct. App. 2011) (citing M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss. 2006)), “Generally, only final judgments are appealable.” Id. at (¶ 6). Rule 54(b) provides:

When more than one claim for relief, is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated!!,] which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added). “Without the entry of a Rule 54(b) certificate, a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim action, is interlocutory.” Jackson, 65 So.3d at 881 (¶ 7) (citation omitted). “An interlocutory order without a Rule 54[ (b) ] certification is only appealable if the Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of Appellate Procedure; this Court has no jurisdiction to hear it otherwise.” Id. at 881-82 (¶ 7) (citation omitted).-

¶ 7. Here, Moore is not a party to the action, because the record does not indicate that he was ever served with process. ‘When a complaint is filed, the clerk issues a summons, and both the complaint and summons must be served on the defendant in accordance with Rule 4 [of the Mississippi Rules of Civil Procedure].” BB Buggies, Inc. v. Leon, 150 So.3d 90, 95 (¶ 8) (Miss. 2014). “[T]he mere naming of a person in a declaration and issuance of process without service thereof does not make him a party to the action ....” State ex rel. Moak v. Moore, 373 So.2d 1011, 1012 (Miss. 1979).

¶ 8. However, Norrell beeame a party to this action when he was served with process, despite the fact that he never filed any pleadings or indicated that he wished to defend himself against Howard’s lawsuit. No default judgment was ever entered against Norrell. As such, he is still a party to the action, and the circuit court’s final judgment—which makes no mention of Rule 54(b) and fails to utilize any of the operative language which would grant us jurisdiction pursuant to that rule—is not appealable. Therefore, we lack jurisdiction to hear this appeal.

¶ 9. APPEAL DISMISSED.

LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, 33., CONCUR. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WILSON, J„ NOT PARTICIPATING.

      . The parties disagree as to whether Moore actually rented the venue from Walker, or whether Walker rented the venue to a third party, who then contracted with Moore. Further, the parties dispute whether Walker relinquished control over the venue, on the evening in question. However, we decline to address these issues now because we are dismissing this case for lack of jurisdiction.


author: FAIR, J.,

text:
    Andrew Leon BRADLEY a/k/a Andrew L. Bradley a/k/a Andrew Bradley, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01314-COA
    Court of Appeals of Mississippi.
    08/15/2017

      ANDREW LEON BRADLEY (PRO SE), ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, ATTORNEY FOR APPELLEE
    BEFORE LEE, C.J., CARLTON AND FAIR, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Andrew Bradley pled guilty to one count of possession of cocaine with intent to distribute, as a habitual offender. He did so pursuant to a plea bargain, where in exchange for his guilty plea the prosecution agreed to eliminate a recidivist enhancement, to recommend a maximum of a ten-year sentence, and to retire to the file charges in another case. The circuit court sentenced Bradley to ten years, as a habitual- offender and without the possibility of probation or parole. Less than'a year later, Bradley filed the instant motion for post-conviction relief. The circuit court dismissed it without an evidentiary hearing, and after reviewing the record, we affirm.

STANDARD OF REVIEW

¶2. The circuit court may summarily dismiss a PCR motion without an eviden-tiary healing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

DISCUSSION

1.Voluntariness of Plea

• ¶ 4. In his first issue, Bradley contends that his guilty plea was involuntary. He alleges that he only agreed to plead guilty because the prosecutor threatened him with a life sentence if he went to trial. He also claims that defense counsel “coached” him into testifying at the hearing that his plea was voluntary.

¶ 5, These contentions are supported only by Bradley’s claims in his PCR motion and his brief on appeal, and they are directly contradicted by his sworn petition to enter a guilty plea and by his testimony at the hearing. The record reflects that Bradley repeatedly admitted under oath that he had not been threatened, intimidated, or coerced and that he was pleading guilty of his own free will.

¶ 6. Bradley’s own • claims in his PCR motion are insufficient to require an evidentiary hearing, given his prior sworn statements. No hearing is required “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the .court can conclude that the affidavit is a sham.” Wright v. State, 577 So.2d 387, 390 (Miss. 1991).

2. Factual Basis

¶ 7. Under the umbrella of his first issue, Bradley also claims that there was no factual basis for his guilty-plea. Suffice it to say that, at the guilty plea hearing, Bradley admitted under oath to every element of the offense.

¶8. Bradley’s post-conviction challenge actually consists of factual contentions that challenge the strength of the evidence against him and the ability of the prosecution to prove its case at trial. For example, the prosecutor stated, and Bradley admitted under oath, that Bradley threw a bag containing cocaine out of his vehicle while fleeing from the police. In his PCR motion, however, Bradley contends that the prosecution would not really have been able to prove that he was the one who threw the bag, as he had a passenger in the vehicle at the time.

¶ 9. But Bradley pled guilty, and “[a] valid guilty plea waives the right to challenge, the sufficiency of the State’s evidence.” Belton v. State, 138 So.3d 237, 239 (¶ 9) (Miss. Ct. App. 2014) (citation omitted). This issue is without merit.

3. Weight of the Evidence

¶ 10. Bradley’s next issue is essentially a rehashing of his factual basis argument, which we addressed in the previous issue and found without merit. Again, “[a] valid guilty plea waives the right to challenge the sufficiency of the State’s • -evidence.” Belton, 138 So.3d at 239.

4. Preliminary Hearing

¶ 11. Bradley next contends that he did not receive a timely preliminary hearing, and if. -he had, that it would have determined that the prosecution could not make a case against him. The record reflects, in fact, that Bradley was indicted by a grand jury, which both disproves Bradley’s claims about the evidence and renders the question of a preliminary hearing moot. In Sanders v. State, 847 So.2d 903, 907 (¶ 22) (Miss. Ct. App. 2003), this Court explained:

The record does not show whether Sanders had a preliminary hearing. However, once the indictment occurs, even had a preliminary hearing not been provided, that question becomes moot. The purpose of a preliminary hearing is to explore whether there is probable cause to believe that the defendant has committed an offense. The indictment by a grand jury removes the purpose of the hearing and none need thereafter be conducted. Sanders’ indictment appears in the record; therefore, the preliminary hearing issue is unavailing. .

(Citations omitted).

¶ 12. This issue is without merit.

5. Indictment

¶ 13. In Bradley’s next issue, he contends that his indictment was defective. Some of his arguments here are difficult to comprehend—he appears to argue that his indictment'conflicted with another indictment rendered against him several months ’ prior, but that indictment is not found in the record. The various assertions made by Bradley on this point do not even suggest that he might be entitled to relief; even based on Bradley’s own contentions, it appears he faced indictments for two entirely separate incidents occurring some time apart from each other.

¶ 14., Bradley also contends that his indictment was defective because it did not allege the specific amount of cocaine he ultimately admitted to possessing—2.15 grams—but instead tracked the language of the statute and accused him of possessing two or more grams, but less than ten grams, of cocaine. See Miss. Code Ann. § 41-29-139(b)(1)(B) (Supp, 2016).

¶ 15. “The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an. adequate defense.” Warren v. State, 187 So.3d 616, 621 (¶ 10) (Miss. 2016) (citation omitted). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as those words of themselves fully, directly, and expressly," without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Tran v. State, 962, So.2d 1237, 1241 (¶ 17) (Miss. 2007). “The ultimate test, when considering the .validity-of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense.” Warren, 187 So.3d at 621-22 (¶ 10) (citation omitted).

¶ 16. Under our .statute, it is not an element of the offense that the State prove the amount of drugs the defendant possessed to two decimal places; it is only required .to prove-that the defdndant possessed them in an amount punishable under the statute. See § 41-29-139. That was alleged by the indictment here. This, contention is without merit.

6.Sentencing as a Habitual Offender

¶ 17. Finally, Bradley presents several challenges to his indictment and sentencing as a habitual offender, some of which are repeated under more than one issue heading in his brief. We have combined all of Bradley’s challenges to his conviction and sentence as a habitual offender into one discussion for convenience.

¶ 18. The indictment detailed three prior convictions and sentences, all over one year in length. Bradley alleges that one of the prior convictions and sentences was “fabricated” in the sense that he was actually sentenced to a term of less than one year. He also contends that one of the convictions could not be used because he was presently serving that sentence at the time he was sentenced in the instant case; apparently his suspended sentence in that case had been revoked after he committed the instant offense.

¶ 19. First of all, Bradley did not object to his sentencing as a habitual offender. He is therefore procedurally barred from raising these issues on appeal. See Martin v. State, 214 So.3d 217, 220 (¶ 6) (Miss. 2017).

¶20. Notwithstanding the procedural bar, Bradley appears to misunderstand the habitual offender statute. It requires only that Bradley have been sentenced to a year or more; the length of the sentence controls, not how much of it is actually served. See § 99-19-81; Jackson v. State, 381 So.2d 1040, 1042 (Miss. 1980). Moreover, the record says nothing about the prior convictions beyond what was alleged in the indictment, which Bradley specifically admitted as true and accurate in both his sworn petition to enter a plea of guilty and his testimony at the guilty plea hearing. Again, “where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required.” Wright v. State, 577 So.2d 387, 390 (Miss. 1991).

¶ 21. We find no merit to these contentions.

¶ 22. AFFIRMED.

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

      . The sentence recommended and imposed was contrary to the habitual offender statute, which requires that the defendant be sentenced to the maximum term permitted for the underlying offense. See Miss. Code Ann. § 41-29-139(b)(1)(B) (Supp. 2016); Miss. Code Ann. § 99-19-81 (Rev. 2015). The record reflects no proportionality analysis. See generally Clowers v. State, 522 So.2d 762, 764 (Miss. 1988). But Bradley does not, and indeed cannot, complain that he received an illegally lenient sentence. See, e.g., Chambliss v. State, 188 So.3d 1262, 1267 (¶ 17) (Miss. Ct. App. 2016).


author: WILSON, J.,

text:
    Dedrick SMALL, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00595-COA
    Court of Appeals of Mississippi.
    08/15/2017

      OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, ATTORNEY FOR APPELLEE
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J.,

FOR THE COURT:

¶ 1. Dedrick Small was convicted of aiding and abetting Cortez Bass in the murder of Donterrius Jackson. On appeal, Small argues that the trial judge abused his discretion by excluding a .prior statement by Bass, who was convicted in a separate trial. The judge ruled that Bass’s statement, which tended to exculpate Small, was inadmissible hearsay. Small argues that the statement was admissible as a statement against Bass’s penal interest. However, we conclude that the trial judge did not abuse his discretion by excluding the statement, as it was neither against Bass’s penal interest nor supported by corroborating circumstances. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around 5 p.m. on March 10, 2014, Jackson and his friend George Anderson were walking near the intersection of Cotton Street and Beat Line Road in Tunica. Jackson and Anderson were in high school at the time and were out of school on spring break. Jackson and Anderson encountered Small, Bass, and Bass’s cousin, Kendrick. When the two groups met at the street corner, words were exchanged, and it appeared that a fight was imminent. Bass then shot Jackson in the back of the head, killing him.

¶ 3. Law enforcement quickly identified Bass as a suspect and arrested him. Bass gave a statement to Detective James Clark, of the Tunica County Sheriffs Office. Bass admitted that he shot Jackson, but he claimed that Jackson pulled a gun on him first. Detective .Clark asked Bass if Small had given him the gun that he used to kill Jackson, but Bass denied that Small had done so. Bass insisted that the gun was his,, but he did not know what, kind of gun it was and could only say that he bought it from an unknown man for $100. Bass claimed that, a short time before the shooting, Jackson or Anderson had called him a “bitch.” Bass also claimed that someone had shot at him the night before. Bass said that he returned home and retrieved his gun after his first encounter that day with Jackson, and Anderson.

¶ 4. Although Bass denied it, other witnesses reported that Small handed Bass the gun just before the shooting, .and Bass and Small were both indicted for Jackson’s murder. Prior to trial, Small filed a motion to sever. The trial judge reserved ruling on the motion. A joint trial began on June 9, 2015. After the State rested, Bass testified in his own defense and claimed—contrary to what he had., told Detective Clark—that Small handed him the gun just before he shot Jackson. After Bass’s testimony, the trial judge granted Small’s motion to sever. The State called Detective Clark on rebuttal to impeach Bass’s testimony. Detective Clark testified that Bass had told law enforcement that he brought the gun to the scene and that Small did not hand him the gun prior to the shooting. The jury convicted Bass.

¶ 5. Before Small’s subsequent separate trial, Small filed a motion to permit him to use Bass’s statement to Detective Clark as evidence at trial. Small argued that Bass’s statement was admissible under Mississippi Rule of Evidence 804(b)(3) as a statement against interest, . The trial judge denied Small’s motion after finding that Bass’s statement was not against his interest because Bass’s statement was a claim of self-defense.

¶ 6, Bass did not testify at Small’s trial. Two eyewitnesses testified that Bass shot Jackson with a gun that Small handed to him immediately before shots were fired. The defense called another eyewitness who testified that she did not see Small hand Bass a gun; however, she also testified that she did not see Bass pull the gun or “where [he got] the gun from.” The defense called another witness who drove up just as Bass stepped into the street and shot Jackson; the witness testified that she did not see Small, but she also testified that she did not see anything that occurred before Bass stepped into the street. No evidence was introduced at Small’s trial that Jackson fired first or that the killing was in self-defense.

¶ 7. The jury found Small guilty of first-degree murder. Because Small did not pull the trigger and was fourteen years old at the time of the offense, the trial judge sentenced him to life imprisonment with the possibility of parole. See Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Small filed a timely notice of appeal. On appeal, he raises only one issue: whether the trial judge abused his discretion by excluding Bass’s post-arrest statements.

ANALYSIS

¶ 8. Small argues that he was entitled to introduce Bass’s statements that Bass alone brought the gun to the street corner'where Jackson was shot and that Small did not hand the gun to Bass. Small argues that Bass’s post-arrest statement was against Bass’s penal interest because Bass stated that he retrieved the gun after he exchanged words with, Jackson, which, Small argued, tended to show premeditation by Bass. However, the trial judge found that Bass’s statement to Detective Clark was that he shot Jackson only after Jackson first fired at him, i.e., a claim-of self-defense. Thus, the trial judge reasoned that Bass’s statement was an attempt to articulate a defense to criminal liability, not a statement against Bass’s penal interest, Accordingly, the judge ruled that the statement was not admissible under the Rule 804(b)(3) exception to the hearsay rule,

¶ 9. In his statement to Detective Clark, Bass said that on the day of the shooting, Jackson and Anderson had called him a “bitch.” Bass went home, got a soda and some chips, and then stood outside talking with Small and Kendrick. The three then talked to the corner of Cotton Street and Beatline Road, where they encountered Jackson and Anderson. Words were exchanged, and Bass claimed that Jackson drew a gun and started shooting, so he returned-fire. When asked who gave him the gun, Bass said, “Nobody. I already had it myself.” Bass stated that he kept the gun mnder his mattress, although he did not=know the make or model of the gun and claimed that he bought it for $100 from an unknown man. Bass said he went home and retrieved the gun just before the shooting occurred. Bass was specifically asked whether Small had given him the gun, but Bass repeatedly denied that Small had done so. Bass was also adamant that Jackson had fired at him first.

¶ 10. Small argues that the totality of Bass’s statement to law enforcement—that Bass retrieved the gun after exchanging words with Jackson and Anderson—was against Bass’s penal interest because it tends to show premeditation. Small also argues that no reasonable person would claim to have retrieved a gun because he anticipated possible trouble if, in fact, someone handed him the gun only after trouble presented itself. However, the State argues, and the trial judge agreed, that Bass’s statement is still a claim of self-defense that, if true, would tend to eliminate or reduce his criminal liability.

¶ 11. “This Court reviews the trial court’s ruling admitting or excluding evidence for abuse of discretion.” Hartfield v. State, 161 So.3d 125, 130 (¶ 10) (Miss. 2015). We will not reverse a conviction based on an erroneous evidentiary ruling “unless the error affected a substantial right of [the defendant].” Id. (citing M.R.E. 103(a)).

¶12. There is no dispute that Bass’s statement to law enforcement was hearsay and, as such, was inadmissible absent some exception. M.R.E. 802. Rule 804 provides exceptions to the hearsay rule that apply “if the declarant is unavailable as a witness.” Small sought to introduce Bass’s statement under Rule 804(b)(3), which provides that hearsay is admissible if, “at the time of its making,” the statement “so far tended to subject [the declarant] to ... criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true.” Rule 804(b)(3) further provides that “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Thus, to summarize, three requirements must be met before a “statement against interest” may be admitted under this rule: (1) the declarant must be unavailable; (2) the statement must have clearly subjected the declarant to criminal liability; and (3) “corroborating circumstances” must “clearly indicate the [statement’s] trustworthiness.”

¶ 13. As to the first requirement, although Bass had not been subpoenaed for Small’s trial, the trial judge assumed, for purposes of ruling on Small’s pretrial motion, that Bass would invoke his Fifth Amendment privilege to refuse to testify if called as a witness at trial. The judge also accepted that this would render Bass “unavailable” for the purposes of Rule 804. See Jacobs v. State, 870 So.2d 1202, 1208 (¶ 13) (Miss. 2004).

¶ 14. To determine whether Bass’s statement was clearly against his penal interest, we must determine whether “a reasonable person in [his] position would not have made the statement unless believing it to be true.” Hartfield, 161 So.3d at 136 (¶ 15) (quoting Williams v. State, 667 So.2d 15, 19 (Miss. 1996), overruled on other grounds by Smith v. State, 986 So.2d 290, 298 n.4 (Miss. 2008)). The party offering such a statement must show that it “clearly and directly implicates the declarant himself in criminal conduct.” Id. (quoting Williams, 667 So.2d at 19). “The determination of whether a statement is against the declarant’s penal interest must be made by considering the statement in light of the surrounding circumstances.” Id. (citing Williamson v. United States, 512 U.S. 594, 604, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)).

¶ 15. On review, we cannot say that the trial judge abused his discretion in finding that the against-penal-interest exception to the hearsay rule did not apply. In general, a declarant’s statement that he shot the victim in self-defense is not admissible because the statement constitutes a defense to criminal liability. Therefore, it cannot be said that the statement “so far tend[s] to subject [the declarant] to ... criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true.” M.R.E. 804(b)(3); see Bailey v. State, 78 So.3d 308, 318 (¶ 31) (Miss. 2012) (holding that the defendant’s statement that he shot the victim “out of fear for [his] own life” was not admissible because it was not against his penal interest); Robinson v. State, 758 So.2d 480, 487 (¶ 25) (Miss. Ct. App. 2000) (holding that “a claim of self-defense” is not admissible under Rule 804(b)(3) because it “is clearly not a statement against interest”); cf. Hartfield, 161 So.3d at 136-37 (¶ 16) (holding that letters in which the declarant claimed that she had participated in crimes under duress were not against her penal interest).

¶ 16. Small argues that these cases do not apply to Bass’s specific statements that tended to exculpate Small. Small argues that even if Bass’s overall claim of self-defense was not against his penal interest, Bass’s specific denials that Small handed him the gun were against his interest. Small reasons that these specific statements tend to show premeditation and planning on Bass’s part.

¶ 17. We disagree that Bass’s statement must or should be parsed so finely. Bass’s claim was that he went home and retrieved the gun from his house because he feared that there would be trouble with Jackson and Anderson. His alleged fear seems to have been based on his prior encounter with Jackson and Anderson, some alleged shooting the night before, or both. Regardless, Bass’s claim that he retrieved the gun based on this fear was part and parcel of his self-defense narrative. In context, Bass’s statements that he retrieved the gun, that the gun was his, and that Small did not give him the gun did not “so far tend[ ] to subject [him] to ... criminal liability ... that a reasonable man in his position would not have made the statements] unless he believed [them] to be true.” M.R.E. 804(b)(3). Therefore, the trial judge did not abuse his discretion by excluding the statements.

¶ 18. Moreover, even if Bass’s statement had been against his interest, Small failed to show that the statement’s “corroborating circumstances clearly indicate [its] trustworthiness.” M.R.E. 804(b)(3). “Corroboration as required by Rule 804(b)(3) is not required to be absolute, and the sufficiency of the corroboration must be assessed in the light of the importance of the evidence and the offer- or’s fundamental constitutional right to present evidence.” Lacy v. State, 700 So.2d 602, 607 (¶ 15) (Miss. 1997). However, the circumstances under which the statement is made or some other evidence must provide sufficient corroboration to show that the statement is reliable and trustworthy. See id. at (¶¶ 16-17). The statement’s trustworthiness must be “clearly indicate[d].” M.R.E. 804(b)(3). “Unless such a statement can be corroborated as reliable, it will be excluded.” Id., cmt.

¶ 19. In the present case, there are no circumstances or other evidence to clearly indicate the reliability or trustworthiness of Bass’s statement. To the contrary, the relevant circumstances and evidence indicate that it was not reliable or trustworthy. Bass’s statement to law enforcement was unsworn, and, in relevant part, it was directly contradicted by Bass’s sworn testimony at his trial. In general, Bass’s statement to law enforcement was riddled with inconsistencies. Bass claimed that the gun was his, but he did not know what kind of gun it was and could not identify the unknown man who sold it to him for $100. Later in interview, when asked where he had gotten the gun, Bass simply stated, “I ain’t no snitch.” Two eyewitnesses testified at Small’s trial that Small handed Bass the gun just before shots were fired. In addition, at Bass’s trial, Anderson and Kendrick testified that Small handed Bass the gun just before the shooting. The two other eyewitnesses at Small’s trial testified that they did not see Small hand Bass the gun,. but neither could say that they saw Bass pull the gun. Under these circumstances, Bass’s prior statement was not sufficiently corroborated to be admitted under Rule 804(b)(3). Therefore, even if it could be considered a statement against Bass’s penal interest, it was properly excluded as inadmissible hearsay.

CONCLUSION

¶ 20. The trial judge did not abuse his discretion by excluding Bass’s post-arrest statements that Small did not hand him a gun. Bass’s statement was neither clearly against his penal interest nor clearly corroborated by attendant circumstances. Therefore, it was inadmissible hearsay and properly excluded. We therefore affirm Small’s conviction and sentence.

¶ 21. AFFIRMED.

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

      . Other witnesses denied that Jackson pulled a gun, and Jackson’s hands tested negative for gunshot residue.

      , Anderson and another witness at Bass’s trial testified that, earlier the same day, Bass had been driving a car and had attempted to run over Jackson and Anderson as they were walking down the street. Small was a passenger in the car. There was no testimony about this incident at Small’s subsequent separate trial.

      . Throughout this opinion, we quote the version of Rule 804(b)(3) in effect at the time of Small’s trial. The rule was amended in 2016 as part of a "general restyling” of the Mississippi Rules of Evidence, but the changes were "intended to be stylistic only.” M.R.E. 804, advisory committee's note.

      . Anderson and Kendrick did not testify at Small’s trial.


author: CARLTON, J.,

text:
    Jeffery CANTRELL a/k/a Jeffery Dale Cantrell a/k/a Jeffrey Cantrell a/k/a Jeff Cantrell, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00790-COA
    Court of Appeals of Mississippi.
    08/15/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ,
   CARLTON, J.,

FOR THE COURT:

¶ 1. Jeffrey Cantrell appeals his conviction for possession of methamphetamine and sentence, as a habitual offender, of six years in the custody of the Mississippi Department- of Corrections (MDOC), without eligibility for parole or probation. On appeal, Cantrell asserts that the jury verdict was against the overwhelming weight of the evidence, and as a result, he is entitled to a new trial. Finding no abuse of discretion, we affirm Cantrell’s conviction and sentence.

FACTS

¶ 2. On January 13, 2015, Officer Stanley Perry of the Cleveland Police Department received a call regarding a suspicious vehicle located behind a house in Cleveland, Mississippi. Upon arriving at the address, a woman exited the residence and informed Officer Perry that a blue truck was parked behind the house.

¶ 3. As Officer Perry approached the truck, he shined his flashlight and could “clearly” observe Cantrell coming from the side of the house and walking .toward the blue truck. Officer Perry testified that he tried to approach Cantrell, but Cantrell “was trying to elude [him] or get away from [him].” Officer Perry testified that he then observed two more people inside of the truck, so he drew his gun and ordered the two passengers and Cantrell to put their hands in the air. Officer Perry stated that at that time, Cantrell reached into his right pants pocket, removed something, and threw, it on the ground. Officer Perry maintained his attention on Cantrell and the two passengers in the truck and radioed for backup.

¶ 4. Several other police officers arrived on the scene in response to Officer Perry’s call for backup, including Officer Joe Smith. After Officer Smith arrived, Officer Perry directed him to remove two passengers from the-truck while Officer Perry handcuffed Cantrell. Officer Perry informed Officer Smith that Cantrell had removed an item from his pants pocket and thrown it onto the ground approximately six to ten feet away from the truck.

¶ 5. Officers Smith and Perry searched the area where Officer Perry observed Cantrell throw the item from his pocket. The officers found two syringes, one of which contained a clear substance. Officer Perry testified that he also found a screwdriver with fresh paint on it located approximately twenty feet from the vehicle and approximately twenty-four feet away from the syringes.

¶6. After finding the syringes, Officer Perry called Officer Michael Melton, a nar-cotíes officer, who arrived at the scene and collected the syringes. Officer Melton testified that he placed the syringes in evidence packaging and conducted a field test on the syringe that contained a crystalline substance. Officer Melton testified that the field test returned a positive result for methamphetamine, so Officer Melton sent that syringe to the crime lab for further testing. Officer Melton explained that the other syringe was empty, with the plunger pushed all the way in, and he did not send it to the crime lab.

¶ 7. Gary Fernandez, a drug analyst at the Mississippi Forensics Laboratory in Batesville, Mississippi, testified as an expert witness in the area of forensic science. Fernandez testified that after the laboratory received the syringe for testing, drug analyst Johnnie Bennett performed the necessary tests on the substance contained in the syringe. After Bennett completed the tests, he submitted all of his paperwork to Fernandez. Fernandez explained that he was the technical reviewer on the case, and, therefore, he had reviewed all of the tests Bennett performed. Fernandez testified that Bennett had performed the tests on the syringe correctly, and he agreed with Bennett’s finding that the syringe contained .168 grams of methamphetamine, a Schedule II controlled substance.

¶ 8. A Bolivar County grand jury indicted Cantrell for one count of possession of methamphetamine pursuant to Mississippi Code Annotated section 41-29-139(c) (Supp. 2016). Cantrell’s indictment reflected his status as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2016) and as a second and subsequent offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2013).

¶ 9. A trial was held on May 20, 2016. At the close of the State’s argument, Cantrell made a motion for a directed verdict, which the trial judge denied. The jury ultimately returned a verdict of guilty, and the trial court sentenced Cantrell to the maximum sentence of six years in the custody of the MDOC, without eligibility for parole. The trial court ordered Cantrell’s sentence to run consecutively to all sentences previously imposed.

¶ 10. Cantrell filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied Cantrell’s posttrial motions. Cantrell now appeals.

STANDARD OF REVIEW

¶ 11. When determining whether a jury verdict is against the overwhelming weight of the evidence, “[t]his Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Sanders v. State, 32 So.3d 1214, 1217 (¶ 10) (Miss. Ct. App. 2009); Whitlock v. State, 47 So.3d 668, 675 (¶ 20) (Miss. 2010). This Court has held that “[o]nly in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.” Id.

DISCUSSION

¶ 12. Cantrell argues that he is entitled to a new trial, as the verdict herein was clearly against the overwhelming weight of the evidence. Cantrell specifically asserts that the evidence presented at trial failed to establish beyond a reasonable doubt that Cantrell ever possessed the syringe containing methamphetamine.

¶ 13. We recognize that “[a] motion for a new trial challenges the weight of the evidence and is reviewed by an abuse-of-discretion standard.” Derouen v. State, 994 So.2d 748, 752 (¶ 11) (Miss. 2008). Upon review, this Court will not disturb a jury verdict unless “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Id.

¶ 14. Cantrell submits that the jury herein convicted him based solely on Officer Perry’s testimony. At trial, Officer Perry testified that he observed Cantrell “reach into his pocket and [throw] something out of his pocket onto the ground.” Cantrell asserts that Officer Perry misled the jury, stating that after Officer Perry first testified that he observed no other items in the vicinity where the syringes were found, Officer Perry later admitted that he found a screwdriver on the ground. Cantrell claims that Officer Perry testified that he could not tell what type of item Cantrell threw on the ground. Cantrell further asserts that Officer Perry admitted that it was dark outside when he observed Cantrell throw something and when he found the syringes.

¶ 15. The Mississippi Supreme Court has held that “the jury is the sole judge of the credibility of witnesses, and the jury’s decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict.” Whitlock, 47 So.3d at 675 (¶ 21). In the present case, the record reflects that Officer Perry testified that he was able to clearly identify Cantrell at the scene. Officer Perry observed Cantrell remove something from his pants pocket and throw it. Once backup arrived, and after Officer Perry handcuffed Cantrell, Officer Perry searched the area where he saw Cantrell throw the item, and he found two syringes. Officer Perry admitted to finding a screwdriver at the scene, but he testified that the screwdriver was not located in the same area as the syringes; rather, it was on the ground approximately twenty-four feet away from the syringes. Accordingly, the record reflects substantial evidence that Cantrell possessed the syringes, one of which contained methamphetamine.

¶ 16. Cantrell also argues that no physical evidence exists to show that he possessed the syringes. Cantrell submits that Officer Melton admitted at trial that he did not dust the syringes for fingerprints nor instruct the crime lab to dust the syringes for fingerprints. The supreme court has found that “the testimony of a single uncorroborated witness is sufficient to sustain a conviction.” Id. at 676 (¶ 22) (citing Derouen, 994 So.2d at 752 (¶ 9)). As stated, we find that the record before this Court contains substantial and believable evidence that Cantrell possessed the syringe containing methamphetamine.

¶ 17. In accepting the evidence supporting the jury’s verdict as true, we cannot find that the verdict is so against the overwhelming weight of the evidence as to sanction an unconscionable injustice. See Sanders, 32 So.3d at 1217 (¶ 15). Therefore, we find no abuse of discretion by the trial court in denying Cantrell’s motion for a new trial. See id. This issue lacks merit.

¶ 18. AFFIRMED.

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

      . The record reflects that Cantrell did not testify at trial.


author: LEE, C.J., ISHEE, J.,

text:
    William W. WILLIAMS, Appellant v. Ursel WILLIAMS, Appellee
    NO. 2016-CA-00413-COA
    Court of Appeals of Mississippi.
    08/22/2017

      ATTORNEY FOR APPELLANT: MICHAEL . CLAYTON BAREFIELD, LONG BEACH
    ATTORNEY FOR APPELLEE: SHAKITA LANETTE TAYLOR, HAT-TIESBURG
   LEE, C.J.,

FOR THE COURT:

¶1. In this,domestic-relations case, we must determine whether the chancellor properly granted Ursel Williams’s request for separate maintenance from her husband, William Williams (Wayne). We must also determine whether the chancellor erred in.denying Wayne’s request for a divorce from Ursel on the ground of habitual cruel and inhuman treatment. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. Ursel and Wayne married in October 1983. Wayne left the marital home in December 2013, which prompted Ursel to file a complaint in August 2014 for separate maintenance. In December 2014, the Lamar County Chancery Court entered a temporary support order awarding Ursel separate maintenance: Wayne then filed a counterclaim for divorce alleging habitual cruel and inhuman treatment. After a trial, the chancellor denied Wayne’s claim for divorce, and granted separate maintenance to Ursel. Wayne now appeals.

FACTS

¶ 3. Ursel and Wayne married in 1983, later settling in Jones County, Mississippi. Wayne is a disabled veteran. Wayne testified that he has a variety of illnesses and is in poor health. Ursel testified that she also has health issues. According to Ursel, her health renders her unable to work, but she has not been deemed medically disabled and has not actively sought employment in over six years. The parties admittedly have a tumultuous relationship—Wayne described their relationship as “roommates” who argued constantly.

¶ 4. Wayne testified that in March 2012, September 2012, August 2013, and December 2013, he had heart trouble while at the marital home, and that in each instance, Ursel refused to take him to the hospital. On three of those occasions, Wayne stated that he had to rely on others for transport to receive medical treatment, namely Debris Williams (no relation) and Michael Murdoch. In December 2013, however, Wayne testified that he had to drive himself on his motorcycle to the hospital in Hattiesburg, Mississippi, from the marital home in Moselle, Mississippi. Instead of returning home following his release from the hospital, Wayne instead moved into Debris’s home. Wayne testified that at one time he had a romantic relationship with Debris prior to his marriage to Ursel, but his current relationship with Debris was platonic. Ursel implied that Wayne was having an affair during the marriage.

STANDARD OF REVIEW

¶ 5. It is well settled that appellate courts are bound by a limited standard of review in domestic-relations matters. Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss. 1994). The Mississippi Supreme Court has held that a chancellor’s findings of fact “will generally not be overturned by this Court on appeal unless they are manifestly wrong.” Fancher v. Pell, 831 So.2d 1137, 1140 (¶ 15) (Miss. 2002) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss. 1989)). The chancellor must have been manifestly wrong or clearly erroneous, or have applied an erroneous legal standard for the findings to be overturned. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss. 2000). “For questions of law, our standard of review is de novo.” Shoffner v. Shoffner, 909 So.2d 1245, 1249 (¶ 11) (Miss. Ct. App. 2005).

DISCUSSION

I. Separate Maintenance

¶ 6. Wayne asserts that the chancellor erred in awarding Ursel separate maintenance. During discovery, Wayne sent requests for admissions to Ursel, who failed to timely answer. As a result, the chancellor deemed the requests admitted. Because the requests were deemed admitted, Wayne argues that Ursel was prevented from proving the essential elements of her separate-maintenance claim. Wayne objected to this issue during trial when Ursel began giving contradictory testimony regarding Wayne’s refusal to support her. The chancellor allowed both parties to offer testimony regarding Wayne’s financial support.

A. Requests for Admissions

¶ 7. Rule 36 of the Mississippi Rules of Civil Procedure governs requests for admissions. The rule states, in pertinent part, that a matter will be deemed admitted if the party upon whom the request was served does not timely respond or file an objection addressed to the matter. M.R.C.P. 36(a). A timely response equates to one being made within thirty days. See id. Thereafter, the matter is conclusively established unless the court permits the admission’s withdrawal or amendment. M.R.C.P. 36(b). “A matter that is deemed admitted does not require further proof.” Locklear v. Sellers, 126 So.3d 978, 981 (¶ 7) (Miss. Ct. App. 2013). Still, while “Rule 36 is to be applied as written, ... ‘it is not intended to be applied in Draconian fashion.’ ” In re Dissolution of Marriage of Leverock & Hamby, 23 So.3d 424, 432 (¶ 28) (Miss. 2009) (quoting DeBlanc v. Stancil, 814 So.2d 796, 801-02 (¶ 26) (Miss. 2002)). Specifically, “[a] certain amount of discretion is vested in the [chancellor] with respect to whether he or she will take matters as admitted.” Earwood v. Reeves, 798 So.2d 508, 514 (¶ 19) (Miss. 2001) (citation omitted).

¶8. The problem here is that the admissions produced contradictory results. Some of the requests asked Ursel to admit that: the separation was her fault, Wayne did not refuse to support her, and Wayne did not abandon her. However, another request asked Ursel to admit that “there is no significant conduct on [y]our part that negatively impacts the enjoyment of the marriage contract.” Ursel obviously admitted to this- statement in her untimely response. As such, we fail to see how the matter could be conclusively established as Wayne argues; thus, it was within the chancellor’s discretion to rely on the trial testimony to resolve any conflicts. Furthermore, the chancellor recognized that it was within her discretion to review the reason for Ursel’s failure to timely answer the requests for admissions. The chancellor found the delay of thirty-three days was not “critical,” and we can find no abuse of discretion in this instance. The dissent states that Wayne’s requests for admissions were deemed admitted for Ur-sel’s failure to timely reply and that the contradictory admission does not encompass the essential elements of Ursel’s separate-maintenance claim. However, the dissent concedes that it is within the chancellor’s discretion whether to take matters as admitted. In this instance, we cannot find error by the chancellor.

B. Amount of Separate Maintenance

¶9. In the alternative, Wayne argues that the chancellor erred in awarding $600 per month in separate maintenance to Ursel and ordering him to pay the mortgage of $365 per month. A chancellor may award separate maintenance when (1) the parties have separated without fault by the wife and (2) the husband has willfully abandoned the wife and refused to support her. Jackson v. Jackson, 114 So.3d 768, 775 (¶ 17) (Miss. Ct. App. 2013). “[A] wife is not required to be totally blameless to allow an award of separate maintenance, ‘but her (mis)conduct must not have materially contributed to the separation.’ ” Daigle v. Daigle, 626 So.2d 140, 145 (Miss. 1993) (quoting Lynch v. Lynch, 616 So.2d 294, 296 (Miss. 1993)). There are six factors a chancellor should consider in determining the amount of separate maintenance to be awarded: (1) the parties’ health; (2) the parties’ combined earning capacity; (3) the reasonable needs of the spouse requesting separate maintenance and any children; (4) the necessary living expenses of the payor; (5) the fact that the payee spouse has use of the marital home and furnishings; and (6) any other pertinent facts. Id.

¶ 10. Although the chancellor did not explicitly list each factor, her findings indicate that she did consider them. The chancellor reviewed the parties’ financial statuses, including their earning capacity, Wayne’s living expenses, and Ursel’s financial needs. The chancellor noted that Wayne admitted the following: he willfully abandoned the marital home, Ursel had asked him to return to the marital home, and he adamantly refused to return. The chancellor concluded that Wayne’s support of Ursel since the separation had been “haphazard” at best, even after the temporary support order was entered in December 2014. Although admitting that they fought constantly, Ursel testified that she loved Wayne and wanted him to return to the marital home. Ursel further testified that Wayne was not supporting her financially, that he had “changed the bank accounts and left me no money, no nothing, and I couldn’t pay the mortgage.” Ursel stated she was unable ■ to work and received help with her groceries and gasoline from local charities. Ursel testified as follows:

I have bad asthma, ... bad arthritis, ... and my knee—my meniscus was torn and ... I [am] supposed to have [a] knee replacement. I can’t go nowhere; I can’t go to the hospital. I have nobody to take care of me. I have no friends. Nobody. And, you know, when he left me all the time on the weekends alone, I got upset and I moved to my bedroom .... I feel safe in the bedroom, I have my .TV, my dog,.you know. I had nothing else no. more. When [Wayne] was home, he sleep[s] until three or four o’clock in the afternoon.

¶ 11. The chancellor clearly found Ur-sel’s testimony more credible than Wayne’s testimony. In this instance, we cannot find the chancellor was manifestly wrong or clearly erroneous in awarding Ursel separate maintenance.

II, Habitual Cruel and Inhuman Treatment

¶ 12. Wayne asserts that the chancellor erred in denying his claim for divorce because he proved by a preponderance of the evidence habitual cruel and inhuman treatment by Ursel. This ground for divorce is established by .evidence that the conduct of the spouse either:

(1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Rakestraw v. Rakestraw, 717 So.2d 1284, 1287 (¶ 8) (Miss. Ct. App. 1998)(citation omitted). Here, Wayne was required to prove habitual cruel and inhuman treatment by a preponderance of the evidence. Shavers v. Shavers, 982 So.2d 397, 403 (¶ 35) (Miss. 2008). Furthermore, “[t]he party alleging cruel and 'inhuman treatment typically must corroborate the testimony.” Id.

¶ 13. The record clearly indicates that the parties did not get along—Wayne described their relationship as “roommates” who argued constantly—but this is not enough to meet the burden required for a divorce based on habitual cruel and inhuman treatment. “Our cases require more than mere unkindness, rudeness, or incompatibility to support the granting of a divorce on the grounds of cruel and inhuman treatment.” Stone v. Stone, 824 So.2d 645, 646 (¶ 4) (Miss. Ct. App. 2002). In any event, the conduct generally “must be routine and continuous.” Lomax v. Lomax, 172 So.3d 1258, 1261 (¶ 6) (Miss. Ct. App. 2015); see also Burnett v. Burnett, 271 So.2d 90, 92 (Miss. 1972) (The “conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself.”).

¶ 14. Wayne’s testimony’ focused on four occasions in the two years prior to the couple’s separation when he alleged Ursel refused to take him to the hospital: in March 2012; September 2012; August 2013; and December 2013. According to Wayne, he suffered from a litany of medical issues, and her refusal to take him to the hospital on these occasions created an apprehension of danger. Wayne said that in December 2013, he asked Ursel for a ride to the hospital and she allegedly told him, “You can sit there and die, you S.O.B.” Ursel admittedly refused to take Wayne to the hospital on one occasion, although the testimony is not clear as to when this occurred. She testified that he had been gone all weekend, insinuating that Wayne was with another woman. Ur-sel stated that she told him to find someone else to drive him, and Wayne! did so. On the other three occasions, Ursel testified that Wayne never asked for her help. Ursel stated she was unable to drive him to the hospital in August 2013 due to a broken arm. Wayne also admitted that since 2000, he often had to be taken to the hospital due to his poor health, but that other than the four times previously mentioned, Ursel always drove him to the hospital.

¶ 15. “This Court requires corroboration of the offensive conduct complained of by the moving party when seeking a divorce based on the ground of habitual cruel and inhuman treatment, éx-cept in unusual cases such as isolation.” Jones v. Jones, 43 So.3d 465, 478 (¶ 30) (Miss. Ct. App. 2009). Additionally,' “the corroborating evidence need not be sufficient in itself to establish the ground,” but rather “need only provide enough supporting facts for a court to conclude that the plaintiffs testimony is true.” Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d], at 74 (2005). Wayne called two corroborating witnesses—Michael and Deloris.

¶ 16. Michael, Wayne’s friend, testified that he took Wayne to the hospital two times in 2012. On one of these occasions, Michael stated that he was at Wayne’s house when Wayne complained of chest pain. Michael said Wayne asked for a ride to the hospital. Michael testified that he did not see Ursel at the house either time he drove Wayne to the hospital, so he was unable to corroborate Wayne’s testimony.

II17. Deloris testified that she drove Wayne to the hospital in August- 2013. According to Deloris, Wayne told her Ur-sel would- not drive him to the hospital. When Deloris arrived, she said Ursel told Wayne, “I hope you die.” Deloris did not hear Ursel refuse to drive Wayne to the hospital. Deloris testified to the couple’s contentious relationship, admitting that she had heard both Wayne and Ursel call each other derogatory names. After leaving the marital home, Wayne began renting a room in Debris’s house. Although Wayne-and Deloris ■ admittedly had a romantic relationship prior to Wayne’s- marriage to Ursel, both stated that they were platonic roommates.

¶ 18. The dissent contends that Wayne met his burden of proof since the testimó-ny of both Ursel and Deloris corroborated his claim. In regard to Ursel, the dissent claims she admitted to refusing to transport Wayne to the hospital in August 2013, thus corroborating Wayne’s testimony on that one occasion. However, the testimony was that Ursel could not physically drive him to the hospital due to a broken arm, not that Ursel refused to drive him. Since much of Wayne’s testimony was confusing in regard to the material facts, we cannot find the chancellor erred in finding Ursel’s testimony more credible in this instance. In regard to Deloris, her testimony only corroborates the parties’ contentious relationship. Her testimony regarding the August 2013 trip to the hospital is based upon Wayne’s statement that Ursel would not drive him to the hospital—Deloris did not hear Ursel refuse. And much of Debris’s testimony was unclear as to the- timing of these incidents. \

¶ 19. Our courts have consistently refused to sanction divorces based on habitual cruel and inhuman treatment where much more serious conduct occurred. See Stennis v. Stennis, 464 So.2d 1161, 1162 (Miss. 1985) (insufficient evidence of habitual cruel and inhuman treatment where a husband slapped his wife, put her in a headlock, and washed her mouth out with soap); Gwathney v. Gwathney, 208 So.3d 1087, 1090 (¶ 8) (Miss. Ct. App. 2017) (affirmed a chancellor’s finding that a wife lacked sufficient corroborating evidence to prove her husband physically abused her); Reed v. Reed, 839 So.2d 565, 571 (¶ 26) (Miss. Ct. App. 2003) (reversed a chancellor’s decision to grant a divorce, notwithstanding physical violence and threats); Wilbourne v. Wilbourne, 748 So.2d 184, 187 (¶ 5) (Miss. Ct. App. 2000) (affirmed a chancellor’s denial of a divorce despite occasional physical violence, finding the evidence insufficient to prove habitual cruel and inhuman treatment).

¶ 20. The chancellor found Wayne’s testimony was not credible, and the testimony of his corroborating witnesses was inconsistent at best. The chancellor believed Wayne’s apprehension was due to his poor health and marital strife, not due to Ur-sel’s purported refusal to drive him to the hospital. As previously stated, “mere unkindness, rudeness, or incompatibility” is not enough to support a cruel-and-inhuman-treatment divorce. Stone, 824 So.2d at 646 (¶ 4). Keeping in mind our limited standard of review, we cannot find the chancellor’s decision to deny Wayne a divorce was manifestly wrong or clearly erroneous.

¶ 21. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY WILSON, J. FAIR, J., NOT PARTICIPATING.

ISHEE, J.,

DISSENTING:

¶22. The majority would uphold the chancellor’s findings as to both Ursel’s award of separate maintenance, and the dismissal of Wayne’s counterclaim for divorce on the ground of habitual cruel and inhuman treatment. Finding error below, however, I respectfully must dissent.

I. Separate Maintenance

¶ 23. As the majority acknowledges, Wayne asserts that the chancellor erred in awarding Ursel separate maintenance because the court disregarded requests for admissions that had previously been deemed admitted for failure to timely respond; as a result, he argues the matters were conclusively established, thus preventing Ursel from proving the essential elements of her claim. I agree.

¶24. Regarding separate maintenance, our supreme court has stated:

[T]he jurisdictional basis of a separate-maintenance decree stems from equitable principles first laid down in Mississippi in Garland v. Garland, 50 Miss. 694 (1874). The very power of the court to grant separate maintenance was based upon the following two requirements: (1) a separation without fault on the part of the wife, and [ (2) ] the husband’s willful abandonment of her with refusal to provide support to her. Rodgers [v. Rodgers ], 349 So.2d [540,] 541 [ (1977) ]. The Rodgers court explained that these two requirements must be satisfied in order for the court to possess the equitable power to order separate maintenance. Id.

Jackson v. Jackson, 114 So.3d 768, 775 (¶ 17) (Miss. Ct. App. 2013) (emphasis added). Our supreme court has also held: “While the law does not require a wife who leaves her husband to be blameless, misconduct on her part which materially contributes to the separation, so that it may be said that the fault of the wife is equal to or greater than that of the husband, ... is a defense to her suit for separate maintenance.” King v. King, 246 Miss. 798, 152 So.2d 889, 891 (1963) (citing Hilton v. Hilton, 88 Miss. 529, 41 So. 262 (1906)).

¶ 25. Following the requests for admissions submitted by Wayne to Ursel, Ursel failed to timely respond and, therefore, the court deemed the requests admitted. Certain requests deemed admitted stated the following:

REQUEST NO.l: Please admit that [y]our course of conduct is a material factor in the separation of the parties at least equal to, if not greater than, that of [y]our husband.
REQUEST N0.4: Please admit that separation of the parties was not without fault bn [y]our part.
REQUEST N0.5: Please admit that [y]our husband did not and has not willfully abandoned [y]ou with refusal to provide support to [y]ou.

¶ 26. As noted by the majority, Rule 36 of the Mississippi Rules of Civil Procedure governs requests for admissions. Under the rule, a matter will be deemed admitted if the party the request was served upon does not timely respond or file an objection. M.R.C.P. 36(a). A timely response is one made within thirty days. See id. The matter is then conclusively established unless the court allows a withdrawal or amendment. M.R.C.P. 36(b). “A matter that is deemed admitted does not require further proof.” Locklear v. Sellers, 126 So.3d 978, 981 (¶ 7) (Miss. Ct. App. 2013). Most important here, however, is the guidance set forth in the advisory committee’s note to Rule 36, which reads:

Rule 36 will be enforced according to its terms; matters admitted or deemed admitted upon the responding party’s failure to timely respond are conclusively established unless the court, within its discretion, grants a motion to amend or withdraw the admission. “Any admission that is not amended or mthdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against' whom it is directed offers more credible evidence.” DeBlanc [v. Stancil], 814 So.2d [796], 801 [(Miss. 2002) ] (citing 7 James W. Moore, et al., Moore’s Federal Practice ¶ 36.03[2], at 36 (3d ed. 2001)).

M.R.C.P. 36 advisory committee’s note to 2014 amendment (emphasis added).

¶27. Thus, because Wayne’s requests for admissions were deemed admitted by the chancellor, he argues that it was erroneous for the chancellor to ignore those admitted requests, and instead rely upon trial testimony regarding the merits of Ursel’s separate-maintenance claim. I agree, as Rule 36 explicitly prohibits such. Wayne objected to this issue during trial when Ursel began giving contradictory testimony regarding Wayne’s refusal to support her; yet, the chancellor stated:

Well, the only problem is the court can allow [the requests] to be confessed, but when I’ve heard something contrary to the testimony from [Wayne,] namely, I left and said I’m not coming back, then I have to proceed with what I’ve heard in sworn testimony.

As the advisory-committee note makes clear, however, “[a]ny admission that is not amended or withdrawn cannot be rebutted by contrary testimony or ignored by the court even if the party against whom it is directed offers more credible evidence.” Id. Therefore, because the record reveals no such motion to amend or withdraw was made by Ursel, the admissions could neither be ignored nor rebutted by testimony at trial. See id. Furthermore, the fact that Wayne offered contradictory testimony— namely, that he did willfully abandon the marital home (for Ursel’s refusal to assist him during medical emergencies)—is of no consequence, as the admissions are only binding upon- the party against whom they are offered. See Shell Oil Co. v. Murrah, 493 So.2d 1274, 1277 (Miss. 1986) (holding that the purpose of Rule 36 is to bind the party making the admission, not the party requesting it). Thus, the chancellor’s statement, wherein she valued trial testimony over the requests for admissions, was improper, as she did not give the required weight to the respective admissions.

¶ 28. The majority, however, finds otherwise. Instead, it would affirm the chancellor’s disregarding of Rule 36. In doing so, it points to Wayne’s third request for admission, which stated: “Please admit that there is no significant conduct on [y]our part that negatively impacts the enjoyment of the marriage contract.” Relying on this request alone, the majority argues that the' admitted requests produced overall contradictory results—therefore, the matter of Ursel’s separate-maintenance claim was not conclusively established. As a result then, the majority asserts the chancellor was well within her discretion to rely on trial testimony to resolve any conflicts found within these requests. Citing no authority to support this proposition (and having found none myself), however, I find this argument wholly unpersuasive.

¶ 29. Put simply, the request from which the majority erects its argument is not an essential element of a claim for separate maintenance. See Jackson, 114 So.3d at 775 (¶ 17). And so, whether contradictory or not, under Rule 36, the requests were all admitted. And though “Rule 36 provides a harsh penalty for the failure to comply,” requests four and five of those deemed admissions encompassed the essential elements of Ursel’s claim for separate maintenance—a claim upon which she bore the ultimate burden of proof. Hawkins v. Hale, 185 So.3d 1076, 1078 (¶ 7) (Miss. Ct. App. 2016).

¶ 30, Thus, Wayne’s requests for admissions were deemed admitted for Ursel’s failure to timely reply. The power'to deem those requests admitted was well within the chancellor’s discretion, which we clearly acknowledge. See Scoggins v. Baptist Mem’l Hosp,-Desoto, 967 So.2d 646, 648 (¶ 8) (Miss. 2007) (holding “[a] certain amount of discretion is vested in the trial judge with respect to whether he' or she will take matters as admitted”). To this point, however, the majority apparently mischaracterizes my acknowledgment that a chancellor possesses this discretion and conflates this acknowledgment with my overall conclusion here that the chancellor erred—to be clear, I find no abuse of discretion on the chancellor’s part in deeming these requests admitted for failure to timely reply. It appears, however, that the majority blends this discretion “pre-admit-tance” .with that of “post-admittance.” Make no mistake, the - chancellor here deemed all the requests admitted—and that being the case, she could, not pick and choose which requests to keep or disregard post-admittance (as the majority seems to assert); only upon a permitted motion to amend, or withdraw could those originally admitted requests be overlooked by the court. See M.R.C.P. 36(b). .

¶ 31. As such, being conclusively established, and .with no motion to amend or withdraw having been made, I find the chancellor committed reversible error—in both her disregarding of the admitted requests for admissions- as well as her subsequent awarding of separate maintenance to Ursel. To that end, I would reverse and render as to this issue, and in doing -so, urge this Court to recall that a rule not enforced is no rule at all. -

II. Habitual Cruel and Inhuman Treatment

¶ 32. In Rakestraw v. Rakestraw, 717 So.2d 1284 (Miss. Ct. App. 1998), this Court reiterated the long-held principle that:

Habitual cruel and inhuman treatmént may be established by a showing of conduct that either (!) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to "make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Rakestraw, 717 So.2d at 1287 (¶ 8) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss. 1993)). “[S]uch conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself.” Burnett v. Burnett, 271 So.2d 90, 92 (Miss. 1972). “Although the cruel and inhuman treatment usually must be shown to have been ‘systematic and continuous,’ a single incident may provide grounds for divorce.” Rakestraw, 717 So.2d at 1287 (¶ 8). “While ordinarily one act or an isolated incident will not establish a charge of habitual cruel and inhuman treatment, one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment.” McKee v. Flynt, 630 So.2d 44, 48 (Miss. 1993). “[T]he charge ‘means something more than unkindness or rudeness or mere incompatibility or want of affection.’ ” Rakestraw, 717 So.2d at 1287 (¶ 8) (quoting Daigle, 626 So.2d at 144). Habitual cruel and inhuman treatment must be shown by a preponderance of the evidence. Shavers v. Shavers, 982 So.2d 397, 403 (¶ 35) (Miss. 2008).

¶ 33. “The party alleging cruel and inhuman treatment typically must corroborate the testimony.” M Nonetheless, “[c]orrob-orating evidence need not be sufficient in itself to establish habitual cruelty,' but rather need only provide enough supporting facts for a court to conclude the plaintiffs testimony is true.” Smith v. Smith, 90 So.3d 1259, 1263 (¶ 12) (Miss. Ct. App. 2011) (citing Jones v. Jones, 43 So.3d 465, 478 (¶ 30) (Miss. Ct. App. 2009) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005))).

¶ 34. On appeal, Wayne asserts that the chancellor erred in denying his claim for divorce because he proved, by a preponderance of -the evidence, with corroborated testimony, that Ursel’s conduct endangered his life; limb, and health, thus creating a reasonable apprehension of such danger, and thereby rendering the relationship unsafe for him. Based upon the evidence presented surrounding Wayne’s medical emergencies, I agree.

¶ 35. Wayne testified that at four separate times, he experienced medical emergencies while at home, and that Ursel refused to assist him in seeking medical treatment during each instance. Though Ursel denied refusing to assist Wayne on three of those occasions, she corroborated Wayne’s testimony by admitting that she refused to assist Wayne during at least one of those times. Wayne testified further that on three of those occasions—other than the instance in which Ursel admitted to refusing—he had to rely on Deloris, Murdoch, and himself for transport to receive emergency medical treatment.

¶ 36. At trial, Deloris testified that while at the Williamses’ home in February 2013, Wayne began experiencing trouble breathing. When Wayne asked for Ursel’s assistance with his oxygen, Deloris stated that Ursel told Wayne, “I will be glad when you go ahead and die and get it over with.” Deloris further testified that later, around August 2013, Wayne called her requesting assistance because Ursel would not help him while he was having severe chest pains. Deloris also said that when she arrived to pick up Wayne, Ursel yelled out at him, “I hope you die,” as well as other explicit language. In addition, Deloris testified that, while with Wayne and Ursel following a medical procedure of Wayne’s, Ursel asked the doctor, “Why didn’t you just let him die?” Lastly, Deloris stated that Ursel threatened Wayne, and told him “the next time he got on his motorcycle, she hoped he had a wreck and die[d].” Murdoch also testified to assisting Wayne at various times for emergency medical needs, but never saw Ursel on those occasions, and thus, did not provide corroborating testimony with respect to her alleged conduct.

¶ 37. During the fourth and final occasion, however, Wayne experienced a heart attack. He testified that Ursel told him, “You can sit there and die, you S.O.B.” With no available assistance, he was forced to drive himself on his motorcycle from Moselle, Mississippi, to Hattiesburg, Mississippi. Rather than return home following his release from the hospital, Wayne opted to reside at Deloris’s home, and has resided there since. Following the conclusion of testimony, the chancellor dismissed Wayne’s claim for divorce, and stated:

Well, you know, let me just tell you both, I know what the burden is for getting a divorce on the grounds of ha-bitúale ] cruel[ ] and inhuman treatment, and it’s just not there. Your client has failed to meet any showing with his corroborating witnesses .... [Wayne] has testified that ... since he last worked ... he has had problems with his heart, problems with his back, problems with C.O.P.D. Those illnesses themselves would have anybody apprehensive of continuing to live. Now his perception of what’s going on, it appears that his own testimony and the witnesses showed that every time he thought he was in a crisis, he could call either Mr. Murdoch ... [or Wayne] has a [motorcycle] that could have been traded for a car where he could take himself, or he had ... [Deloris] ... sitting in his house, who on occasion is available. So the Court doesn’t see—if there was a brandishment of guns, knives, something of that effect .... [T]hey both cuss and fuss and that’s it. And I don’t see that being habitual. And I don’t see that your claim for divorce is meritorious based on what the current law is, and that [m]otion [t]o [dismiss is granted. All right, so y’all will stay married to each other.

¶ 38. I disagree with this ruling by the chancellor. We are reminded that when analyzing a divorce based on habitual cruel and inhuman treatment, “there is a dual focus on the conduct of the offending spouse and the impact of that conduct on the offended spouse.” Smith, 90 So.3d at 1263 (¶ 11). “Evaluating the impact on the offended spouse is a subjective inquiry. The focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person.” Id. Lastly, “[w]hen there is no violent conduct involved, we review the facts on a case-by-case basis, taking into account the frequency and severity of the conduct, as well as the impact on the plaintiff.” Id. at (¶ 13).

¶39. Reviewing the record before this Court, I would submit that Wayne proved, by a preponderance of the evidence and through corroborated testimony, that the effect of Ursel’s conduct endangered the life, limb, and health of Wayne. Between the dates of March 2012 and December 2013, Wayne testified to having four medical emergencies—in all four, Ursel did not provide any assistance. Ursel corroborated at least one of these occasions by admitting she refused to assist him during a life-threatening emergency. The fact that Wayne was fortunately able to rely on the kindness of others when in times of need is immaterial. Likewise, whether he could have chosen a more suitable means of transportation than his motorcycle is irrelevant to our analysis. What is more, the chancellor’s commentary related to Wayne’s illnesses—that such ailments would cause any person to have an apprehension of living—is misguided; the standard is not viewed in the objective, but rather the subjective. Id. at (¶ 11).

¶ 40. The majority, however, would find the facts of this case do not amount to habitual cruel and inhuman treatment. I respectfully disagree for all the reasons listed herein. In particular, focusing on the frequency and severity of Ursel’s conduct with respect to the subjective effect it had on Wayne, I find that Ursel’s conduct endangered the life, limb, or health of Wayne, creating a reasonable apprehension of such danger,'and thus, rendering the relationship unsafe for him. This is because it was “reasonably expected whenever occasion or opportunity present[ed] itself’ that Ursel would not aid Wayne. See Burnett, 271 So.2d at 92. Refusing to assist a spouse during severe, life-threatening medical emergencies is surely of such sufficient gravity to establish a charge of habitual cruel and inhuman treatment. As a result, I would find the chancellor erred in dismissing Wayne’s counterclaim for divorce, and therefore, reverse and remand as to this issue.

CONCLUSION

¶ 41. Upon careful review of the record, I would find the chancery court committed reversible error in both the granting of Ursel’s award of separate maintenance, and the dismissal of Wayne’s counterclaim for divorce on the grounds of habitual cruel and inhuman treatment. For these reasons, I would reverse and render the judgment awarding separate maintenance, and reverse and remand the-judgment dismissing Wayne counterclaim for divorce.

WILSON, J., JOINS THIS OPINION IN PART.

      . Wayne produced two hospital bills as evidence; however, both bills are for hospital services rendered on August 4, 2015—almost two years after Wayne left the marital home.