author: GREENLEE, J.,

text:
    Stephen J. BULLOCK, Appellant v. Alaina L. BULLOCK, Appellee
    NO. 2015-CA-01258-COA
    Court of Appeals of Mississippi.
    02/28/2017

      ATTORNEY FOR APPELLANT: DAVID ALAN PUMFORD
    ATTORNEYS FOR APPELLEE: YVETTE LOUISE STELLY, HERBERT J. STELLY
    BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.
   GREENLEE, J.,

FOR THE COURT:

¶1. Stephen and Alaina Bullock married in 1999, separated in 2007, and divorced on April 21, 2015. Stephen appeals from the final judgment of divorce, arguing that the trial court erred in the classification and division of certain assets, in refusing to admit certain proffered discovery, in the award of expert fees and attorney fees to Alaina, and in failing to perform a Fergu son analysis on the record. We find no error in the chancellor’s classification of marital assets or in the award of expert and attorney fees to Alaina. However, we find that the chancellor erred in failing to conduct a Ferguson analysis on the record. We therefore affirm in part, and reverse and remand in part for further proceedings.

FACTS AND PROCEEDINGS BELOW

¶2. Stephen and Alaina’s divorce trial began in June 2010. Earlier, in 2008, a temporary order had been drafted but was never entered on the court’s docket. Alai-na’s attorney wrote to Stephen’s attorney and indicated Alaina’s intent, absent objection, to use the June 2010 start date of trial as the end of accumulation of assets of the marital estate. At the start of trial, Alaina’s attorney noted that they had yet to receive responses to their request for combined discovery from Stephen. However, Alaina wished to waive receiving that discovery and move forward with trial-to keep the expense of the divorce from increasing indefinitely.

¶3. Stephen’s attorney conceded that his client had been dilatory in responding to discovery and requested a continuance, which-vyas denied. After one day of testimony, a matter came up that the ehancel-lor determined required his recusal. The trial was put on hold and a different chancellor assumed the case. On July 18, 2011, the new chancellor .entered an order compelling Stephen’s response to discovery. On August 17, 2011, the chancellor entered an order appointing a forensic accountant to produce a report evaluating the assets of the marital estate as of the date of the report. The report was issued on January 31, 2012. Alaina’s forensic accountant, Jerry Levens, also produced a report on the parties’ assets and reviewed the findings of the court-appointed accountant. Levens used the June 2010 start date of trial' as the cut-off date of accumulation of marital assets. Levens’s report was significantly broader in scope and detail than that of the court-appointed accountant. The court-appointed accountant identified and listed the assets of the parties, but did not arrive at values' for the marital homes, opine as to the net worth of the parties, or arrive at a final number. It also did not identify Stephen’s investment in Landing Gear, returns on- that investment, or the loan to Coast Cycle World.

¶4. When trial resumed in 2014, the court denied another request from Stephen for a continuance in order to conduct discovery. Both forensic accountants testi-fled at trial. The chancellor announced on the record that the contributions of both experts were credible, helpful, and operated to supplement each other.

¶5. Stephen entered the marriage with an interest in several real-estate properties. He received $22,917 for one property sold in 2000 and $67,000 for the other sold in 2003. Stephen also claimed at trial to have entered the marriage with- approximately $75,000.

¶6. Alaina entered the marriage owning a piece of real property know as the Eagle Point property. During the marriage, this property was used as collateral for a loan to purchase a marital home. At some point during the marriage, Stephen hired a contractor to build a boat ramp on the Eagle Point property, but failed to pay for the work. Alaina eventually paid the contractor’s lien from the proceeds of the sale of the property in 2003.

¶7. Later in the marriage but prior to the separation, Stephen made a $120,000 loan to his parents’ business, Coast World Cycling, and a $100,000 investment, into a business called Landing Gear. The investment had produced returns and was still producing returns at the time of trial. Stephen testified, without providing any supporting financial documentation, that he made the investment and the loan with nonmarital monies. In addition to the investment and loan, Stephen claimed to have expended nonmarital funds for other purposes, including over $47,000 for treatment for alcohol addiction. Alaina testified that Stephen also made an approximately $30,000 unsuccessful investment in a third business. Stephen acknowledged making an investment but denied that it was as much as $30,000.

¶8. Leading up to trial, Stephen had provided no written response to Alaina’s discovery request for Stephen to “produce copies of all items of physical or documentary evidence which you intend to introduce at trial on the merits in this cause.” Yet at trial, Stephen proffered as evidence checks purportedly demonstrating that, during the marriage, Alaina used marital funds to reimburse Stephen for expenses that were supposed to have been made with separate funds. The court refused to admit the evidence due to the absence of written responses to the request for discovery and also because Alaina’s attorney claimed that the discovery itself had never been delivered , to him. Later, the parties confirmed that a disorganized, unlabeled box of miscellaneous discovery had in fact been dropped off at Alaina’s attorney’s office. Stephen moved to. reopen the case to admit the evidence. At the hearing on Stephen’s motion to reopen the case, Stephen’s attorney offered for Stephen to bear the expense of any fees incurred by Alaina’s expert for evaluating the belatedly produced discovery. The court informed the parties that, if he reopened the case, Stephen would be liable for Alaina’s attorney fees related to reopening the case.

¶9. The court granted the motion to reopen the.case and ordered Stephen’s attorney to properly answer discovery immediately, to attach the discovery documents to the answers, and to give Alaina’s attorney á list of questions he intended to ask so that Alaina’s attorney could determine if those documents were in the box delivered and that Stephen’s questions were limited to such documents. Stephen never complied with this directive. After two continuances requested by Stephen, Stephen refused to attend the evidentiary hearing, instead conferring with his attorney in the court parking lot and leaving. His attorney explained to the court that Stephen was attending a mud-derby event, and provided the mud-derby brochure to the court and asserted that, in his opinion, his client’s actions were due to an apparent emotional breakdown. The court denied Stephen’s third motion for a continuance and. closed the case.

¶10. After the close of trial, the parties agreed to the classification and division of two marital homes, Alaina’s car, a timeshare, and several smaller items. By agreement of both parties, the only issues remaining for the court to decide were the classification and division of the Eagle Point property, the classification and division of the funds loaned and invested in Landing Gear and Coast Cycle World, whether to grant Alaina spousal support, and attorney fees.

¶11. The final judgment of divorce was entered on April 21, 2015. The final judgment states that, in light of the absence of a temporary order, the date of judgment would be considered as the end of the accumulation of assets of the marital estate. The court classified the Eagle Point property as nonmarital, holding that the use of Alaina’s separate property as collateral for the marital home did not operate to convert the property into marital property. The chancellor determined that Stephen failed to overcome the legal presumption that the loan and the investment had been made with marital funds and awarded Alaina a judgment against Stephen amounting to fifty percent of the loan to Coast Cycle World, and a judgment entitling her to fifty percent of received and future returns on the investment in Landing Gear. The court denied Alaina spousal support. The court ordered Stephen to pay fifty percent of Levens’s expert accounting fees related to the initial trial, and ordered Stephen to pay all of Levens’s fees and all of Alaina’s attorney fees related to reopening the case.

¶12. Stephen appeals.

DISCUSSION

¶13. A chancellor’s findings will not be disturbed upon review unless the chancellor was manifestly wrong or clearly erroneous, or applied an incorrect legal standard. A.B. v. Y.Z., 60 So.3d 737, 739 (¶ 11) (Miss. 2011). In a divorce action, chancellors first classify assets as marital or nonmarital, then equitably distribute the marital assets between the parties using the Ferguson factors as guidance. Barnett v. Barnett, 908 So.2d 833, 838 (¶ 9) (Miss. Ct. App. 2005).

I. The chancellor did not err in his classification of assets.

A. The chancellor did not err in his demarcation of the end of the marital estate.

¶14. Stephen argues that the chancellor erred in naming the date of the final judgment as the date of the end of accumulation of assets of the marital estate. The record reflects that a great deal of confusion existed throughout the whole proceeding concerning what date would be used—a confusion compounded by the absence of a temporary order prior to trial, the change of chancellors mid-trial, the use of two forensic accountants, and the fact that the trial spanned seven years. Chancellors are afforded a great deal of discretion in determining the cut-off date for accumulation of marital assets. Collins v. Collins, 112 So.3d 428, 432 (¶ 11) (Miss. 2013) (affirming chancellor’s use of date of divorce as point of demarcation). “The law in Mississippi is that the date on which assets cease to be marital and become separate assets—what we refer to ... as the point of demarcation—can be ‘either the date of separation (at the earliest) or the date of divorce (at the latest).’ ” Id. at 431-32 (¶ 9) (quoting Lowrey v. Lowrey, 25 So.3d 274, 285 (¶ 27) (Miss. 2009)).

¶15. Prior to the issuance of the chancellor’s final order, the parties agreed to limit the assets for the court’s determination to the Eagle Point property, the Landing Gear investment, and the Coast Cycle World loan. The record does not indicate, and Stephen does not submit, how the court utilizing an earlier date would make any difference to the classification of the three assets ultimately submitted for the chancellor’s determination. All facts relevant to classifying those assets occurred prior to the date of separation, which is the earliest permissible date of demarcation. On the facts of this case, we do not find that the chancellor erred in naming the date of judgment as the end of the accumulation of the marital estate.

B. The chancellor did not err in classifying the Eagle Point property as nonmarital.

¶16. We agree with the chancellor that the couple’s use of Alaina’s non-marital Eagle Point property as collateral for a loan to buy a marital home did not operate to convert the Eagle Point property into marital property. See Jones v. Jones, 904 So.2d 1143, 1146 (¶ 6) (Miss. Ct. App. 2004) (affirming chancellor’s classification of wife’s property as separate when land had been used to secure loan to build marital home). Stephen argues that, even if the use of the property as collateral was too attenuated, his efforts to improve the Eagle Point property by having a boat ramp built was sufficient activity to convert the property to marital use. Stephen contracted someone to build the boat ramp without Alaina’s permission and then did not pay for the completed work. Alaina paid off the subsequent contractor’s lien from the sale of the property. The chancellor did not abuse his discretion in finding that Stephen’s activity was insufficient use to convert the property into a marital asset. See Hankins v. Hankins, 729 So.2d 1283, 1287 (¶ 15) (Miss. 1999) (finding spouse planting trees on nonmarital land insufficient to convert land to marital property where no evidence of agreement between couple that planting trees would create marital ’interest in property and no evidence as to value of trees).

¶17. We also disagree with Stephen’s argument that the chancellor erred in failing to specifically discuss in the final order the court-appointed forensic accountant’s initial classification of the Eagle Point property as marital. That classification went directly to the disputed legal question of whether the use of the property as collateral for a loan to purchase marital property affected the status of the collateral— a question the chancellor identified and discussed in his final order. We also note that at trial the court-appointed forensic accountant stated that the court should determine how the property should be properly classified. This issue is without merit.

C. The chancellor did not err in classifying the loan to Coast Cycle World and the investment in Landing Gear as marital.

¶18. All assets earned or accrued during the course of the marriage are presumed to be marital property. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss. 1994). However, an - asset may be classified as nonmarital if it is accrued by means of one spouse’s separate funds. Ferguson, 639 So.2d at 929. The party claiming separate property classification “bears the burden of tracing the asset to a separate-property source.” Allgood v. Allgood, 62 So.3d 443, 447 (¶ 13) (Miss. Ct. App. 2011) (citation omitted).

¶19. Stephen argues that the investment in Landing Gear was improperly-classified as marital, and that the loan to Coast Cycle World was significantly less than $120,000. Stephen had the burden below to demonstrate that the funds used for the loan to Landing Gear could be traced to a nonmarital source. He was unable to provide any documentation tracing the loan and investment back to separate funds. While Stephen undeniably had some separate funds early in the marriage, the loan and investment were made years later. Stephen was unable to demonstrate that the separate funds still existed at the time of the loan and investment. At his deposition, Stephen stated that his loan to Coast Cycle World was $110,000 or $120,000. At trial he shifted his testimony to claim that it was almost half of that amount. The chancellor did not find Stephen’s testimony consistent or credible, especially given Stephen’s shifting testimony concerning a variety of expenses purportedly made with separate funds. The chancellor did not abuse his discretion in finding that Stephen failed to overcome the presumption that the loan and investment were made with marital assets, and in determining aspects of Stephen’s testimony as not credible.

II. The chancellor did not err in refusing to admit Stephen’s discovery that was produced last-minute.

¶20. After failing for a period of years to satisfy outstanding discovery requests and an order compelling discovery, Stephen delivered an unlabeled, disorganized, and unsigned-for box of discovery documents to Alaina’s attorney for use during the second half of the trial proceedings. The box of documents was not accompanied by a formal written response to the previous discovery requests. The general confusion over whether the discovery had, in fact, been delivered was understandable, as was the chancellor’s refusal to hear it, especially given Stephen’s history of repeated failures and delays in producing discovery.

¶21. Out of an abundance of caution, the trial court agreed to reopen the case to consider the evidence in the box. The court instructed Stephen’s attorney to prepare and provide ahead of time a summary of the discovery intended to be entered from the box at the hearing and the questions to be asked relevant to the evidence. This document was never produced or previewed to the other party. After two continuances requested by Stephen, Stephen refused to attend the hearing, electing instead to attend a mud-derby event. Even if the trial judge had erred in initially excluding the proffered evidence, Stephen squandered his opportunity to have the evidence admitted when he refused to attend the hearing after the case was reopened explicitly for that purpose. This issue is without merit.

III. The trial court did not err in assessing Stephen a portion of Alaina’s attorney and expert fees.

A. Attorney Fees

¶22. The chancellor awarded Alai-na attorney fees limited to the expenses of reopening the case to admit Stephen’s belatedly produced discovery. Prior to granting Stephen’s motion to reopen the case, the chancellor communicated to both parties on the record that if he granted Stephen’s motion, he would require Stephen to pay Alaina’s costs related to reopening the case. Mississippi Rule of Civil Procedure 37(e) provides:

In addition to the application of those sanctions, specified in Rule 26(d) and other provisions of this rule, the court may impose upon any party or counsel such sanctions as may be just, including the payment of reasonable expenses and attorneys fees, if any party or counsel (i) fails without good cause to cooperate in the framing of an appropriate discovery plan by agreement under Rule 26(c), or (ii) otherwise abuses- the discovery process in seeking, making or resisting discovery.

¶23. We do not find that the chancellor erred in awarding Alaina attorney fees limited to the expenses of reopening the case given that the exclusive purpose of reopening the case was to allow Stephen to cure his defective participation in the discovery process. We also note that, when arguing for the case to be reopened, Stephen’s attorney expressed a willingness for his client to bear the cost of any expert fees relating to reopening the case, that the chancellor informed all parties that he would require Stephen to pay Alaina’s attorney fees if the case was reopened, that no apparent objection was made, and that, after two continuances at Stephen’s- request, Stephen refused to attend the hearing.

B. Expert Pees

¶24. Stephen asserts that the chancellor erred in assessing him half of Levens’s expert accounting fees. In Burnham-Steptoe v. Steptoe, 755 So.2d 1225, 1236 (¶ 40) (Miss. Ct. App. 1999), this Court affirmed a chancellor’s refusal to require a husband to pay his wife’s accountant fees where a court-appointed accountant also testified, the wife’s expert based his calculations on the court-appointed accountant’s testimony, and the court could have derived the value of the asset based solely upon the court-appointed expert’s testimony. We have a different situation in the case at -hand. Here,' Alaina’s expert generated an independent report greater in scope than- that of the court-appointed accountant, a report that included identifying genuine mistakes.-in the court-appointed accountant’s report ás well-as identifying the loan and investment that constitute the disputed marital assets- on appeal. The chancellor stated- that the two experts “supplemented” each other.* Unlike in Steptoe, the contributions of'Alaina’s expert were not entirely derivative and duplicative of the work donei by the court-appointed accountant. The court relied. on the combined work of the two experts, and the court’s determination on fees has Alai-na and Stephen splitting the cost, ;of .both experts evenly. We also note - that Stephen’s chronic resistance to meaningfully participating in discovery .hampered both experts’ progress. We do not find that the chancellor abused his discretion in assessing Stephen half of Levens’s expert fees.

IV. The chancellor erred in failing to perform a Ferguson analysis when conducting the equitable distribution of property. ¡.

¶25. Stephen argues that the chancellor erred in failing to conduct a Ferguson analysis. Chancellors are required to apply the Ferguson factors-on the record when conducting an equitable distribution of marital property, and failure to do so mandates reversal. Lowrey, 25 So.3d at 280 (¶ 7); Ferguson, 639 So.2d at 928. Here, the chancellor distributed the investment in Landing Gear and thé loan to Coast Cycle World fifty-fifty between Stephen and Alaina, While this may ultimately prove to constitute an equitable distribution, failure to perform a Ferguson analysis on the record precludes meaningful appellate review. Segree v. Segree, 46 So.3d 861, 865 (¶ 10) (Miss. 2010). An equitable distribution of property does not necessarily mean an equal distribution of property. Trovato v. Trovato, 649 So.2d 815, 818 (Miss. 1995). On this issue we therefore reverse and remand for the chancellor to conduct a Ferguson analysis on the record.

CONCLUSION

¶26. We'affirm the chancellor’s classification of assets and award of expert and attorney fees. However, the chancellor erred in failing to perform a Ferguson analysis on the record. We therefore reverse and remand for the chancellor to make specific findings of fact and conclusions of law to support the division of the marital assets submitted by the parties for his determination.

¶27. THE JUDGMENT OF THE HARRISON COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT, IS AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND APPELLEE.

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

      . Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss. 1994).

      . The couple had no children of the marriage.

      . The recusal is irrelevant to the issues on appeal.

      . The court-appointed accountant's report was subsequently amended to correct errors initially present in the report, including the error of classifying as Stephen’s personal debt a $205,952 tax debt actually belonging to the business Coast Cycle World. The initial report also identified a vehicle as belonging to Stephen that actually belonged to Coast Cycle World.

      .The chancellor adopted the transcript of the previous day of trial in June 2010, which ■ included the testimony of Alaina and Alaina's expert property appraiser. Prior to trial resuming, Alaina filed a motion requesting that the court determine a cut-off date for the purposes of determining the marital assets owned by the parties. Alaina asserted that this should be the date that trial started in January 2010. In response to Alaina's motion to determine the cut-off date, the record contains an email from the court indicating that the cut-off date would be August 19, 2008, the date of the original temporary hearing from which an order should have been but was not entered. This date was never formalized with an order.

      . The transcript does not indicate exactly when the box was delivered.

      . The chancellor conducted a McKee factor analysis on the record, and the reasonableness of the fees is not challenged on appeal. McKee v. McKee, 418 So.2d 764 (Miss. 1982).

      . Except for the expert fees incurred related to reopening the case, which the chancellor assessed entirely to Stephen.


source: Caselaw Access Project

author: GRIFFIS, P.J.,

license: Public Domain

text:
    Mary CARNATHAN, as Wrongful Death Beneficiary of Joe Carnathan, Deceased, Appellant v. Dr. William Bryan ROGERS, Joseph Bailey, III, M.D. and Woodrow Wilson Brand, III, M.D., Appellees
    NO. 2015-CA-01644-COA
    Court of Appeals of Mississippi.
    02/28/2017

      JAMES DAVID MOORE, ATTORNEY FOR APPELLANT
    J. GORDON FLOWERS, DAVID W. UPCHURCH, JOHN G. WHEELER, LAUREN OAKS LAWHORN, JOHN MARK MCINTOSHv
    BEFORE GRIFFIS, P.J., ISHEE AND CARLTON, JJ.
   GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. This appeal arises from a medical-malpractice suit filed on behalf of the deceased, Joe Carnathan. The circuit court granted summary judgment in favor of the defendants due to Mary Carnathan’s failure to properly designate an expert witness and supply an expert affidavit. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On December 26, 2013, Carnathan filed a wrongful-death medical-malpractice claim against Dr. William Bryan Rogers, Dr. Joseph Bailey III, Dr. Woodrow Wilson Brand III, Surgery Clinic of Amory, Gilmore Memorial Hospital d/b/a Gilmore Memorial Regional Medical Center, John Does 1-5, and ABC Corporations 6-10. On April 2, 2014, Carnathan attempted to serve Gilmore Memorial Hospital with process, but was informed that the proper legal entity was Amory HMA LLC.

¶ 3. Carnathan did not serve Amory HMA with process, but instead filed a motion to amend her complaint to add Amory HMA as a proper party on May 27, 2014. In this motion, Carnathan also requested to extend the discovery deadline. None of the joined defendants objected to Carnathan’s motion. Carnathan, however, failed to notice the motion for a hearing and did not pursue the motion further.

¶4. On November 19, 2014, Dr. Bailey filed a motion for summary judgment. He asserted that Carnathan had failed to designate an expert witness to establish her prima facie case of medical negligence. Carnathan responded to the motion on December 22, 2014, but did not designate an expert witness. On February 18, 2015, Dr. Rogers filed a motion for summary judgment and made the same argument as Dr. Bailey.

¶ 5. On March 23, 2015, Dr. Brand filed a motion for summary judgment that mirrored the motions of Drs. Bailey and Rogers. On April 17, 2015, the circuit court ordered Carnathan to respond to Dr. Rogers’s and Dr. Brand’s motions for summary judgment. Carnathan complied with the circuit court’s order, but again failed to designate an expert witness.

¶ 6. The circuit court held a hearing on the motions for summary judgment on June 19, 2015. An order that granted the motions for summary judgment was entered on October 2, 2015. Carnathan now appeals.

STANDARD OF 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). Under this standard, we view the evidence “in the light most favorable to the party, against whom the motion has been made.” Id. The Karpinsky court further held:

Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and .that the moving party is entitled to [a] judgment as a matter of law. 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 is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will bé'entered against him.
This 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 movant 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 and citations omitted).

ANALYSIS

¶ 8. Carnathan argues that the circuit court erred when it granted summary judgment to the defendants in contradiction of Mississippi Rules of Civil Procedure 15(a) and 19 and Rule 4.04 of the Uniform Rules of Circuit and County Court. Carnathan asserts that the circuit court should have allowed her to amend her complaint and join Amory HMA as a proper party before ruling on the defendants’ motions for summary judgment. Further, Carnathan contends that according to Uniform Rule of Circuit and County Court 4.04, she had until'sixty days prior to trial to designate an expert witness, and the grant of summary judgment was premature.

¶ 9. This Court has held that in a medical-malpractice claim, “expert testimony must be used.” Posey v. Burrow, 93 So.3d 905, 907 (¶ 8) (Miss. Ct. App. 2012) (quoting Barner v. Gorman, 605 So.2d 805, 809 (Miss. 1992)). Further, “[n]ot only must this expert identify and articulate the requisite standard that was- not complied with, the expert must also establish that the failure was the proximate cause, or proximate contributing cause, of the alleged injuries.” Id. (citation omitted).

¶ 10. This Court has further held that “[u]nless the matter is within the common knowledge of laypersons, to establish a prima facie case of medical negligence agáinst a physician, a plaintiff must present competent expert testimony as to the' applicable standard of care, breach, and proximate causation.” Langley ex rel. Langley v. Miles, 956 So.2d 970, 976 (¶ 17) (Miss. Ct. App. 2006) (citing Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss. 1987) (overruled on other grounds)).

¶ 11. At all stages of pretrial, Car-nathan failed to present any witness designation or affidavit in support of her prima facie case. Without an expert witness, Car-nathan could not present evidence of the standard of care for any of the three physicians and therefore cannot “survive summary judgment.” Johnson v. Pace, 122 So.3d 66, 68 (¶ 8) (Miss. 2013) (citing Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (Miss. 2007)).

¶ 12. Further, Carnathan’s failure to designate an expert witness, prior to the hearing for summary judgment, overshadows her contention that the trial court’s mere consideration of summary judgment was premature. The supreme court has held that “[a] party against whom a claim is asserted may, at any time, move ... for a summary judgment in his favor .Id. (citing M.R.C.P. 56(b)). Carnathan’s reliance on Uniform Rule of Circuit and County Court 4.04(A) to support the argument that she was not yet required to designate an expert witness because she had until sixty days prior to the trial is a miseharac-terization of the rule.

¶ 13. Rule 4.04(A) of the Uniform Circuit and County Court Rules provides:

All discovery must be completed within ninety days from service of the answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension. Absent special circumstances the court will not allow the testimony at trial of an expert witness who was not designated as an expert witness to all attorneys of record at least sixty days before trial.

¶ 14. There is no authority to support Carnathan’s position that “the circuit court should have granted her motion for leave to amend her complaint and a scheduling order prior to considering the physicians’ motions for summary judgment.” Carnathan seems to assert an argument that the circuit-court judge abused his discretion, but the appropriate standard of review for summary judgment is de novo, not abuse of discretion. The supreme court has held that “[i]n the absence of any expert testimony to support [a] claim [the movant] was entitled to judgment as a matter of law.” Johnson, 122 So.3d at 70 (¶ 12). As such, the circuit-court judge did not abuse his discretion by merely considering the motions for summary judgment while Carnathan’s request to amend her complaint was pending. Further, there was no abuse of discretion in granting the motions for summary judgment, as the moving parties were entitled to judgment as a matter of law.

¶ 15. Carnathan’s failure to provide any expert witness or affidavits, prior to the hearing for summary judgment, was “fatal to her [medical]-málpractice claim” against the physicians. Cates v. Woods, 169 So.3d 902, 910 (¶ 25) (Miss. Ct. App. 2014). We cannot find that there is a genuine issue of material fact; thus, summary judgment in favor of the physicians was proper. Carna-than’s assertion that the circuit-court judge abused his discretion by considering the motions for summary judgment is without merit.

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

LEE, C.J., ISHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. BARNES AND FAIR, JJ., NOT PARTICIPATING.

      . The only defendants that are parties in this appeal are Dr. Rogers, Dr. Bailey, and Dr. Brand.

      . Pursuant to Rule 56(c), an adverse party may serve affidavits until the day prior to1 the hearing.


author: WILSON, J., IRVING, P.J.,

text:
    Donald MITCHELL a/k/a Donald K. Mitchell a/k/a “Black”, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-00575-COA
    Court of Appeals of Mississippi.
    02/28/2017
    ATTORNEY FOR APPELLANT: DONALD MITCHELL (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH
   WILSON, J.,

FOR THE COURT:

¶1. Donald Mitchell pled guilty to possession of cocaine with intent to distribute and was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years suspended and ten years to serve. Mitchell had been indicted as a violent habitual offender and thus faced a life sentence without the possibility of parole if found guilty at trial.

¶2. Mitchell subsequently filed a motion for post-conviction relief (PCR), claiming that he received ineffective assistance of counsel and that his plea was involuntary. Both claims are based on Mitchell’s allegation that his attorneys coerced him into pleading guilty and abandoned a meritorious motion to suppress evidence. The circuit court summarily dismissed Mitchell’s PCR motion. We affirm because Mitchell’s motion to suppress lacked merit; therefore, his attorneys did not provide ineffective assistance by advising him to accept the State’s plea offer, and his plea was not involuntary.

FACTS AND PROCEDURAL HISTORY

¶3. Donald Mitchell was indicted as a violent habitual offender, Miss. Code Ann. § 99-19-83 (Rev. 2015), for possession of cocaine with intent to distribute. His indictment resulted from a search of an apartment on West Capitol Street in Jackson. Detective Kevin Dear of the Jackson Police Department obtained a warrant for the search from a Jackson municipal judge. Dear’s signed statement of “Underlying Facts and Circumstances,” which was attached to and specifically incorporated by reference in Dear’s affidavit for the search warrant, stated as follows:

In August of 2008, Detectives of the Jackson Police Department’s Narcotics Division were told of a subject named “Black” who was operating a “trap house” on Capitol Street, at 2100 Capitol, in a red brick two story building. (A trap house is a residence that is used by the drug dealer during the hours that the dealer sells narcotics but one [in which] the dealer does not live.)
The suspect “Black” was identified as Donald Mitchell, [and] was said to be a convicted felon. The suspect was said to be in possession of a substantial amount of crack cocaine.
Anonymous sources have also called in tips to the Narcotics office giving very specific details of this subject’s activities which were independently verified through our resources.
Also, on Wednesday, September 3, 2008, a black male in this parking lot by the back door to this apartment tried to flag undercover narcotics detectives down in an attempt to sell them illegal narcotics. The suspect was not apprehended due to him escaping on foot.
The residence is at 2100 Capitol Street, the bottom apartment on the western side of the building. The numbers have been removed preventing exact determination of the apartment number.
On September 4, 2008, Detectives spoke with a confidential and reliable source that has been proven reliable in the past by giving true and accurate information in the area of narcotics trafficking in and around the city of Jackson. This source states that the house is controlled by “Black” who the source identified as Donald Mitchell. The C.I. (confidential informant) stated that the back door to this apartment is where the transactions take place and that this door is “fortified,” meaning there are dead fall locks using large pieces of wood which would prevent speedy entry by Police Officers.
This C.I. stated that he or she has seen a large amount of crack cocaine being stored and distributed at this location by this suspect and that the suspect is selling the cocaine from this apartment[,] and the C.I. states that he or she has seen this within the past twenty-four hours.
,,. Therefore, it is requested that a search warrant be issued for 2100 Capitol Street, bottom western apartment, which is operated and under the control of a subject named Donald Mitchell.
[signature] Detective Kevin Dear Jackson Police Department Narcotics Division []

¶4. The municipal judge found that probable cause for the search existed and issued the warrant. The return on the warrant states that it was received “on the 4th day of September 2008” and executed “on the 4th day of September 2008,” with the date, month, and year handwritten on the form. On the warrant and the affidavit, however, the municipal judge wrote in “Aug” on the lines for the month. But as noted above, the affidavit specifically incorporates by reference Dear’s signed statement of “Underlying Facts and Circumstances,” which was also attached to the affidavit. Dear’s statement specifically discusses events that occurred on September 3 and September 4. Obviously, the judge could not have witnessed an affidavit or issued a warrant based on events that did not occur for another month. The only logical conclusion that can be drawn is that “Aug” was a scrivener’s error.

¶5. Mitchell was represented at trial by privately retained counsel who filed a number of pretrial motions; however, he did not file a motion to suppress or any other motion alleging irregularity in the issuance or execution of the search warrant. At trial, the search warrant and the supporting affidavit, together with the attached Underlying Facts and Circumstances, were admitted into evidence as a single exhibit, S-2, The entire exhibit was also included in Mitchell’s record excerpts in his direct appeal from his subsequent conviction. Dear testified at trial that the search warrant was issued on September 4, 2008. He also testified that he and other officers executed the search warrant “[o]n the same day [they] obtained it.” Mitchell’s brief in his initial appeal similarly stated that the judge granted the search warrant on September 4, 2008, and that officers executed the warrant the same day. On direct appeal, Mitchell did not raise any issue as to the validity of the search warrant.

¶6. Following a jury trial, Mitchell was convicted of possession of cocaine with intent to distribute, and the circuit court sentenced him to life imprisonment without parole as a violent habitual offender. On appeal, the Mississippi Supreme Court held that the circuit court abused its discretion by allowing the admission of evidence of Mitchell’s prior convictions for drug possession. The Supreme Court therefore remanded Mitchell’s case to the circuit court for a new trial. Mitchell v. State, 110 So.3d 732, 735 (¶ 14) (Miss. 2013).

¶7. On remand, the Hinds County Public Defender’s Office was appointed to represent Mitchell, and a different assistant district attorney represented the State. Mitchell’s new attorney filed a motion to suppress, alleging that the search warrant was invalid because it was executed a month after it was issued in violation of Mississippi Code Annotated section 41-29-157(a)(3) (Rev. 2013) and the Fourth Amendment, to the United States Constitution. The motion attached the search warrant and affidavit and relied on the apparent scrivener’s errors in those documents; however, the motion, failed to attach the signed statement of Underlying Facts and Circumstances as part of the affidavit.

¶8. The motion was served on the State on October 9, 2013. The State offered to allow Mitchell to plead guilty as a non-habitual offender and to recommend a sentence of thirty years with twenty years suspended and ten years to serve. But the State told Mitchell that the offer woüld expire on October 10, 2013. In other words, Mitchell could either accept the State’s offer or litigate his motion to suppress, but he could not do both.

¶9. At a hearing in the circuit court on October 10, 2013, Mitchell’s, counsel advised the court as follows:

I’ve explained to the defendant, and I’d like to put this on the record, that this is a case that he has already been found guilty by a jury one time, and it’s been reversed by the [Supreme] [C]ourt, as the Court is well aware; that he is a [99-]19-83 habitual, meaning if the jury finds him guilty of anything in this case, he is facing life in prison.
The State has put an offer on the table today that is 30 years, 20 suspended, 10 to serve. I’ve explained to him, and the sticking point here is we—and I understand his concern, and we have filed a motion which we have served on the State and on the Court, motion to suppress the evidence in this case based on a bad search warrant.
The search warrant—and the motion will be presented to the Court, but I’ve explained to him that the State • has made this offer and-that it expires today, as the State has informed me. - - -
If the offer goes off the table, then We have no choice but to go back to trial'on this case; that if we go to trial and he is convicted again, he is facing life in prison.
But I’ve explained to him that it is not—I can’t decide what this young man needs to do with his life. This is his decision and his decision only. ,
And I’ve explained- to him that-,he needs to announce to the Court whether he wants to go ahead and accept, the offer of the State,..which is a 10 year sentence or—and it’s as ⅜ non-habitual .with no enhancements, so he will be eligible for good time credit through the MDOC system, whatever credit that might be. The lawyers are no. longer allowed to advise what that, realistically will mean. ...
But I’ve explained to him that—he understands the plea. He understands that if we go back and he is found guilty, he is facing life in prison again.
And I, of course, as an attorney' 1 can’t make a recommendation one way or another of how we will do at trial because I will never tell a client' ever we will win this or we will lose it.‘I just can’t do that because I don’t know.'
That being said, it’s his opportunity to announce to the Court whether he wants to accept the State’s offer or whether he wants another trial.

¶10. The court then asked Mitchell what he wanted to do, and Mitchell said that he wanted to pursue his motion to suppress and go to trial. Based on Mitchell’s decision, the court began reviewing its schedule for an open trial date. The prosecutor then reiterated that the State’s plea offer would be revoked based on Mitchell’s decision. In response, Mitchell’s attorney asked for a brief recess so that she and two other attorneys in her office “could speak with [Mitchell] for just a moment.” The court agreed, stating, “I certainly don’t want to rush him because I know it’s a very important decision.”

¶11. After a brief recess, Mitchell informed the court that he wanted to accept the State’s offer and plead guilty. Mitchell testified under oath that he had conferred with all three attorneys about his decision and that he was satisfied with the advice they had given him. He testified that he understood everything in his plea petition and that no one had threatened him or coerced him in any way in order to get him to plead guilty. The court advised Mitchell of the rights that he would waive by pleading guilty, and Mitchell testified that he understood. See URCCC 8.04(A)(4)(c). The State recited the factual basis of the plea, and Mitchell testified that he agreed with it. Mitchell then pled guilty, and the court found that his plea was entered freely and voluntarily after he had been advised of his rights by counsel and by the court.

¶12. The prosecutor then reiterated the State’s plea offer and recommended sentence of thirty years in MDOC custody, with twenty years suspended and ten years to serve. The prosecutor advised the court that the State’s offer was “based on some litigation risk associated with the search warrant, as well as an officer who was involved that was later indicted.” The prosecutor stated that the “officer was subsequently acquitted,” but there were “some issues surrounding” his indictment “that could come up at trial.” The court accepted the State’s recommendation and sentenced Mitchell accordingly.

¶13. On May 19, 2015, Mitchell filed a PCR motion seeking to set aside his conviction. Mitchell’s PCR motion attached his previously filed motion to suppress, with the search warrant and affidavit but not the statement of Underlying Facts and Circumstances. In his motion, Mitchell alleged that his lawyer gave him “erroneous” advice—specifically, that she told him that the circuit court “would deny his motion” to suppress and sentence him to life without parole upon conviction. Mitchell maintains that this was bad advice because the search warrant was “stale” and invalid. He alleges that he was thereby “coerced” into abandoning the motion and pleading guilty. The circuit court summarily dismissed Mitchell’s motion without directing the State to respond.

DISCUSSION

¶14. We affirm the denial of Mitchell’s PCR motion for a straightforward reason: the motion’s foundational premise—that the search warrant was stale and invalid—is factually incorrect. The only logical conclusion that can be drawn is that the officers applied for and received the warrant on September 4, 2008, and executed it the same day. That the municipal judge mistakenly wrote “Aug” on the form affidavit and warrant is of no consequence. A judge’s scrivener’s errors in an affidavit and warrant do not render the warrant invalid. See, e.g., United States v. Waker, 534 F.3d 168, 171-72 (2d Cir. 2008).

¶15. Because the allegations in the motion to suppress were factually inaccurate, the motion lacked merit, and Mitchell’s attorneys did not provide ineffective assistance. A claim of ineffective assistance requires proof (1) that counsel’s performance was seriously and objectively deficient and (2) that the defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, if Mitchell’s retrial had again ended with a guilty verdict, he faced a mandatory sentence of life in prison without the possibility of parole. He alleges that his attorneys prevailed upon him to accept the State’s offer of ten years to serve, with twenty years suspended, rather than pursue his motion to suppress. Based on the true facts, Mitchell’s motion to suppress was frivolous. Therefore, his attorneys alleged advice to abandon the motion and accept a favorable plea offer simply cannot establish a claim of ineffective assistance of counsel.

¶16. The above discussion draws primarily on the signed statement of Underlying Facts and Circumstances that was attached to and incorporated by reference in Dear’s affidavit supporting the search warrant. Because Mitchell did not attach this document to his PCR motion, it is not part of the clerk’s papers transmitted from the circuit clerk to this Court. However, for reasons that are not clear, the circuit clerk included the exhibits from Mitchell’s trial as part of the record in this appeal. As noted above, the statement of Underlying Facts and Circumstances was part of exhibit S-2, admitted into evidence at Mitchell’s trial, and was also included in his record excerpts in his prior appeal. Whether the document was properly included in the record in this appeal ultimately is of no significance. It was part of the record in the Supreme Court in Mitchell’s direct appeal, and this Court certainly can take judicial'notice of Supreme Court files. Crawford v. Fisher, No. 2014-CA-01606-SCT, 213 So.3d 44, 47-48, 2016 WL 7331043, at *2 (¶ 10) (Miss. Dec. 15, 2016). The same applies to Mitchell’s trial transcript and his brief and record excerpts in his prior appeal.

¶17. The dissent says that Detective Dear’s signed statement of Underlying Facts and Circumstances is “mysterious.” There is no mystery. To be absolutely clear, the statement was attached to and expressly incorporated by reference as part of the affidavit supporting the application for the search warrant, and it was introduced into evidence together with the affidavit as exhibit S-2 at Mitchell’s trial. These critical pages are missing from the record in only two places: (1) Mitchell omitted them from his post-remand motion to suppress, and (2) Mitchell again omitted them from his present PCR motion. We may take judicial notice of the complete affidavit because it is in the Supreme Court file as part of the record of Mitchell’s prior trial and appeal. We are not required to pretend as though it does not exist, ánd Mitchell cannot cast doubt on its authenticity simply by failing to attach it to his own motions.

¶18. We also acknowledge that the State has not pointed out that Mitchell’s argument is based on scrivener’s errors. The circuit court dismissed Mitchell’s motion without directing the State to respond, and the State’s brief on appeal argues that the circuit court’s ruling should be affirmed for other reasons. However, even if the State had confessed error, we would “have an obligation to examine the record to determine whether the conviction should stand or be reversed.” McCollum v. State, 186 So.3d 948, 953 (¶ 19) (Miss. Ct. App. 2016) (citing Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)). For the same reasons, regardless of whether the' State notices the issue, we should not set aside a valid conviction based on a post-conviction claim that is founded on an evident scrivener’s error.

CONCLUSION

¶19. In summary, Mitchell was presented with a clear decision: pursue his motion to .suppress and risk a possible sentence of life without, the possibility of parole or accept the State’s offer of ten years to serve with twenty years suspended. He accepted the State’s offer, apparently with the encouragement of his attorneys. Whatever the. reasons for his attorneys’ advice, they advised him well, because his motion to suppress was factually without merit. Mitchell did not receive ineffective assistance. Accordingly, we affirm.

¶20. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

GRIFEIS,'P.J., BARNES, ISHEE, CARLTON, FAIR AND. GREENLEE, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND WESTBROOKS, J.

IRVING, P.J.,

DISSENTING:

¶21. Because the majority has exceeded its authority under the appropriate parameters of appellate review by implicitly making findings of fact and reviewing matters not considered by the trial court, I am compelled to dissent.

¶22. Our standard of review of the judgment of the trial court in post-conviction relief matters is well settled and well known to this Court: “In reviewing a trial court’s decision to deny & petition for post[-]conviction relief [an appellate court] will not reverse such a denial absent a finding that the- trial court’s decision was clearly erroneous.” Kirksey v. State, 728 So.2d 565, 567 (¶ 8) (Miss. 1999). Issues of law are reviewed de novo. Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss. 2008):

¶23. The judgment of the trial court stated: “The court noting the Defendant has failed to comply with the statutory mandates regarding filing of’petitions for post[-]eonviction relief, nonetheless having reviewed the plea petition and transcript (attached hereto as Exhibits A and B) finds the petition should be and the same is hereby SUMMARILY DISMISSED.”

¶24. So the question on appeal for , this Court is whether the quoted judgment is clearly erroneous. Or the question may be asked another way: What facts are contained in Mitchell’s plea petition and transcript of his plea colloquy that make the allegations of his PCR motion a sham? I say nothing. By affirming the judgment, apparently the majority implicitly finds enough but fails to point out or discuss those poignant facts. The next question then is on what basis does the majority make that determination, since the only thing that was placed before the trial court was Mitchell’s motion for post-conviction relief, which contained, as exhibits, only the search warrant, the affidavit for the search warrant, and the return? The affidavit and search warrant are dated August 4, 2008. The return states that the search warrant was received on September 4, 2008, and was executed on September 4, 2008, at “162 hrs.” It does .not say whether the execution occurred in the a.m. or p.m. But more importantly, “162 hrs” does not denote a time. In any event, there .is a clear factual variance between the dates which, in my view, can only be explained and resolved by testimonies from the parties involved, the municipal judge and Officer Dear, who allegedly presented the statement of “Underlying Pacts and Circumstances” to the judge.

¶25. The majority relies upon a mysterious, undated statement of “Underlying Facts and Circumstances,” which the majority states was incorporated into the affidavit for the search warrant. More specifically, the majority states:

We affirm the denial of Mitchell’s PCR motion for a straightforward reason: the motion’s foundational premise—that the search warrant was stale and invalid—is factually incorrect. The only logical conclusion that can be drawn is that the officers applied for and received the warrant on September 4, 2008, and then executed it the same day. That the municipal judge mistakenly wrote “Aug” on the form affidavit and warrant is of no consequence. A judge’s scrivener’s errors in an affidavit and warrant do hot render the warrant invalid.

The majority apparently misunderstands my use of the term “mysterious” in my discussion of the statement of “Underlying Facts and Circumstances.” To be clear, I am only referring to how it could have mysteriously ended up in Mitchell’s PCR appellate file when, as I state in footnote 1, it was not introduced, as an exhibit or attached to his PCR motion in the PCR proceedings, and he did not include it in his record excerpts.

¶26.1 do -not take issue with the majority’s assertion that the statement of “Underlying Facts and Circumstances” was introduced as exhibit 2 in Mitchell’s trial, nor do I take issue with, the majority’s assertion that we, as an appellate court, can certainly take judicial notice of what was introduced in Mitchell’s trial proceedings, as borne out by the record on appeal of his conviction, which was Cause No 2011-KA-684. But as I discuss in this dissent, the fact that the statement of “Underlying Facts and Circumstances,” along with the search warrant and affidavit for the search warrant, was introduced during Mitchell’s criminal trial does not resolve the factual questions presented by his PCR motion.

1127. I agree that a judge’s scrivener’s errors in an affidavit and warrant do not render the warrant invalid. But where is the testimony in this record that the judge committed scrivener’s errors? If it exists, the majority has not pointed it out, arid ! have not been able to find it. For the majority to make such a statement as fact is indeed befuddling, because to conclude that the municipal court judge, who issued the warrant, made scrivener’s errors is to engage in pure conjecture. And more troubling is the fact that the majority’s conclusion—that the municipal judge made two scrivener’s errors—appears to.be premised on the notion that the date that Officer Dear said he received the warrant and the dates discussed in the “Underlying Facts and Circumstances” are absolutely accurate and controlling because these representations were made by a law enforcement officer. Are all law enforcement officers beyond reproach? I could understand the majority’s position if there were conflicting or competing testimony on this point and the trial judge, as the fact- finder, had found that a scrivener’s error had to have occurred based on the testimony that the trial judge chose to accept as true, but that is not the case.

¶28. With all due respect to the majority, nothing in this record proximally connects or identifies the undated statement of “Underlying Facts and Circumstances” with the affidavit or search warrant other than Officer’s Dear’s testimony in Cause No. 2011-KA-684. I fully understand that the statement of “Underlying Facts and Circumstances” discusses activities that allegedly occurred on September 3 or 4, 2008, but that fact begs the primordial question, as it is not impossible nor necessarily improbable that the search warrant could have been issued without the statement of “Underlying Facts and Circumstances” being attached. And I take this position knowing full well that the affidavit in support of the search references a “sheet headed ‘Underlying Facts and Circumstances.’ ” Suffice it to say that both the search warrant and affidavit in support of the search warrant are preprinted form documents. Therefore, that information is contained in every affidavit for a search warrant, even those that have yet to be executed. So the existence of that information in the affidavit for the search warrant certainly does not prove that the statement of “Underlying Facts and Circumstances” was indeed presented, although it may have been, to the municipal judge at the time the search warrant was issued.

¶29. The majority finds that Officer Dear’s testimony during Mitchell’s trial, which resulted in a conviction that was reversed on appeal, is sufficient to resolve the discrepancy between the dates of the affidavit and search warrant, and the date of the execution of the search warrant as reflected in the return. In that trial, according to the majority, Officer Dear

testified that he and other officers executed the search warrant “[o]n the same day [they] obtained it.” Mitchell’s brief on appeal similarly stated that the judge granted the search warrant on September 4, 2008, and that officers executed the warrant the same day. On appeal, Mitchell did not raise any issue as to the validity of the search warrant.

¶30. I would agree with the majority that Officer Dear’s testimony from the criminal trial would be sufficient to resolve the date discrepancies if he had been questioned by Mitchell’s counsel during that trial regarding the discrepancies between his testimony and the dates of the search warrant and affidavit for the search warrant. That did not occur, which raises the specter of whether counsel was ineffective in that trial for not doing so, even suggesting in his appellate brief that the search warrant was issued on September 4, 2008, when the date on the face of the warrant contradicted that statement. Moreover, I know of no authority holding that Mitchell’s new counsel on retrial after remand was bound by any decisions made by Mitchell’s previous attorney, especially if that attorney had rendered ineffective assistance. Further, a PCR motion is a civil matter, separate and apart from the criminal trial. Therefore, if Mitchell made, and I believe that he did, a prima facie showing in his PCR motion that he had received ineffective assistance during proceedings leading up to his retrial, I believe it was incumbent upon the trial judge to require the State to respond prior to summarily dismissing Mitchell’s PCR motion. So I believe the majority errs by relying upon Officer Dear’s unchallenged testimony in Mitchell’s criminal trial to clear up factual questions raised by the PCR documents. I think this is especially true since, as stated, the issue of the validity of the search warrant was not an issue in the criminal trial. We cannot assume that Officer Dear’s testimony was truthful as to when the warrant was issued and that that was the reason there was no challenge to the validity of the search warrant.

¶31. After Mitchell’s initial conviction was reversed, the mandate was issued May 3, 2013, and on June 7, 2013, the circuit court executed an order setting a new trial date of October 14,2013, and a plea date of October 4, 2013. On June 12, 2013, Mitchell’s attorney filed a “Motion for Discovery and Request for Plea Offer and Other Relief,” which requested, among other things, “[a]ny affidavit or affidavits and the underlying facts and circumstances which preceded the issuance of the arrest and/or search warrant or warrants, if any, filed against [Mitchell,] along with copies of the arrest warrant or warrants and copies of the search warrant or warrants, if any.”

¶32. Apparently, the State did not respond to Mitchell’s discovery motion because the docket reflects that on August 27, 2013, Mitchell filed a “Motion to Compel Search Warrant.” The docket also reflects that on October 10, 2013, Mitchell’s attorney filed a motion to suppress evidence, but there is no indication that this motion was brought on for hearing prior to Mitchell entering his guilty plea.

¶33. On the same date, October 10, 2013, that Mitchell’s attorney filed the motion to suppress evidence, Mitchell entered the guilty plea that lies at the root of this appeal. Before entering the guilty plea, and at the beginning of what turned out to be a plea hearing, the court asked, “Are we ready to proceed?” and Mitchell’s counsel stated:

Yes, Your Honor, but I’m going to—I’ve explained to the defendant, and I’d like to put this on the record, that this is a case that he has already been found guilty by a jury one time, and it’s been reversed by the Court, as the [c]ourt is well aware; that he is a [99—319—83 habitual, meaning if the jury finds him guilty of anything in this case, he is facing life in prison. The State has put an offer on the table today that is 30 years, 20 suspended, 10 to serve. I’ve explained to him, and the sticking point here is we—and I understand his concern, and we have filed a motion which we have served on the State and on the [c]ourt, motion to suppress the evidence in this case based on a bad search warrant. The search warrant—and the motion will be presented to the [c]ourt, but I’ve explained to him that the State has made this offer and that it expires today, as the State has informed me.
If the offer goes off the table, then we have no choice but to go back to trial on this case; that if we go to trial and he is convicted again, he is facing life in prison.
But I’ve explained to him that it is not— I can’t decide what this young man needs to do with his life. This is his decision and his decision only.
And I’ve explained to him that he needs to announce to the Court whether he wants to go ahead and accept the offer of the State, which is a 10 year sentence or—and it’s as a non-habitual with no enhancements, so he will be eligible for good time credit through the MDOC system, whatever credit that might be. The lawyers are no longer allowed to advise what that realistically will mean. But I’ve explained to him that—he understands the plea. He understands that if we go back and he is found guilty, he is facing life in prison again. And I, of course, as an attorney I can’t make a recommendation one way or another of how we will do at trial because I will never tell a client ever we will win this or we will lose it. I just can’t do that because I don’t know.
That being said, it’s his opportunity now to announce to the Court whether he wants to accept the State’s offer or whether he wants another trial.

The trial court then asked, “What’s your desire, Mr. Mitchell?” Thereafter, the following occurred:

BY MR. MITCHELL: I would like to fíle my motion to suppress the search warrant and go back to trial then. We’ll go to trial, sir.
BY THE COURT: It’s my understanding that the motion to suppress is already filed.
BY DEFENSE COUNSEL: Yes, sir. It has been filed.
BY THE COURT: So that part of your request has already been taken care of, and we’ll put you back on the trial docket. Your case will not go to trial, however, on the date that it is presently set. That is a civil term. We set cases as backup possibility. One of those civil cases is going to go, so the 14th is out. So you will be given a new trial date.
BY THE COURT ADMINISTRATOR: December the 9th.
BY THE COURT: December the 9th. BY THE PROSECUTOR: And, Your Honor, the considerably low offer extended by the State today is revoked.
BY THE COURT: Okay.
BY DEFENSE COUNSEL: Your Hon- or, the Court’s indulgence. If Mr.— Marvell [Gordon] and Yemi [Kings] could speak with him for just a moment. Just one more minute.

¶34. After the defense counsel asked the court’s indulgence, the court stated:

Okay. We’re going to hold—I’ve been accommodating Mr. Mitchell now for about the past 45 minutes holding a lot of people here while he’s trying to make his decision, and I certainly don’t want to rush him because I know it’s a very important decision.
⅜ ⅜ $ ‡
But he’s got 15 more minutes, and we’re leaving today.

¶35. When the court reconvened after the fifteen-minute recess, the court commenced the plea qualification hearing and asked the standard questions of Mitchell and received the standard responses, including Mitchell’s statement that he was satisfied with the advice that Yemi and Marvell had given him. Conspicuously absent from the colloquy that occurred were any questions regarding Mitchell’s understanding about the validity of the search warrant, which formed the backbone of the charges against him. While he was told that he could challenge the admissibility of the evidence that the. State proposed to offer against him if he chose to go to trial, such knowledge would not be of any benefit to him in trying to assess whether he should go to trial unless he also understood the probability of the chance that the State would be thwarted in its efforts.

¶36. Based on the unanswered factual questions surrounding the issuance of the search warrant and the failure of the trial court to require the State to respond to the allegations of Mitchell’s PCR motion before summarily dismissihg the motion, I would reverse the judgment of the circuit court and remand this case for an eviden-tiary hearing to address what Mitchell’s counsel, Marvell, and Yemi told'him regarding the validity of the search warrant before he entered his guilty plea. I arrive at this conclusion, in part, because the transcript arguably shows that Mitchell’s counsel engaged in a hard-sell to convince Mitchell to accept the State’s offer even after Mitchell had made it clear that he wanted to “file [his] motion to suppress the evidence and go to trial”—even calling in two of counsel’s associates to help convince Mitchell that he should plead guilty—all before testing the validity of the search warrant.

¶37. I also arrive at this conclusion because, in my view, it is unquestionably clear that the judgment of the trial court cannot be affirmed without this Court making specific .findings of fact supported, as stated, by nothing more than conjecture and an apparent willingness to do so to assist the prosecution in its dereliction of duty. That seems apparent from the‘.majority’s acknowledgment that, in this appeal, “the State has not pointed out-that Mitchell’s argument is based on scriveners errors,” which is the fulcrum of the majority’s rationale. In light of; the statement made by the State during the plea colloquy—that there were issues associated with the warrant and the officer involved— might the reason for the State not making the argument that undergirds thé majority’s rationale be that there is some merit to Mitchell’s contentions?

¶38. It is difficult to understand Mitchell’s counsel’s action in light of the fact that Mitchell’s trial was not scheduled to take place until December 9,2013, approximately two months from the date the plea was taken. It seems that period of time should have afforded counsel an ample opportunity to get the motion to suppress heard. While the State had indicated that the offer would not stay on the table until then, that was of no moment since it was Mitchell’schoice to pursue the motion to suppress the search warrant.

¶39. It is even more difficult for me to understand why this Court ,is unable to discern the necessity for an evidentiary hearing to flesh out the time issues surrounding the issuance and execution of the search warrant and what advice Mitchell’s attorney(s) gave him immediatély prior to his entering his guilty plea. It is clear to me that the allegations of Mitchell’s PCR motion and the documents that he attached make but a prima facie casé that his counsel may have been ineffective, despite the fact that Mitchell received' a much lighter sentence than he would have received had he gone to ’ trial and been convicted, because this argument presupposes the validity of the search warrant— an argument I cannot embrace because of the unanswered questions presented,-

¶40. Our Constitution means nothing if our courts are unwilling to accept that its protections of due process also extend to the repeat criminal. For the reasons presented, I dissent. I would reverse the summary dismissal of Mitchell’s PCR motion for an evidentiary hearing on the issues discussed herein.

LEE, C.J., AND WESTBROOKS, J, JOIN THIS OPINION.

      . Mitchell has prior convictions for manslaughter and drug possession.

      . Portions of the narrative were redacted at Mitchell's trial and are omitted above.

      . This provision, which applies to warrants issued under the Uniform Controlled Substances Law, states that “[a] warrant issued pursuant to this section must be executed and returned within ten (10) days of its date unless, upon a showing of a need for additional time, the court orders otherwise.” Miss. Code Ann. § 41-29-157(a)(3). Rule 4.3(1) of the new Mississippi Rules of Criminal Procedure (effective July 1, 201.7) imposes, the same requirement. A leading treatise states that courts have '‘sometimes” suppressed evidence because of noncompliance with such provisions, "though other courts’ are disinclined to require suppression where there is no Fourth Amendment violation.” 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.7(a) (5th ed. 2012).

      . Multiple officers were involved in the case. The prosecutor did not specify which officer was indicted and subsequently acquitted.

      . Mitchell also claims that his plea was involuntary, but his sole argument is that his plea was involuntary because of his attorneys’ ineffective assistance. As his ineffective assistance claim is without merit, his involuntary plea claim necessarily fails as well.

      . I should point out that this statement of "Underlying Facts and Circumstances” is contained in an exhibit folder from Mitchell's previous trial and was mysteriously included in this record. 1 say mysteriously included because there was no hearing held; therefore, there could not be any exhibits admitted as a part of this record, and Mitchell did not include it in his record'excerpts.

      . The motion to compel is not included among the papers in the appellate record. But it would not be unreasonable to assume that maybe the State had something to hide for not timely disclosing the search warrant. Also, a plausible inference could be drawn that during Mitchell’s trial, he may not have known of the discrepancies in the dates of the search warrant and the date of the execution of the warrant. Otherwise, why was he pushing his new trial counsel to get the documents if he knew that they would show that everything was in order? Surely, it would not be of any benefit to him to pursue the documents for the fun of it.

      . Mitchell’s defense counsel was a member of the Hinds County Public Defender’s Office.

      . Messrs. Gordon and Kings are also members of the Hinds County Public Defender’s Office.


author: BARNES, J.,

text:
    In the Matter of the Guardianship of Frances Anne MCPHAIL: Justin W. McPhail and Anthony Page Portera, Appellants v. Pamela MCPHAIL, Appellee
    NO. 2015-CA-01479-COA
    Court of Appeals of Mississippi.
    02/28/2017

      ATTORNEYS FOR APPELLANTS: T. SWAYZE ALFORD, KAYLA FOWLER WARE
    ATTORNEY FOR APPELLEE: HAVEN CLANTON
    BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ.
   BARNES, J.,

FOR THE COURT:

¶ 1. On April 29, 2015, Justin McPhail and Anthony Page Portera (Page) filed a petition with the Calhoun County Chancery Court, requesting to be appointed as guardians of their grandmother, Frances McPhail. At the initiation of the proceedings, Frances was eighty-six years old and a patient at a nursing home in Calhoun City, Mississippi. She had recently been diagnosed as suffering from dementia. The petition claimed that Frances had executed a durable power of attorney on January 29, 2015, appointing Justin and/or Page and/or Patricia (Patty) Hibbard, Frances’s daughter and Page’s mother, as her attorney-in-fact. The petition also argued that it would be in Frances’s best interest to reside with her granddaughter, Enga Wooten, in Long Beach, Mississippi.

¶ 2. Before going into the nursing home, Frances had lived in her house with her other daughter, Pamela McPhail (Pam), for approximately twenty years. Pam answered the petition for guardianship, raising several affirmative defenses and claiming that Justin and Page (collectively referred to as Appellants) were unfit to serve as Frances’s- guardians. She further argued Frances was not capable of managing her own affairs when she signed the durable power of attorney on January 29, 2015, and noted that a prior power of attorney dated January 2, 2007, appointing Pam and/or Wayne McPhail, Frances’s son, as attorney-in-fact, was in full force and effect. Pam also objected to the appointment of a guardian, contending that because she was the "duly appointed attorney of 'her mother[, she] ha[d] been able to completely care'for her mother’s health'needs and her business affairs by utilizing the authority granted unto her[.]” Alternatively, she argued that, if the chancery court determined a guardian was needed, she was the “proper person for the-appointment.”

¶'3. On May 20, 2015, the parties entered into an “Agreed Order of Continuance and Resetting,” which included temporary visitation rights for family members to take Frances from the premises' of the nursing home for short periods of time, with Pam to receive four hours’ notice before the visit when possible. The. order also allowed family to take Frances and leave the nursing home for up to forty-eight hours, two times a month. Pam was to receive forty-eight hours’ notice before any overnight -visits.

¶ 4. Pam filed a motion' for contempt and for a temporary restraining order (TRO) on July 10, 2015, alleging Justin had willfully 'failed to comply with the May 21, 2015 order. The motion claimed that Justin had picked up Frances from the nursing home on July 2, 2015, and failed to return her that evening. Although he informed nursing-home staff the next day that he would return Frances by noon, he appeared later that afternoon without Frances and told the staff that he was keeping her all weekend. Pam received no notice of this visit. On July 6, Justin told the nursing-home supervisor he would not bring Frances back until the court hearing scheduled for August 18, 2015, and he did not reveal her whereabouts. It was later discovered that Justin took Frances to the Mississippi Gulf Coast and left her with family. The motion contended that Justin’s conduct was “contrary to [Frances’s] best mental and physical needs ..-. and could jeopardize Medicaid reimbursements for nursing.home charges.”

¶ 5. Pam obtained the TRO on July 21, 2015, and was granted legal and physical custody of Frances in order to retrieve her and bring her back to the nursing home. Pam and Wayne drove to Enga’s home in Long Beach and retrieved Frances. On August 7, 2015, the chancery court entered an order, dissolving the TRO, finding Justin in contempt, and holding that the May 21, 2015 order should remain in full force and effect. The court imposed no sanctions on Justin, as long he complied with the court’s prior order, and it placed no additional restrictions on visitation with Frances at the nursing home.

¶ 6. A hearing on the petition for guardianship was held on August 18, 2015. In a bench opinion, the chancellor denied the Appellants’ petition for guardianship, noting that Justin had two outstanding debts ($43,000 to the Internal Revenue Service and approximately $78,000 to First Security Bank), neither of which .had any payment plan or schedule. He also observed that Justin had custody of his son every other week and a busy work schedule. The chancellor set aside the January 29, 2015 power of attorney, as there was no evidence that the prior January 2,2007 power of attorney, which was executed when Frances “was lucid, in good shape and health[,]” had been revoked. Finding that Frances had diminished mental capacity, the chancellor appointed Pam as her guardian and required Pam to submit annual accountings; he also ordered Pam to remove her name as co-owner of a joint checking account with Frances. The chancellor “reserve[d] the right to amend [his] ruling should [he] make some error in law or fact that is called to [his] attention at a later time.”

¶ 7. On August 29, 2015, the chancery court entered its final order. The court authorized liberal visitation rights with Frances for family members, subject to the nursing home’s rules and regulations, and that visitation “shall be on site at the nursing home and shall not extend beyond 10:30 p.m, of any day, except family members may take Ms. McPhail out of the nursing home for [one ] night during a week for dinner or ice cream, etc.” (Emphasis added). This italicized language was a handwritten addition subsequently added by the chancellor after counsel met with the court to discuss the order’s language concerning visitation. However, no provision was made for any overnight visits.

¶ 8. The Appellants argue on appeal that the chancellor erred in modifying his bench opinion and in prohibiting overnight visitation in the final judgment. They further contend the court abused its discretion in choosing Pam as Frances’s guardian. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 9. Our appellate courts “employ[ ] a limited standard of review on appeals from chancery court.” Tenn. Props. Inc. v. Gillentine, 66 So.3d 695, 697 (¶ 9) (Miss. Ct. App. 2011) (citing Carp. Mgmt. v. Greene Cty., 23 So.3d 454, 459 (¶ 11) (Miss. 2009)). “As such, we will not disturb the factual findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.” Id. Questions of law, however, are reviewed de novo. Id. (citing Fletcher v. Lyles, 999 So.2d 1271, 1276 (¶ 20) (Miss. 2009)).

DISCUSSION

I. Whether the chancery court’s order failed to incorporate its bench ruling.

¶ 10. The Appellants argue that the chancery court’s final order is prejudicial, as it failed to reflect the court’s bench ruling, and should, be reversed. At the conclusion' of the hearing, the chancellor appointed Pam as guardian of the person and estate of Frances. The chancellor authorized visitation with family members, as long as the visits complied with the rules and regulations of the nursing home where Frances resided. When discussing overnight visits, Justin claimed that Frances could be out of the nursing home for up to fourteen days at a time. The chancellor merely held that it would be whatever the nursing home and Medicaid would allow, but he left it open for modification, stating:

Well, I tell you what let’s do. Y[ou] investigate that and what the nursing home will allow. And if she’s able and we can do it, you know, I might consider a petition to modify that some. But at this time, I think we need to go with what I’ve ruled. And I think any more than whatever a day or so, whatever they allow, I think, is based on her condition in my view of the witnesses and so forth. I think that’s where we need to be.

(Emphasis added). However, when the order was prepared by counsel, it failed to address the issue of overnight visits. Although the chancellor entered the subsequent handwritten amendment that allowed family members to take Frances out for “dinner or ice cream,” nothing in the order indicated that she would be allowed to leave for overnight visits.

¶ 11. “The Mississippi Supreme Court has held that ‘a chancellor’s bench ruling is not final, but subject to modification by that same chancellor.’ ” Hinson v. Hinson, 877 So.2d 547, 548 (¶ 5) (Miss. Ct. App. 2004) (quoting Grey v. Grey, 638 So.2d 488, 492 (Miss. 1994)). As Pam notes, the chancellor’s bench opinion “was prefaced with the [c]hancellor[’s] reserving the right to amend should he make some error in law or fact that is called to his attention at a later time.” Furthermore, the chancellor never explicitly held in his bench opinion that overnight visits would be allowed. Therefore, we find no merit to this argument.

II. Whether the chancery court erred in limiting visitation.

¶ 12. Alternatively, the Appellants argue that the chancery court abused its discretion in limiting their visitation with Frances and prohibiting overnight visitation. Pam claims that overnight visitation “disrupts Franceses] routine ... and if executed, would require a re-adjustment by her to the nursing home routine upon each return.”

¶ 13. We find no abuse of discretion in the chancery court’s ruling. The court allowed “liberal” visitation with Frances, as long as the visits comply with the rules and regulations of the nursing home. The prohibition of overnight visitation is for Frances’s well-being, which was the chancery court’s primary concern. As Frances’s physician, Dr. Charles Ozborn, testified in his deposition, “it’s a big job” to take care of someone in Frances’s condition, and she requires twenty-four-hour care. Frances is on several types of medication and, with her dementia, benefits from a structured environment. When asked whether Frances would “fare better” if her schedule were not disrupted, Dr. Ozborn replied, “[TJhat’s an obvious yes.... [0]ne of the things that’s really important is having a schedule.”

III. Whether the chancery court erred in appointing Pamela as guardian.

¶ 14. The Appellants argue the chancellor erred in appointing Pam as Frances’s guardian, contending there was “undisputed evidence at trial that Pam breached her fiduciary duties to Frances over and over again,” and they request appointment of Justin as guardian.

¶ 15. “[T]he purpose of guardian-ships and conservatorships is to provide an amount of protection to an individual who is, for a variety of reasons, unable fully to protect himself.” In re Guardianship of Estate of Lewis, 45 So.3d 313, 318 (¶ 15) (Miss. Ct. App. 2010). Therefore, “chancery courts generally are given wide discretion to ‘take all necessary steps to conserve and protect the best interest of these wards of the court’ in determining the appropriate person to be appointed as a conservator.” Ravenstein v. Ravenstein, 167 So.3d 210, 220 (¶ 21) (Miss. 2014) (quoting Union Chevrolet Co. v. Arrington, 162 Miss. 816, 826, 138 So. 593, 595 (1932)).

¶ 16. We find no abuse of discretion in denying the Appellants’ petition for guardianship. Justin agreed that Frances needed constant care but presented no specifics as to how he would care for Frances on a twenty-four-hour basis. He also admitted he had significant debt; so the chancellor was concerned about how he could support Frances’s care. Justin testified that he had custody of his son eveiy other week, and his mother acknowledged that she helped him with the child’s care when he visited. It was also noted that Enga was no longer agreeable to taking care of Frances, due to the family disagreement with Wayne and Pam. Page further testified that he and his mother, Patty, had recently opened a family-owned restaurant, open Monday through Saturday, and that he usually did not get home until after 10 p.m.

¶ 17. We also find there was substantial evidence to support the chancellor’s appointment of Pam as guardian. In 2006, Frances executed a Last Will and Testament, Power of Attorney, and Medical Power of Attorney, and nominated Pam as her guardian, should one need to be appointed. Frances was determined at that time to be of sound and disposing mind. There was evidence that Pam and Frances had full access to each other’s bank accounts, and Pam admitted that she treated the bank accounts as joint accounts, not “yours and mine.” But Pam denies that she took advantage of her mother. While the chancellor acknowledged that he “was not happy with the way [Pam] handled the money,” he reasoned that Pam had been Frances’s “full-time caregiver for over [twenty] years.” The two women had a common social life, traveling and shopping together. One of Frances’s neighbors, Irma Boland, testified on Pam’s behalf:

Q. And who was taking care of Ms. Frances in these two-and-a-half years when you noticed her health going down.
A. Pam.
Q. Did you see anybody else in the family?
A. No.
Q. When you were visiting in Ms. Frances house, how did Pam treat her mother?
A. She was very good to her.
Q. Did it appear that Pam was dedicated to the care of her mother?
A. Yes.

When asked whether he thought Pam was “supportive” of Frances, Dr. Ozborn testified:

She seems to be. She seems to be very interactive with her. I never saw any dissension between them. But, there again, I’ve only—her daughter has only been in the room when I’ve seen her two or three times. Twice, I think over the few months that she’s been here, she’s been in the room with her when I came around.

Moreover, the chancellor put protections in place to ensure Pam appropriately manages her mother’s funds, such as taking Pam’s name off the checking account and requiring her to pay her own utilities on the home. He also required Pam to submit an annual accounting.

¶18. Accordingly, we find no error in the chancery court’s decision to appoint Pam as guardian.

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

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

      . Frances was later moved to Golden Living Nursing Home in Eupora, Mississippi.

      . Justin resides in Grenada, Mississippi. His father, Wayne McPhail, is Frances's only son. Page and Patty, his mother, live in Long Beach. Justin later acknowledged that after some contentious interactions with other family members, Enga had changed her mind and did not wish for Frances to reside with her.

      .Pam moved back home with her mother in 1996 to help care for Pam's father, who had cancer. After his death, she continued to live with Frances; she is employed as a school teacher in Calhoun City. In 2003, Frances transferred the warranty deed for the real estate to Pam, but in 2006, Pam conveyed a life estate for the property to Frances.

      . Pam admitted at the motion hearing that she saw Justin and Frances in Grenada at some point that week, but she was reluctant to confront him directly, testifying that Justin "has an uncontrollable temper,"

      . Although it relates to child custody, this Court has recently held: "Unless we find that a chancery court’s determination regarding visitation and its restrictions is manifestly wrong or constitutes an abuse of discretion, we are bound to accept its findings.” Bolivar v. Waltman, 194 So.3d 889, 893 (¶ 6) (Miss. Ct. App. 2016) (citing Lofton v. Lofton, 176 So.3d 1184, 1186 (¶ 5) (Miss. Ct. App. 2015)).