author: WILSON, J., FOR THE COURT: LEE, C.J., DISSENTING:

text:
    John Tate CAMPBELL, Appellant v. HARRISON COUNTY BOARD OF SUPERVISORS, Harrison County Sand Beach Authority and Harrison County, Mississippi, Appellees
    NO. 2017-CA-00961-COA
    Court of Appeals of Mississippi.
    November 15, 2018 Rehearing Denied February 12, 2019
    ATTORNEY FOR APPELLANT: OWEN J. BRADLEY
    ATTORNEYS FOR APPELLEES: TIM C. HOLLEMAN, Gulfport, PATRICK TAYLOR GUILD
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. John Tate Campbell was seriously injured when he fell into an open drainage channel while walking on the beach late at night without a flashlight. The channel, which is sixteen to eighteen feet wide, is on the beach near the Courthouse Road Pier in Gulfport.

¶ 2. Campbell sued Harrison County under the Mississippi Tort Claims Act, alleging that the county negligently failed to protect him from and warn him of a dangerous condition. The circuit court granted summary judgment in favor of the county.

¶ 3. We hold that the wide drainage channel is an "open and obvious" condition and that Campbell's own negligence in walking straight into it was the sole proximate cause of his injury. Therefore, we affirm the circuit court's order granting summary judgment.

FACTS AND PROCEDURAL HISTORY

¶ 4. In the 1920s, a seawall was constructed south of Highway 90 on the Mississippi Gulf Coast to protect the highway from erosion. Subsequently, beaches south of the seawall disappeared due to the new wave patterns caused by the seawall and erosion. Then, in 1947, a severe hurricane destroyed a considerable part of the highway and seawall. In the early 1950s, sand was pumped in from the Mississippi Sound to create a sand beach south of the seawall to protect the seawall and the highway from future hurricanes.

¶ 5. Numerous drainage pipes were installed to drain surface water and rainwater from upland areas and the highway through the seawall to the Mississippi Sound. Most of the water drains through underground pipes that run under the sand beach to the Sound. However, there are eleven open drainage channels in areas where underground pipes are insufficient to handle the runoff. The open channels have been on the beaches since the 1950s. Three of the channels are fenced or partially covered; the other eight are not. Post-Hurricane Katrina, in approximately 2008, the beaches were replenished, and pedestrian bridges were built over some of the channels, along with signs that state: "CAUTION[;] OPEN CHANNEL[;] CROSS AT SEAWALL OR PEDESTRIAN BRIDGE.

¶ 6. This case involves the open drainage channel near the Courthouse Road Pier in Gulfport. This channel is sixteen to eighteen feet wide. It runs from the seawall across the sand beach to the water of the Mississippi Sound. It has been there since the early 1950s. One-foot-square concrete "spreader beams" extend across the width of the channel every ten feet or so. A pedestrian bridge on the beach also crosses the channel. It appears that the channel is about eight to ten feet deep. The water level in the channel varies.

¶ 7. On August 27, 2014, around 11 p.m., Campbell and his fiancee, Angela Smith, were visiting a friend, Will Bradley, at his house in Gulfport. Bradley lived near Texas Avenue a few blocks north of Highway 90. Campbell, Smith, Bradley, and Bradley's date decided to go for a walk on the beach. No one in the group carried a flashlight or any other source of light.

¶ 8. The group walked south from Bradley's house, crossed over Highway 90 and the seawall, and walked onto the beach and down to the water's edge. At that point, according to Campbell, they "kind of broke up into couples," and "were having just a romantic stroll," "holding hands" and "making out." Campbell testified that he was wearing some nice shoes, and he noticed that the water was ruining them. Campbell also "wanted to go use the bathroom," which was close to a nearby parking lot. Campbell also testified that he was becoming "embarrassed" because he is "a big boy" and was "sweating" and "huffing and puffing" from the walk to the beach. So, after only a short stroll along the water's edge, Campbell "let go of [Smith's] hand" and "started walking in front of [her]" away from the water. Smith testified that, over a relatively short distance, Campbell walked far enough ahead of her that Bradley and his date were walking between them. Smith testified that the four of them "were scattered about" as they walked away from the water, so she was unsure whether the others took "the exact same path as [she did]."

¶ 9. Campbell walked away from the water in a northeasterly direction, toward a parking lot near the pier. Campbell testified that he saw the one-foot-square "spreader beams" that extend across the open drainage channel every teen feet or so. Indeed, he testified that he saw the beams when he was still thirty or forty yards away from the channel. However, Campbell testified that, in the dark, he thought that the concrete spreader beams were actually "parking lot bumpers" in the parking lot. Campbell testified that after he saw the concrete beams from a distance of thirty or forty yards, he "paid no attention to [the beams]" and just continued "walking forward" and "looking forward" until he suddenly fell into the channel. Campbell claimed that he never actually saw the channel before he fell into it. He testified that the channel was not "visible" in the darkness. Smith similarly testified that the beach was dark enough that she could not tell what the channel was until she got down on her knees, crawled up to the channel, and touched it with her hands.

¶ 10. When Campbell fell into the channel, the water was only knee-deep or waist-deep. Campbell suffered severe compound/open fractures to his left tibia and fibula and other severe injuries to his leg. Campbell was unable to pull himself out of the channel, and Smith and Bradley were also unable to pull him out. Smith eventually climbed into the channel with Campbell to try to help him. A few minutes later an ambulance and the fire department arrived, and they were able to remove Campbell from the channel. Campbell was taken to the hospital. He required extensive treatment and multiple surgeries to repair his leg and to treat infections to his leg.

¶ 11. In November 2015, having previously filed a notice of claim pursuant to Mississippi Tort Claims Act (MTCA), see Miss. Code Ann. § 11-46-11 (Rev. 2012), Campbell filed suit against Harrison County in the Harrison County Circuit Court. The county answered, denied liability, and asserted various defenses, including immunities and exemptions from liability under the MTCA. Following discovery, the county filed a motion for summary judgment, arguing that it was exempt from liability pursuant to Mississippi Code Annotated section 11-46-9(1)(v) (Rev. 2012) and had "committed no act of negligence which proximately caused or contributed to [Campbell's] accident and injuries."

¶ 12. Following a hearing on the county's motion, the circuit court granted summary judgment in favor of the county. The court held that the exemption in section 11-46-9(1)(v) applied because the drainage channel was an "open and obvious" condition. The court also concluded that Campbell's injuries were attributable to his decision to proceed through an unfamiliar area in the dark. Campbell filed a timely notice of appeal.

ANALYSIS

¶ 13. "We review the grant ... of a motion for summary judgment de novo, viewing the evidence in the light most favorable to the party against whom the motion has been made." Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013) (quotation marks omitted). The circuit court's rulings on questions of law and statutory interpretation are also reviewed de novo. City of Jackson v. Harris , 44 So.3d 927, 931 (¶ 19) (Miss. 2010). We will affirm if an order granting summary judgment if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c) ; see Stroud v. Progressive Gulf Ins. Co. , 239 So.3d 516, 526 (¶ 31) (Miss. Ct. App. 2017).

¶ 14. The MTCA waives "the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment." Miss. Code Ann. § 11-46-5(1) (Rev. 2012). However, the MTCA also provides that a governmental entity "shall not be liable" in a variety of contexts and circumstances. Miss. Code Ann. § 11-46-9(1). As relevant in this case,

A governmental entity ... shall not be liable for any claim ... [a]rising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care ....

Id. at (v) (emphasis added).

¶ 15. This Court has recognized that the italicized "provided" clause "is a complete bar in a Tort Claims Act case for the failure to warn of a dangerous condition." City of Natchez v. Jackson , 941 So.2d 865, 876 (¶ 33) (Miss. Ct. App. 2006). Thus, a governmental entity shall not be held liable for the failure to warn of an "open and obvious" condition. Id. However, the open-and-obvious defense is not a complete bar to recovery for every premises liability claim against a governmental entity. Calonkey v. Amory Sch. Dist. , 163 So.3d 940, 943 (¶ 14) (Miss. Ct. App. 2014). Rather, "as the statute clearly states, the fact that a dangerous condition is obvious only exempts the [governmental entity] from liability for the failure to warn of the condition." Id. "It is not a bar to recovery when the issue is the government's negligent maintenance or repair which led to the dangerous condition." City of Natchez , 941 So.2d at 876 (¶ 33) ; accord City of Jackson v. Internal Engine Parts Grp. Inc. , 903 So.2d 60, 64 (¶ 11) (Miss. 2005) ; Calonkey , 163 So.3d at 943 (¶ 14).

¶ 16. The channel in this case is sixteen to eighteen feet wide. Since the 1950s, it has run from the seawall all the way across the sand beach to the water of the Mississippi Sound. One-foot-square concrete "spreader beams" extend across the width of the channel every ten feet or so. In addition, a pedestrian bridge on the beach traverses the channel. The circuit court correctly held that this drainage channel is an open and obvious condition as a matter of law. In the language of the statute, "one exercising due care" for his own safety could not fail to notice this channel. Miss. Code Ann. § 11-46-9(1)(v).

¶ 17. "Just how open and obvious a condition may have been is a question for the jury, in all except the clearest of cases." Bell v. City of Bay St. Louis , 467 So.2d 657, 664 (Miss. 1985). But "[t]he case sub judice is one of those clearest cases." Fulton v. Robinson Indus. Inc. , 664 So.2d 170, 176 (Miss. 1995). In Fulton , the Supreme Court held that a snow-covered parking lot was an open and obvious condition. Id. In Howard v. City of Biloxi , 943 So.2d 751 (Miss. Ct. App. 2006), this Court held that a ½" to 1 ½" unevenness in a sidewalk was an open and obvious condition. Id. at 753, 756 (¶¶ 2, 14-15). We did so based on "our review of the photographs presented by [the plaintiff]." Id. at 756 (¶ 15). And in Mayfield , the Supreme Court held that uneven pavement that "jutted up" about two inches over a step was an open and obvious condition. Mayfield , 903 So.2d at 734, 736 (¶¶ 3, 13-14). The sixteen- to eighteen-foot-wide channel in this case, as depicted in multiple photographs submitted by Campbell, is at least as "open and obvious" as the conditions in Fulton , Howard , and Mayfield -which were all deemed open and obvious as a matter of law. Therefore, the county was entitled to summary judgment claim on any failure-to-warn claim. Miss. Code Ann. § 11-46-9(1)(v).

¶ 18. As discussed above, under both the Tort Claims Act and common law, "the fact that a dangerous condition is obvious only exempts [a governmental entity] from liability for the failure to warn of the condition." Calonkey , 163 So.3d at 943 (¶ 14). The obviousness of a dangerous condition does not exempt the governmental entity from liability if the plaintiff can show that the condition existed or was not corrected because the governmental entity negligently failed to maintain the premises in a reasonably safe condition. Thus, in most cases like this one, in which the plaintiff alleges that the defendant negligently created or failed to protect invitees from a dangerous condition, "[t]he 'open and obvious' standard is simply a comparative negligence defense used to compare the negligence of the plaintiff to the negligence of the defendant." Mayfield , 903 So.2d at 737 (¶ 18) (quoting Tharp v. Bunge Corp. , 641 So.2d 20, 24-25 (Miss. 1994) ).

¶ 19. However, the Supreme Court has also held that "the open and obvious defense [remains] a complete bar to a negligence claim" if "the plaintiff [is] one hundred percent (100%) negligent himself." Fulton , 664 So.2d at 176 (quoting Tharp , 641 So.2d at 23 ). Of critical importance to this case, "[t]he invitee is still required to use in the interest of his own safety that degree of care and prudence which a person of ordinary intelligence would exercise under the same or similar circumstance." Id. at 175 ; accord O'Keeffe v. Biloxi Casino Corp. , 76 So.3d 726, 732 (¶ 24) (Miss. Ct. App. 2011). This is because "a property owner is not the insurer of an invitee's safety." Double Quick Inc. v. Moore , 73 So.3d 1162, 1166 (¶ 13) (Miss. 2011). The property owner "owes a duty to an invitee to exercise reasonable or ordinary care to keep the premises in a reasonably safe condition." Fulton , 664 So.2d at 175 (emphasis added). "[T]he owner 'is not required to keep the premises absolutely safe, or in such a condition that no accident could possibly happen to a customer.' " Penny Pinchers v. Outlaw , 61 So.3d 245, 249 (¶ 14) (Miss. Ct. App. 2011) (quoting Stanley v. Morgan & Lindsey Inc. , 203 So.2d 473, 476 (Miss. 1967) ).

¶ 20. In this case, we can only conclude that the sole proximate cause of Campbell's injury was his own negligence in walking directly into this wide, open, and obvious channel. Campbell claims that the county should have covered the channel or put a fence around it. However, this channel and similar channels have been on the Harrison County beaches since the early 1950s, and there is no evidence that any anyone other than Campbell has ever been injured by any of them. Chuck Loftis, the director of the county sand beach department, testified that he had worked for the county for twenty-seven years and was not aware of any other incident in which someone had been injured by falling into any of the channels. Cf. Vivians v. Baptist Healthplex , 234 So.3d 304, 310 (¶ 23) (Miss. 2017) (Dickinson, P.J., specially concurring) ("Were there [no similar incidents on allegedly dangerous pool steps], no reasonable jury could conclude that the steps were unreasonably dangerous."). Simply put, Campbell would not have suffered any injured whatsoever if he had been paying attention and exercising minimal care for "his own safety." Fulton , 664 So.2d at 175.

¶ 21. In his deposition, Campbell admitted that the channel is open and obvious in the daytime. He claimed, though, that it was not open or obvious when he fell into it after 11 p.m., when, as one would expect, it was dark on the beach. Campbell also claimed that at the time of his injury the beach was dark enough that he could not see the channel-but, contradictorily, not so dark that it was unsafe for him to walk in an unfamiliar area without a flashlight.

¶ 22. As discussed above, Campbell testified that he suddenly walked away from Smith and the water because the water was messing up his shoes, because he wanted to find a bathroom, and because he was embarrassed to be sweating and "huffing and puffing." He testified that when he was still thirty or forty yards away from the channel, he could see the concrete spreader beams that cross the channel, but he thought they were "parking lot bumpers." Campbell claimed that he never actually saw the channel before he fell into it. He testified that the channel was not "visible" in the darkness. Smith similarly testified that the beach was dark enough that she could not tell what the channel was until she got down on her knees and touched it. Campbell testified that after he saw the concrete beams from thirty or forty yards away, he "paid no attention to them" and just continued "walking forward" and "looking forward" until he suddenly fell in.

¶ 23. Although Campbell claimed that it was too dark to see the sixteen- to eighteen-foot-wide drainage channel, he also testified that "[i]t wasn't dark enough to where [he] couldn't see." And although it was after 11 p.m. and Campbell had never visited this stretch of the beach before, he asserted that he "didn't need a flashlight." Campbell did admit, though, that he would not have fallen into the channel if he had been using a flashlight.

¶ 24. Campbell tried to describe a beach too dark for him to see this open and obvious channel but yet still light enough to excuse his decision to walk in an unfamiliar area late at night without a flashlight. On the undisputed facts of this case, that is not possible. The county is entitled to judgment as a matter of law regardless of exactly how much light there was when Campbell was injured. On one hand, if there was enough light to see the channel, then the channel was so open and obvious that Campbell's own negligence in walking straight into it was the sole proximate cause of his injury. On the other hand, if it was too dark to see this wide channel, then Campbell's own negligence in barreling across unfamiliar terrain late at night and without a flashlight was the sole proximate cause of his injury. See Selby v. McWilliams Realty Corp. , 246 Miss. 568, 573, 151 So.2d 596, 597-98 (1963) (holding that a newspaper deliveryman who fell into an open elevator shaft after entering into a completely dark building at 2:30 a.m. "was not exercising reasonable care for his own safety and his negligence was the sole proximate cause of his injuries"). Either way, Campbell was not using ordinary "prudence and care" for "his own safety." Fulton , 664 So.2d at 175. His own negligence was the sole proximate cause of his own injuries. Id. at 176 (citing Tharp , 641 So.2d at 23 ).

¶ 25. "Common sense must occasionally prevail and this case absolutely mandates common sense application." Id. at 175. The injury in this case, though serious, "belong[s] to a class of ordinary accidents which are properly imputed to the carelessness [and] misfortune of the one injured." Id. at 176 (quoting Mercy Reg'l Med. Ctr. v. Doiron , 348 So.2d 243, 246 (Miss. 1977) ). The circuit court properly granted the county's motion for summary judgment because there is no genuine issue of material fact, and the county is entitled to judgment as a matter of law.

¶ 26. AFFIRMED.

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

LEE, C.J., DISSENTING:

¶ 27. I respectfully dissent. The circuit court incorrectly granted summary judgment to Harrison County on all of Campbell's claims based on its determination that the culvert into which Campbell fell was open and obvious to one exercising due care. The majority likewise finds that this is one of the rare "clearest of cases" where the open-and-obvious nature of a condition may be decided on summary judgment. The majority concludes that the culvert was open and obvious as a matter of law from the size of the culvert alone, barring Campbell's failure-to-warn claim under the Mississippi Tort Claims Act (MTCA). The majority additionally concludes that Campbell was 100% at fault for the accident for not carrying a flashlight, thus barring his remaining negligence claims. But there is no support in the record for either of these findings nor has the circuit court-the fact finder-made any factual findings on the majority's latter conclusion regarding the comparative negligence of the parties.

¶ 28. Because genuine issues of material fact exist regarding whether the culvert was open and obvious and whether Harrison County bore any responsibility, or comparative fault, for the accident, this case should be reversed and remanded to the circuit court for further proceedings.

1. Genuine issues of material fact exist as to whether the culvert is open and obvious.

¶ 29. Campbell's and Angela Smith's testimonies create a genuine issue of material fact as to whether the culvert was "a dangerous condition which is obvious to one exercising due care ...." Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2012). Campbell and Smith testified that around 11 p.m. when Campbell fell into the culvert, the area of the public beach near the culvert was somewhat lit by streetlights in the nearby parking lot and along Highway 90. Campbell and Smith and another couple had walked from a house near the beach and had been walking without issue until Campbell fell into the culvert.

¶ 30. Campbell testified that the beach was well lit enough that the four members of the group "didn't need a flashlight." He stated, "it was nighttime, but it wasn't dark enough where I needed a flashlight." Campbell testified that shortly before falling into the culvert, he saw benches, trees, and a fire pit on the beach and one-foot beams he thought were parking-lot bumpers. He could also see cars parked in the nearby parking lot. He then saw a "shadow" that turned out to be the culvert where he fell. Smith testified she was able to see objects on the beach as well, including the benches and fire pit, shortly before reaching the culvert. She did not see the culvert. Like Campbell, Smith was unfamiliar with the area and did not know the culverts existed. Due to the depth of the culvert and the fact that it only contained a shallow amount of water, Campbell suffered extensive injuries when he fell, including a severe open fracture to his lower left leg and a gangrenous infection due to bacteria in the sea water.

¶ 31. In addition to Campbell's and Smith's testimonies creating doubt as to the obvious nature of the culvert, Chuck Loftis's testimony did as well. Loftis was the director of the Sand Beach Department at the time of Campbell's accident. His testimony was the only evidence Harrison County presented in support of its contention that the culvert was open and obvious. Loftis testified that he was unaware of anyone else falling into one of the culverts and that he thought the culverts were obvious such that it was unnecessary to cover them. But Campbell testified, albeit through hearsay, that he had been told another person fell into a culvert the same day he did. And Loftis's statements that he thought the culverts were obvious and should not be covered are not convincing because his statements always came back to his concern that the covers would create additional maintenance responsibilities for the county. When asked whether all the culverts should be covered, he stated, "I don't think so ... because we have to maintain them. For maintenance wise, I would not suggest putting it across all of them."

¶ 32. Further, Loftis's testimony that the culverts are obvious and should not be covered is contradicted by Harrison County's Sand Beach Master Plan, which was introduced into evidence during Loftis's deposition. It states:

The overall design of the open culverts along the beach steps can be enhanced to make them safer and to fit the desired appearance of the beach. When the open culverts are present, wooden bridges should be provided at intervals to allow pedestrians to cross. This will make crossing the culverts safer. There are currently no guardrails along the sides of the open flow culverts which poses a safety risk for beach goers. Guardrails along the open flow culverts and bridges will reduce the risk.... These culverts can be covered or fenced and have bridges added to safely allow pedestrians to cross.

(Emphasis added).

¶ 33. Loftis testified that three of the eleven culverts had been either partially covered or fenced. A culvert in Biloxi had been partially covered by a plastic cover. A culvert in Long Beach near the Long Beach Pavilion had a fence around it. And the culvert near the VA Hospital in Gulfport had a wooden barricade between a walkway or pedestrian pathway and the open channel because, according to Loftis, "it's more than a 32-inch drop from here where this open channel is, so [Harrison County has] to have this rail." It is not explained why a "more than ... 32-inch drop" required a rail in this instance, but a ten-foot drop into a culvert in another location did not.

¶ 34. It is true that Harrison County is not the insurer of public safety at the beach. Certainly, obviously dangerous conditions exist on public beaches, and inherent risks are taken by beach goers for which the county is not responsible. However, it has not been established that, objectively speaking, a reasonable person exercising caution who is unfamiliar with the area would find a ten-foot-deep culvert, flush with the ground, open and obvious. Campbell and Smith certainly did not. Rather, as Campbell stated, "It's a hole in the middle of a walkway on a very busy beach ...."

¶ 35. Based on the evidence presented, a genuine issue of material fact remains-like this Court found in Calonkey v. Amory School District , 163 So.3d 940 (Miss. Ct. App. 2014), cert. denied , 163 So.3d 301 (Miss. 2015) -whether the culvert was obvious. In Calonkey , the plaintiff fell through "a giant exposed hole in the middle" of a catwalk ten feet above a stage at a public high school. Id. at 942 (¶ 6). The circuit court granted summary judgment in favor of the school district on the basis that the hole was open and obvious. Id. at (¶ 9). This Court reversed and remanded, finding that whether the hole was open and obvious was a question of disputed fact that could not be resolved on summary judgment. Id. at 943 (¶ 15). We found dispositive Calonkey's testimony that "the catwalk was dark and covered with debris."

Id. And even though "other portions of his testimony suggested otherwise," on summary judgment, the evidence is viewed in the light most favorable to the nonmovant. Id.

¶ 36. Here, the majority finds that the culvert was open and obvious because of its size alone and that Campbell was 100% negligent because it was dark and he was not carrying a flashlight. But the same facts were present in Calonkey -the plaintiff fell through "a giant exposed hole" in the dark-and this Court found summary judgment was inappropriate. There is no mention of a flashlight in Calonkey .

¶ 37. Viewing the evidence in the light most favorable to Campbell, the testimony and Sand Beach Master Plan create doubt as to the obvious nature of the culvert. The beach is open to the public both day and night, and visitors are encouraged to come to the beach for recreation and tourism. The culvert is not a natural hazard a person may expect to see at a beach; rather, it is an eight-to-ten-foot deep, manmade open pit flush with the ground. And Harrison County acknowledged the potentially hidden danger posed by the culverts by placing warning signs on each side of the culverts and by partially covering or fencing three of the culverts.

¶ 38. "Where doubt exists as to whether there is a genuine issue of material fact, the trial judge should err on the side of denying [summary judgment] and permitting a full trial on the merits." Ellis v. Powe , 645 So.2d 947, 950 (Miss. 1994). As doubt exists, the circuit court's grant of summary judgment should be reversed.

2. Genuine issues of material fact exist regarding the parties' comparative fault.

¶ 39. As recognized by the majority, under Mississippi's comparative-negligence law, summary judgment in favor of Harrison County on Campbell's negligence claims is appropriate only if Campbell is determined to be 100% at fault for the accident. Fulton v. Robinson Indus. Inc. , 664 So.2d 170, 176 (Miss. 1995). But "it is the [fact finder]'s responsibility to [determine relative fault and] assess percentages of fault between two parties." McLaughlin v. N. Drew Freight Inc. , 249 So.3d 1081, 1085 (¶ 14) (Miss. Ct. App. 2018).

¶ 40. The circuit court made no findings on fault because it found the suit barred under the MTCA's open-and-obvious defense. In so finding, the circuit court incorrectly stated that "[t]he 'open and obvious' defense" in section 11-46-9(1)(v) is "a complete bar to recovery in suits involving governmental entities and gives said entities complete protection from liability." (Emphasis added). Section 11-46-9(1)(v) clearly states that an obviously dangerous condition "only exempts [a governmental entity] from liability for the failure to warn of the condition." Calonkey , 163 So.3d at 943 (¶ 14) (emphasis added). "It does not exempt [a governmental entity] from liability for causing the dangerous condition through the negligent or willful actions of its employees" or for negligence in "constructing and maintaining" the dangerous condition. Id.

¶ 41. Campbell alleged claims in his complaint regarding Harrison County's failure to "maintain, inspect, repair and remedy the dangerous condition"; failure to cover the culverts or erect fences or other structures to prevent falls into the culverts; and failure to provide adequate lighting around the culvert and safety equipment in or near the culvert to assist a person out of the culvert. These claims have not been addressed by the circuit court because the circuit court simply found Campbell's suit was barred by the MTCA. Thus, the determination of fault is not appropriate for this Court's review. See Olier v. Bailey , 164 So.3d 982, 995 (¶ 44) (Miss. 2015) ("Several questions are left unanswered regarding the relative fault of the two parties, but those are not for our decision. Only a trial can settle those questions.").

¶ 42. Because questions of material fact exist regarding the open and obvious nature of the culvert and no determination has been made as to the parties' comparative fault, summary judgment was improperly granted. This matter should be reversed and remanded to the circuit court for further proceedings.

BARNES, FAIR, GREENLEE AND WESTBROOKS, JJ., JOIN THIS OPINION.

      This history is also discussed in United States v. Harrison Cty. , 399 F.2d 485 (5th Cir. 1968), and Harrison Cty. v. Guice , 244 Miss. 95, 140 So.2d 838 (1962), overruled by Miss. State Hwy. Comm'n v. Gilich , 609 So.2d 367 (Miss. 1992).

      Harrison County states that the Army Corps of Engineers originally constructed these channels and that the State actually owns the man-made sand beach. However, the county acknowledges that it is charged by statute with maintaining the beach for the public, including the drainage channels.

      This woman was already with Bradley when Campbell and Smith arrived at Bradley's house. Neither Campbell nor Smith could recall her name.

      Campbell's complaint named Harrison County, its board of supervisors, and the Harrison County Sand Beach Authority as defendants. In their answer, the defendants asserted that the board of supervisors and the Sand Beach Authority were not proper defendants. We will refer to the defendants collectively as the county.

      Neither a governmental entity nor a private landowner has any duty to warn of an open and obvious condition. Compare City of Natchez , 941 So.2d at 876 (¶ 33) ("While both parties concede that 'open and obvious' is not a complete bar to recovery in this case, we recognize that it is a complete bar in a Tort Claims Act case for the failure to warn of a dangerous condition."), with Mayfield v. The Hairbender , 903 So.2d 733, 736 (¶ 12) (Miss. 2005) ("[A]n invitee may not recover for failure to warn of an open and obvious danger."), id. at 737 (¶ 20) ("A landowner owes an invitee the duty ... to warn only where there is hidden danger or peril that is not in plain and open view."), id. at 738 (¶ 21) (holding that the landowner "had no duty to warn of an open and obvious danger"). On this issue, there is no significant difference between the law under the Tort Claims Act and the common law applicable to private landowners.

      During oral argument in this Court, the county asserted that Campbell was a licensee, not an invitee. However, the county did not raise that issue in its motion for summary judgment in the circuit court or in its brief on appeal.

      Loftis had worked for the sand beach department for twenty-five years and had been its director since 2011. In his deposition, Campbell asserted that someone from "the fire department told [him]" that "a woman fell in the same day [he] did." This was pure hearsay and obviously was not competent summary judgment evidence. Karpinsky , 109 So.3d at 90-92 (¶¶ 20-24) ; see M.R.C.P. 56(e). Campbell presented no evidence to corroborate his assertion. Nor did he present any evidence of any similar incident in the six-plus decades that the channels have been on the beach.

      Campbell had lived on the Mississippi Gulf Coast for a number of years at different times in his life, but he testified that he had never walked on this particular beach or noticed this channel or any of the other open drainage channels on the Mississippi beaches.

      Cf. Blackston v. George County , 102 So.3d 1182, 1186-87 (¶¶ 21-22) (Miss. Ct. App. 2012) (finding the county had no duty to warn of "a mound of dirt" on the side of a road at night where the plaintiff knew dirt work was occurring and the dirt mound was open and obvious). A culvert flush with the ground is distinguishable from a mound of dirt that was visible to anyone driving past.

      Campbell remained in the culvert until an ambulance arrived. He was unable to climb the sheer ten-foot side of the culvert to get out, and his friends were unable to pull him out. Campbell argues the time spent in the culvert's shallow, stagnant water resulted in a gangrenous infection in his leg from the bacteria in the water. No factual determination has been made regarding whether Harrison County bore any responsibility for not providing an escape from the culvert or any other of these claims.


source: Caselaw Access Project

author: CARLTON, J., FOR THE COURT:

license: Public Domain

text:
    Timothy OWENS a/k/a Timothy Owens Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01044-COA
    Court of Appeals of Mississippi.
    December 4, 2018 Rehearing Denied March 5, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, JACKSON.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON.
    BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Timothy Owens was convicted of first-degree murder and sentenced to life in prison. Owens now appeals his conviction and sentence, arguing the following assignments of error: (1) the evidence was insufficient to support the conviction; (2) Owens was prejudiced by ineffective assistance of counsel; and (3) comments made by the State during closing arguments constituted prosecutorial misconduct, thus rendering Owens's trial unfair.

¶ 2. After reviewing the record, we find no error, and we affirm the trial court's judgment.

FACTS

¶ 3. On May 27, 2015, police officers from the Jackson Police Department responded to a call about a shooting on Cox Street. When the officers arrived, they discovered the deceased body of Ruth Williams. After an investigation, officers arrested Owens, who was in a romantic relationship with Ruth and living with her at the time of the shooting, and charged him with Ruth's murder.

¶ 4. Marcus Williams, Ruth's son, testified that at the time of the shooting, he was living with his mother and Owens. Marcus testified that his mother and Owens had been friends for years before their relationship became intimate. Marcus testified that on the evening of May 27, 2015, he arrived home from work and went next door to do laundry. Marcus testified that during this time, both Ruth and Owens were home. Marcus said that when he returned home from doing laundry, Ruth asked him to bring her a glass of water. Marcus testified that he brought a glass of water to Ruth, who was sitting in a recliner in her bedroom. Marcus stated that Owens was also in the bedroom, lying on the bed. Marcus testified that when he walked out of the bedroom, he looked out of the corner of his eye and saw Owens get out off of the bed and close the bedroom door. Marcus then heard Owens call Ruth a "bitch." Ruth responded "I ain't no bitch. The bitch who brought you here is down the street," referring to Owens's mother.

¶ 5. Marcus stated that after exiting the bedroom, he walked past the bathroom and toward the kitchen. Marcus stated that as he passed the bathroom, he heard gunshots. Marcus called out to Ruth, and he heard Ruth call out his name in response. Marcus then went to the bedroom, kicked the door in, and saw Ruth on the floor by the recliner near the foot of the bed. Marcus testified that he could see "the blood running from the top of her body." According to Marcus, Owens was still sitting on the bed, but he got up and pointed a gun at Marcus once Marcus entered the bedroom. Marcus testified that he took off running and called 911. Marcus stated that after he called 911, he walked to Owens's mother's house, who lived approximately three houses away, and "let her know that her son shot my mother." At trial, Marcus testified that Owens "shot my momma five times."

¶ 6. Marcus stated that after he spoke to Owens's mother, Owens's family ran to Marcus's house. Marcus explained that they had to wait approximately 45 minutes for an ambulance, and during that time, Owens was still inside of the house. Marcus testified that Owens's family members were trying to calm Owens down because Owens was pointing a gun at Marcus and Kiesha Owens, Owens's sister.

¶ 7. Kiesha testified that in May 2015, she lived three houses down from Owens and Ruth on Cox Street. Kiesha stated that on the evening of May 27, 2015, Kiesha's niece came into the house and said "there was a shooting down the street at [Owens's] house." Kiesha said that at first she ignored her niece, but then when her niece repeated that "they [are] shooting" at Owens's house, Kiesha ran down to Owens's house.

¶ 8. Kiesha testified that when she arrived at Owens's house, Marcus's brother, Rufus, and another man who was holding a gun, were standing at the door. Kiesha entered the house, where she saw Marcus and her nephew, Tiny, running out of the bathroom. Marcus then stood in the living room. Kiesha testified that the bedroom door was locked, so she knocked on the door and called out to Owens: "[T]his is your sister, Kiesha; let me in." Owens eventually opened the door, and then he went back to the bed and held a gun to his head. According to Kiesha, Owens did not look like himself, and Owens asked her to just let him kill himself. Kiesha stated that saw Ruth on the floor. Kiesha testified that she checked Ruth's pulse and felt a light pulse. Kiesha asked Owens to let her get help for Ruth. Kiesha also testified that "in the midst of me talking to him and checking on ... Ruth[,] I hear people in the background yelling please do not shoot. Please do not shoot." Kiesha asked Owens to put the gun down, and Owens "proceeded to put the gun down on the bed[.]" Kiesha asked Owens what happened, and he responded that Ruth "told [him] that she was going to f*ck somebody." Kiesha grabbed the gun off of the bed and ran out of the house. Kiesha stated that she handed the gun to a police officer who was standing across the street from Owens's house.

¶ 9. Detective Richard Washington of the Jackson Police Department testified that on the evening of May 27, 2015, he responded to a call about a shooting on Cox Street. Detective Washington testified that once he arrived at Owens's house, other police officers had already secured the scene. Detective Washington entered the house and walked into the bedroom, where he observed Ruth on the bedroom floor, deceased. Detective Washington stated that police officers retrieved a gun from the scene, and the officers determined that the gun belonged to Owens.

¶ 10. Officer Robert Watts worked as a crime-scene investigator for the Jackson Police Department in May 2015. Officer Watts testified that on May 27, 2015, he photographed the crime scene on Cox Street. Officer Watts stated that the weapon recovered from the scene was a Taurus .38 special revolver that could hold five rounds. Officer Watts testified that when the gun was examined, it was determined to contain four live rounds and one spent shell casing. Officer Watts explained that "[a] live round is a bullet that has not been fired, and a spent shell casing is a bullet that has been fired." Officer Watts also testified that a bullet was recovered from under Ruth's body.

¶ 11. Dr. Brent Davis, a medical examiner and forensic pathologist at the Mississippi State Medical Examiner's office, testified as an expert in the field of forensic pathology. Dr. Davis testified that he performed Ruth's autopsy, and he observed that she was shot five times, including two times in her abdomen. Dr. Davis testified that he recovered three bullets from Ruth's body during his examination. The three bullets were admitted into evidence. After performing the autopsy, Dr. Davis opined that Ruth's cause of death was "multiple gunshot wounds, and the manner of death is homicide."

¶ 12. After the State rested, defense counsel acknowledged that "typically this is the portion of the trial where the defense will make a motion for a directive verdict because the State has rested." However, defense counsel requested that the trial court allow the defense "to reserve that motion until after the defense has been heard this time only because at this point I would have to make the same argument again twice, and if the Court has no objection, I just prefer to just do it once and make that argument at the close of the defense case[.]" The trial court granted the defense's request.

¶ 13. Owens testified in his own defense, stating that on May 27, 2015, he and Ruth got into an argument that lasted all day. Owens testified that Ruth became angry when Owens was unable to drive Marcus to work that morning. Owens stated that at one point during the evening, he and Ruth were arguing in the bedroom. During that time, Ruth received a phone call, so she left the bedroom. Owens testified that he was upset that Ruth left the room to answer the phone and that she would not take the phone call in front of him. After Ruth got off the phone, she returned to the bedroom. Owens testified that when Ruth returned to the bedroom, he asked her about the phone call. According to Owens, Ruth told him that she had been on the phone with another man. Ruth then told Owens that she could do whatever she wanted to do, she could have sexual relationships with whomever she wanted to, and she could do it in front of Owens. Owens responded "That's the way that bitches act." Owens testified that Ruth told him "this is the last time that you going to ever call me a bitch. I'm the last person you ever going to see .... [A]s soon as my two sons get here[,] you'll find out." Owens stated that Ruth then called Marcus into the bedroom. Owens testified that Marcus "enter[ed] the room for just a second, went out, and closed t[he] door."

¶ 14. Owens testified that as soon as Marcus left the room, Ruth jumped up and reached for the .38 revolver. Owens then "lunged" toward her, and he ended up with the gun. Owens testified that he heard the gun go off and fire "maybe" twice, but he did not know that Ruth was shot. Owens saw Ruth step back and fall down. Owens testified that "[a]t that point I completely just froze" and had no memory of anything else until Kiesha knocked on the bedroom door. Owens did recall holding a gun to his head and observing Kiesha asking him if she could help Ruth.

¶ 15. Owens testified that when the police arrived, he was still in a state of shock. During cross-examination, he admitted that when the detectives interviewed him, Owens stated that "[he] knew [he] had effed up." Owens also admitted at trial that during his police interview on May 27, 2015, after the shooting, he did not tell the detectives his version of the events regarding Ruth jumping up and lunging for the gun. As to the omission, Owens explained that he was in a state of shock. Owens admitted to shooting Ruth, but he claimed that "I had no intent on shooting Ms. Ruth or harming Ms. Ruth. I loved her. It was an accident."

¶ 16. After Owens's testimony, the defense rested. The State then called Marcus on rebuttal and asked Marcus whether, prior to his arriving home after work, Ruth called him to return home at any point. Marcus responded "No."

¶ 17. Defense counsel then moved for a directed verdict pursuant to Weathersby v. State , 165 Miss. 207, 147 So. 481 (1933). Defense counsel argued "that if the defendant is the only eyewitness to the homicide[, his] version, if reasonable, must be accepted as true unless substantially contradicted by a creditable witness or witnesses for the State." Defense counsel explained that no other witness refuted Owens's testimony that he and Ruth were arguing. Defense counsel also stated that Owens admitted that he shot Ruth but that the gun accidentally went off as he and Ruth were both reaching for it. The State argued Marcus testified that he heard Ruth and Owens arguing, that Marcus saw Owens get off of the bed and shut the bedroom door, and that Marcus heard Ruth call out to him in distress. The trial court denied the defense's motion for a directed verdict, explaining that "the facts of this case would not allow the [c]ourt to apply Weathersby herein, and the [c]ourt finds that Weathersby rule is not applicable herein and will refuse it."

¶ 18. The jury returned a verdict finding Owens guilty of first-degree murder, and the trial court sentenced Owens to life in prison. Owens failed to file any posttrial motions. After the trial court granted Owens's motion for leave to file an out-of-time appeal, Owens appealed his conviction and sentence.

DISCUSSION

I. Sufficiency of the Evidence

¶ 19. Owens argues that the evidence presented at trial was insufficient to support his conviction of deliberate design first-degree murder. Owens acknowledges that he failed to file any posttrial motions, but he asserts that because his counsel moved for a directed verdict, the issue of the sufficiency of the evidence is preserved.

¶ 20. Owens first maintains that since there were no eye witnesses to the shooting in this case, and since Owens's testimony was reasonable and consistent with Marcus's testimony and the physical evidence, he was entitled to a directed verdict of acquittal on the first-degree murder charge on the principles set forth by the Mississippi Supreme Court in Weathersby , 165 Miss. at 209, 147 So. at 482. Owens further asserts in his brief that "the evidence was only sufficient for a second[-]degree murder conviction or a manslaughter conviction if the jury found that the homicide was not committed in justifiable self defense or that it did not result from an accident."

¶ 21. In Weathersby , the Mississippi Supreme Court established the following rule:

where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.

Id.

¶ 22. The supreme court has since clarified that " Weathersby is nothing more than a particularized version of our general standards according to which courts must decide whether in a criminal prosecution the accused is entitled to a judgment of acquittal as a matter of law." McQuarters v. State , 45 So.3d 643, 650 (¶ 19) (Miss. 2010) (quoting Johnson v. State , 987 So.2d 420, 425 (¶ 10) (Miss. 2008) ). We recognize that "[w]hen considering a motion for directed verdict, all evidence introduced by the State must be accepted as true, together with all reasonable inferences therefrom. If there is sufficient evidence to support a guilty verdict, the motion for directed verdict must be overruled." Id.

¶ 23. The supreme court has acknowledged that "it is a rare case that meets all of the requirements of the Weathersby rule." McQuarters , 45 So.3d at 650 (¶ 21) (quoting Sartain v. State , 311 So.2d 343, 345 (Miss. 1975) ). "Under Weathersby , differences in mere detail, not controlling substance, are permissible." Id. (internal quotation marks omitted). The supreme court has held that "the Weathersby rule is inapplicable where the defendant's conduct and statements following the killing are inconsistent with his version of the events as recounted at trial." McQuarters , 45 So.3d at 650 (¶ 21) (internal quotation mark omitted). Furthermore, " Weathersby does not automatically apply when the defendant is the only eyewitness. Rather, the Court has held that Weathersby has no application where the defendant's version is patently unreasonable, or contradicted by physical facts." Jones v. State , 154 So.3d 872, 878 (¶ 17) (Miss. 2014) (internal quotation mark omitted).

¶ 24. In the present case, Owens testified that the gun went off two times by accident; however, the physical evidence showed that Ruth was shot five times. Owens testified that after Marcus entered the bedroom prior to the shooting, Marcus closed the door as he left; however Marcus testified that he observed Owens get off of the bed and close the bedroom door. Owens also testified that the gun only went off twice; however, Dr. Davis testified that Ruth suffered five gunshots, and he was able to recover three of the bullets from Ruth's body. Officer Watts also testified that officers discovered a bullet under Ruth's body.

¶ 25. Owens also argues that the evidence presented at trial was insufficient to properly show the "deliberate design" required for first-degree murder pursuant to Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014). In support of his argument, Owens cites to Wilson v. State , 936 So.2d 357, 364 (¶ 17) (Miss. 2006), where the supreme court explained that:

deliberate design connotes an intent to kill .... [And] deliberate indicates a full awareness of what one is doing and generally implies careful and unhurried consideration of the consequences. Design means to calculate, plan or contemplate. However, deliberate design to kill a person may be formed quickly and perhaps only moments before the act.

Id. (citations omitted).

¶ 26. This Court reviews de novo challenges to the sufficiency of the evidence. Johnson v. State , 235 So.3d 1404, 1410 (¶ 12) (Miss. 2017). In so doing, "we determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation mark omitted) (quoting Brooks v. State , 203 So.3d 1134 (¶ 11) (Miss. 2016) ). "Where the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable jurors could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is to reverse and render." Jackson v. State , 247 So.3d 335, 337 (¶ 6) (Miss. Ct. App. 2018) (internal quotation marks omitted).

Evidence will be deemed sufficient if "reasonable fair-minded jurors in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient." Id. The State receives "the benefit of all reasonable inferences that may be drawn from the evidence." Johnson , 235 So.3d at 1410 (¶ 12) (internal quotation marks omitted).

¶ 27. After our review, we find that the evidence, as set forth above, is sufficient to support a finding that a rational, hypothetical juror could have found each of the elements of deliberate design murder beyond a reasonable doubt. Id. This issue lacks merit.

II. Ineffective Assistance of Counsel

¶ 28. Owens asserts that his trial counsel was ineffective, and he argues that his counsel's deficiencies interfered with his right to due process and resulted in Owens's failure to receive a fair trial. Owens claims the following constitute deficiencies by his trial counsel: (1) failing to request a culpable negligence manslaughter instruction; (2) failing to request an imperfect self-defense manslaughter instruction; (3) offering an incomplete self-defense instruction; (4) failing to file a posttrial motion for a JNOV; and (5) failing to file a posttrial motion for new trial.

¶ 29. The supreme court has held that "[o]rdinarily, claims of ineffective assistance of counsel are not addressed on direct appeal." Pace v. State , 242 So.3d 107, 118 (¶ 28) (Miss. 2018). The supreme court reasoned that "there is usually insufficient evidence within the record to evaluate the claim." Id. (quoting Wilcher v. State , 863 So.2d 776, 825 (¶ 171) (Miss. 2003) ). This Court can address the merits of an ineffective-assistance of counsel claim on direct appeal "only in instances where '(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.' " Collins v. State , 221 So.3d 366, 372 (¶ 19) (Miss. Ct. App. 2016) (quoting Wilcher , 863 So.2d at 825 (¶ 171) ). Additionally, "if the defendant is represented by counsel who did not represent him at trial, and the facts supporting the claim are fully apparent from the appellate record, the [appellate] [c]ourt may address the issue." Pace , 242 So.3d at 118 (¶ 28) (citing M.R.A.P. 22(b) ).

¶ 30. In the present case, although the State addressed Owens's claim of ineffective assistance of counsel, the State failed to stipulate that the record before us is adequate to allow this Court to dispose of Owens's claim. Additionally, we do not find the record affirmatively shows ineffectiveness of constitutional dimensions. "Where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Pace , 242 So.3d at 118 (¶ 28). Therefore, we dismiss Owens's ineffective-assistance-of-counsel claim without prejudice, so he may pursue the claim in a properly filed motion for post-conviction relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

III. Prosecutorial Misconduct

¶ 31. Owens next argues that he was denied a fair trial due to improper comments made by the prosecutor during closing arguments. Owens asserts that these comments were "an impermissible direct negative comment on Owens' constitutional right to stand trial." Owens claims that the comments violated his right to stand trial and sought to inflame the jury's emotions to make the jury feel sorry for Owens's family in order to make the jury punish Owens.

¶ 32. The record reflects that during closing argument, the prosecutor commented that Owens "forced his family to go through this trial." The transcript shows the following exchange occurred:

[Defense Counsel]: Objection, Your Honor.
THE COURT: Let me see where you're going. What's the comment?
[Prosecutor]: He offered, he chose to go to trial.
THE COURT: Well, sustained with that statement alone.
[Prosecutor]: He forced his family to go through this trial.
[Defense Counsel]: Objection, Your Honor.
THE COURT: It's sustained. It's sustained. Let's rephrase.

¶ 33. After the jury retired to deliberate, defense counsel asked for a mistrial based on the inflammatory argument, but the trial court denied the motion, finding that Owens was not prejudiced by the comments.

¶ 34. When reviewing a defendant's claim of prosecutorial misconduct during closing arguments, this Court must examine "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Jackson v. State , 174 So.3d 232, 236 (¶ 9) (Miss. 2015). We recognize that "[a]ttorneys are to be given wide latitude in making their closing arguments." Evans v. State , 226 So.3d 1, 31 (¶ 79) (Miss. 2017).

¶ 35. In Bolton v. State , 113 So.3d 573, 578 (¶ 13) (Miss. Ct. App. 2012), rev'd on other grounds in Bolton v. State , 113 So.3d 542 (Miss. 2013), this Court held that the prosecutor's comments were improper where, during opening statements, the prosecutor told the jury "I know that it's possible that you all are thinking that since there's all this evidence, why is he having a trial? But I ask that you not hold that against the State because he pled not guilty." On appeal, the defendant, Bolton, argued that the prosecutor's comments constituted an impermissible remark on Bolton's exercise of his right to stand trial. Id. This Court determined, however, that although the comments were improper, Bolton was not prejudiced by the comments and no reversible error occurred. Id. at (¶¶ 14-15). This Court found that "the jury was properly instructed it could not find Bolton guilty unless the State proved every element [of the charged offense] beyond a reasonable doubt," and determined that the improper comments by the prosecutor "did not negate this instruction." Id. at (¶ 15).

¶ 36. In reaching its decision, the Bolton court cited to its prior opinion in Moore v. State , 932 So.2d 833, 839 (¶ 19) (Miss. Ct. App. 2005), where the prosecutor told the jury in closing argument: "Y'all didn't want to be here. That man put you here." Bolton , 113 So.3d at 578 (¶ 14). The defendant, Moore, argued that "the comment implied he did not have a right to put on a defense." Id. The Moore court acknowledged that "there was no valid reason" for the prosecutor's statement, but found no reversible error because "the jury was well instructed as to Moore's theory of self-defense, and without more, we cannot find that the [prosecutor's] statements negated the effectiveness of the instructions given the jury." Id.

¶ 37. In the present case, the record reflects that the trial court instructed the jury that it could not find Owens guilty of deliberate design murder unless the State proved every element of the offense beyond a reasonable doubt. The trial court also granted Owens's heat-of-passion manslaughter instruction and his self-defense instruction that instructed the jury, in pertinent part, that "[i]f you find from the evidence that [Owens] acted in self-defense during the altercation with [Ruth] then you must find [Owens] not guilty." After our review, we find that Owens was not prejudiced by the prosecutor's comments, and no reversible error occurred. This issue lacks merit.

¶ 38. AFFIRMED.

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

      When asked specifically at what point Ruth called out his name, Marcus answered "I think it was between the time between the shooting or after the time I can't recall it, because when I came in, she was already on the ground[.]"

      Dr. Davis testified that Ruth had six gunshot wounds ; one bullet struck her, went through her, and entered her body a second time.

      "When the defendant proceeds with his case after the state rests and the court overrules the defendant's motion for a directed verdict, the defendant has waived the appeal of that directed verdict. In the absence of a renewal of the directed verdict, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict, the defendant has waived the sufficiency error on appeal." Pace v. State , 242 So.3d 107, 117 (¶ 25) (Miss. 2018) (quoting Holland v. State , 656 So.2d 1192, 1197 (Miss. 1995) (citation and internal quotation marks omitted) ). As stated, after the State rested, the trial court granted the defense counsel's request to make her motion for a directed verdict at the close of all of the evidence. Once the defense rested, the defense counsel proceeded to make her argument that Owens was entitled to receive a directed verdict.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. John Vernon HEAD, Respondent.
    No. SC07-2398.
    Supreme Court of Florida.
    Jan. 7, 2010.

      John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, Florida, and JoAnn Marie Stalcup, Bar Counsel, The Florida Bar, Orlando, FL, for Complainant.
    John Vernon Head, pro se, Orlando, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by John Vernon Head. We have jurisdiction. See art. V, § 15, Fla. Const. For the reasons discussed herein, we disapprove the referee’s recommended sanction of a sixty-day suspension and instead impose a one-year suspension.

FACTS

The Florida Bar filed a complaint against Head alleging that he engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; knowingly made a false statement of material fact or law to a third person in the course of representing a client; engaged in acts in connection with the practice of law that were prejudicial to the administration of justice; knowingly made a false statement of material fact or law to a tribunal; and represented a client when Head’s exercise of independent professional judgment might be materially limited by his own interests. After holding a hearing, the referee issued a report in which he made the following findings and recommendations.

Clayton Hackney and Linda Hackney, a married couple, filed a petition for bankruptcy under chapter 13 of the Bankruptcy Code in an attempt to retain ownership of real property that was their primary asset. They had purchased the land from George Turner, who held a mortgage on the property. The relationship between the Hackneys and Turner became acrimonious. Ultimately, Turner obtained a Final Judgment of Foreclosure against the Hackneys in February 2008. The principal amount of the judgment was $142,000, which carried interest. The Hackneys also owed Turner attorney fees of $15,375.58.

In March 2003, the Hackneys retained attorney Ezra Witsman to represent them in the bankruptcy. The Hackneys paid Witsman $1500 and also agreed to pay an hourly rate pursuant to a signed fee agreement.

Thereafter, Head purchased Witsman’s law practice. He filed “motions for substitution” on behalf of a number of Witsman’s former clients, including the Hackneys. Head took over the bankruptcy case in August 2003. He never received any additional fees for the bankruptcy from the Hackneys.

During the course of the bankruptcy, the Hackneys had other legal matters. They owned stock in a corporation, Crown Tree Tech, a tree trimming service. The business was their principal source of income. One of Crown Tree Tech’s former employees filed a federal lawsuit on a wage and hour claim against the corporation and the Hackneys. Head agreed to represent Crown Tree Tech and the Hackneys. The corporation provided Head $1000 as a cost retainer for the case. Further, the corporation paid Head a $1000 cost retainer to represent Clayton Hackney when he was charged with nonpayment of child support. Head also represented Clayton on an unrelated felony charge, in which Turner claimed Clayton tried to run him over while driving a Crown Tree Tech motor vehicle. Head did not wish to represent Clayton on the felony charge. However, when no one else would take the case because of Clayton’s inability to pay a retainer, Head agreed to represent Clayton. Ultimately, Head was able to finalize these matters by a payment of money on the wage claim and without Hackney being incarcerated for either the child support or criminal matter. Head, who was not paid any additional money by the Hackneys, determined that he was owed $14,013.69 in attorney fees for these “non-bankruptcy matters.”

The bankruptcy was continuing and the Hackneys were under a repayment plan. However, the repayment plan would not pay off the obligation to Turner. Therefore, the Hackneys had to obtain refinancing of the property to acquire funds to pay off the mortgage. In 2005, a lender was located. The closing on this transaction and its aftermath are when Head engaged in misconduct.

The Hackneys had spoken with Head’s office about using money from the proceeds of the loan to pay Head for the enormous amount of work he had performed. Specifically, a payment of $10,000 was discussed, although the Hackneys had not agreed to that amount. On the day of the closing, the Hackneys called Head’s office to question a $10,000 figure that was to be paid to Head from the proceeds of the closing. Eventually the Hackneys signed the closing documents, Head received a check for $10,000, and Turner received a check for $143,184.82. The closing took place on May 28, 2005, and the proceeds were distributed on June 7, 2005. Head’s payment was based on an invoice that had no information about hours worked, hourly rate, or what work was performed.

The original HUD Settlement Statement does not show the $10,000 payment. Instead, it states Turner received $153,184.82. An Amended HUD-1 statement was prepared that shows the $10,000 payment to Head, but apparently that statement was not provided to anyone.

A determination of what was owed to Turner in the refinancing was difficult because the Hackneys were often late with their payments in the chapter 13 proceeding, and Turner refused to cooperate in establishing what was owed to him. The burden fell on Head’s office to determine the amount owed to Turner and to provide the figure to the closing agent. The closing agent went forward with the closing without any confirmation from Turner as to the total amount owed. There was no evidence explaining why this was done or why there were two different HUD statements.

It is crucial to recognize that the primary reason the Hackneys were refinancing the property was to cease having Turner as a creditor. The $10,000 payment to Head from the loan proceeds prevented the achievement of this goal. The Hackneys still owed Turner money.

A few months later, on September 2, 2005, Head filed a Second Amended Motion to Modify Confirmed Chapter 13 Plan with the bankruptcy court on behalf of the Hackneys. The motion stated Turner’s claims had been paid in full. Attached to the motion was a “payoff worksheet” — a single page that showed attorney fees of $8999 in the payoff, but it is obvious that these were shown as attorney fees owed to Turner that were part of the total payoff.

Even though the proceeds from the real estate closing were distributed in June 2005, Head did not inform the bankruptcy court that he received the $10,000 until January 24, 2006, at a hearing before that court. At that point, an evaluation of the HUD Settlement Agreement and the Turner disbursement check brought the discrepancy to light. By stipulation of the parties at the January 24, 2006, hearing, it was determined that Turner was still owed $7200.

Because the second, amended motion to modify the confirmed chapter 13 plan showed that only $143,184.82 had been disbursed to Turner, the referee found that Head had not attempted to mislead the court. In addition, Head thought he was not obligated to disclose the receipt of this money because it was for matters unrelated to the bankruptcy.

According to the transcript from a bankruptcy hearing on March 7, 2006, even the bankruptcy judge was initially unsure whether Head should have reported the fees. Thereafter, by motion, the trustee sought disgorgement of the $10,000. A hearing was held on the motion and an order was entered that had findings of fact. The bankruptcy court’s found as follows: (1) Head’s statements in the pleadings were disingenuous; (2) his request for and receipt of the $10,000 disbursement was intentional and contrary to his statutory and ethical duties as counsel for the debtors; his receipt of the disbursement created a conflict of interest between him and the debtors that disqualified him from continuing to represent them; and (3) Head violated fundamental Bankruptcy Code and rule provisions governing the conduct of attorneys, and his actions created irreconcilable differences with his clients.

The bankruptcy court concluded as follows: (1) Head received $2000 from the debtors directly and $10,000 from the closing of the refinancing; (2) Head was required to disclose receipt of these funds and failed to make such disclosure in violation of 11 U.S.C.A. § 329 (2004) and Federal Bankruptcy Rule 2016; and (3) Head had not been candid with the bankruptcy court.

Head filed a motion for reconsideration. The bankruptcy court granted the motion to the extent that it reduced the amount ordered to be disgorged from $12,000 to $10,000.

On February 20, 2007, Head filed a “Suggestion of Bankruptcy” for the firm of John Vernon Head, P.A. in the Hackney bankruptcy file. However, Head did not file a petition for bankruptcy for the firm. Thus, the bankruptcy court entered an order to show cause against Head for filing the Suggestion of Bankruptcy when no petition for bankruptcy was ever filed. A hearing was held and an order entered. The bankruptcy court found that (1) “Head certified in filing the Suggestion his firm had filed a bankruptcy case and the automatic stay provisions of U.S.C. Section 362(a) had been invoked. Those certifications were not true”; and (2) “Head falsely represented his firm had filed for bankruptcy protection and the automatic stay was in effect. He willfully abused the judicial process by filing the Suggestion. He violated Rule 4-3.3 of the Florida Rules of Professional Conduct and Rule 9.011(b).” The bankruptcy court sanctioned Head by prohibiting him from practicing before the bankruptcy court for ninety days.

The referee found that Head violated Rule of Professional Conduct 4-1.7(b) of the Rules Regulating the Florida Bar (2003) (prior to the May 22, 2006, amendment). Head represented a client when his exercise of independent professional judgment was materially limited by his own interests. Head knew his clients owed him a large sum of money that they were unable to pay unless they used the receipts from the refinancing. By accepting the $10,000 from the refinancing, Head prevented his clients from being able to completely pay off their primary creditor, Turner. It was ultimately stipulated that the Hackneys owed Turner $7200 more than the $143,184.82 Turner had received from the closing. The $10,000 Head received would have covered the $7200, as well as the clients’ primary objective, which was paying off the money owed to Turner.

The referee also found that Head violated Rule of Professional Conduct 4-3.1 (after the May 22, 2006, amendment) (bringing or defending a proceeding, or asserting or controverting an issue therein, when there is no basis in law or fact for doing so that is not frivolous). Head knowingly filed a Suggestion of Bankruptcy with the bankruptcy court when no petition for bankruptcy had been filed. The bankruptcy court sanctioned him for this misconduct by prohibiting him from practicing before that court for ninety days. Upon these same facts, the referee found Head guilty of Rule of Professional Conduct violating 4 — 3.3(a)(1) (knowingly making a false statement of material fact or law to a tribunal).

Next, the referee found Head guilty of violating Rule of Professional Conduct 4-4.1(a)(knowingly making a false statement of material fact or law to a third person in the course of representing a client). Head filed the Suggestion of Bankruptcy when no petition had been filed. He filed it while the trustee was attempting to enforce the court’s disgorgement order, which was then final.

Head was also found guilty of violating Rule of Professional Conduct 4-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Head misrepresented to the bankruptcy court that a petition for bankruptcy had been or would be filed.

The referee found Head guilty of violating rule 4-8.4(d) (engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice). Head was not forthcoming as to his receipt of the $10,000 from the refinancing. As a result, unnecessary hearings were held to determine the sums due to Turner. Further, Head’s filing of the suggestion, when no petition for bankruptcy was actually filed, caused additional unnecessary proceedings before the court.

As to discipline, the referee recommended a sixty-day suspension. Because the Bar prevailed in this case, the referee recommended that the Bar be awarded costs of $9,222.80. With regard to aggravating factors, the referee found that Head has prior disciplinary offenses and substantial experience in the practice of law. The referee found the mitigating factors of timely good faith effort to make restitution (Head paid the $10,000 after judgment was entered) and character or reputation.

The Florida Bar sought review of the referee’s recommended sanction, and Head filed a cross-petition for review in which he challenges several aspects of the referee’s report.

ANALYSIS

First, Head asserts that the referee should have granted his motion to dismiss. The standard for review of a referee’s ruling on a motion is whether the referee abused his or her discretion. Fla. Bar v. Rotstein, 835 So.2d 241 (Fla.2002); Fla. Bar v. Kandekore, 766 So.2d 1004 (Fla.2000).

Head claims that the Bar’s complaint did not have a “structure” and did not link the alleged facts with the rules allegedly violated. On that basis, he argues that the referee should have granted his motion to dismiss. This argument is without merit. Rule Regulating the Florida Bar 3-7.6(h)(1)(C) provides that the “complaint shall set forth the particular act or acts of conduct for which the attorney is sought to be disciplined.” Our review of the complaint found that the alleged facts are clearly presented. Also, the penultimate paragraph in the complaint specifically lists the rules that Head allegedly violated, including language explaining each rule. Thus, Head was informed of the facts in dispute and the rules alleged to have been violated, and he was able to formulate a response. See Fla. Bar v. Tipler, 8 So.3d 1109, 1118 (Fla.2009)(“Due process is satisfied in Bar disciplinary proceedings where the attorney is served with notice of the Bar’s charges and is afforded an opportunity in the disciplinary hearing to be heard and defend himself’). We conclude that the referee did not abuse his discretion by permitting the case to proceed.

Second, Head argues that the referee’s findings of fact are not supported by competent, substantial evidence in the record. He claims that the referee should not have relied on facts found by the bankruptcy court when the referee examined whether Head engaged in misconduct.

The Court’s standard of review for evaluating a referee’s factual findings is as follows: This Court’s review of such matters is limited, and if a referee’s findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick, 756 So.2d 79, 86 (Fla.2000); see also Fla. Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998). To successfully challenge a referee’s factual findings, a party must show there is a lack of evidence in the record to support such findings or that the record clearly contradicts the referee’s conclusions; this burden cannot be met merely by pointing to contradictory evidence when there is substantial competent evidence in the record supporting the referee’s findings. Fla. Bar v. Glueck, 985 So.2d 1052, 1056 (Fla.2008).

Head claims that the referee should not have relied on the facts established in the bankruptcy proceeding. The disciplinary record contains a “Judicial Notice Notebook,” which contains fifty-four documents from the bankruptcy court proceedings. The notebook includes a “Motion for the Court to Take Judicial Notice” that the Bar submitted to the referee. The motion states that “[djuring the case management conference conducted on April 2, 2008, the respondent stipulated that the documents obtained from the bankruptcy court file are true and correct copies.” Further, section 90.202(6), Florida Statutes (2009), provides that a court may take judicial notice of the “[rjecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.” The Bar asked the referee to take judicial notice of the bankruptcy court documents and orders. Thus, Head was given notice of the request and had an opportunity to challenge the documents. In fact, he acknowledged that the records were true and correct copies. In light of these circumstances, we conclude that the referee did not abuse his discretion in accepting these documents into the record and then relying on the documents and decisions from the bankruptcy court. See Fla. Bar v. Tobkin, 944 So.2d 219 (Fla.2006) (referee’s consideration of the facts included in a district court of appeal’s opinion for the underlying medical malpractice case, in which the district court of appeal held that the respondent’s actions before the trial court were contumacious and willfully disobedient, was proper; the statute governing matters that have to be judicially noticed states that a court has to take judicial notice of decisional law, and the opinion in the medical malpractice case constituted decisional law).

Further, it is well established that in bar disciplinary proceedings, the referee is permitted to consider all relevant information pertaining to the alleged misconduct. See id. at 224 (“Because Bar disciplinary proceedings are quasi-judicial rather than civil or criminal, the referee is not bound by the technical rules of evidence. Consequently, a referee has wide latitude to admit or exclude evidence, and may consider any relevant evidence, including hearsay and the trial transcript or judgment in a civil proceeding.”). Contrary to Head’s arguments, the referee was permitted to consider the bankruptcy court documents and rely on them as support for the disciplinary findings of fact.

Head also challenges the referee’s findings of fact by basically asserting that the referee should have believed him instead of relying on the bankruptcy court documents. The Court has a long-established and clear standard regarding a referee’s credibility findings: The Court defers to the referee’s assessment and resolution of conflicting testimony because the referee is in the best position to judge the credibility of the witnesses. Fla. Bar v. Batista, 846 So.2d 479 (Fla.2003). The referee did not find Head believable on these points. Further, Head cannot prevail on review, when contesting the referee’s findings of fact, merely by continuing to restate his arguments. A respondent cannot prevail on review by contesting factual findings and simply pointing to contradictory evidence, when competent, substantial evidence (such as the bankruptcy documents and orders) supports the referee’s findings. Fla. Bar v. Varner, 992 So.2d 224, 228 (Fla.2008). In addition, the referee thoroughly supported his findings with competent, substantial evidence by over twenty citations to documents in the record, discussing the stipulations entered into by the parties, scrutinizing the testimony of witnesses, quoting and examining the findings from the bankruptcy court orders, and quoting the transcript from the bankruptcy court hearings. We conclude that Head has failed to meet his burden of proving that the referee’s findings of fact are not supported by the record.

Third, the Bar challenges the referee’s recommended sanction of a sixty-day suspension, arguing that a three-year suspension is appropriate. In response, Head argues that he should not be sanctioned severely because his misconduct was minor and he did not have the intent to misrepresent anything.

In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is the Court’s responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Head argues that his misconduct was “minor.” Contrary to his perspective, the Court does not view violations of rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and rule 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice) as minor. The Court has clearly stated that “basic, fundamental dishonesty ... is a serious flaw, which cannot be tolerated” because dishonesty and a lack of candor “cannot be tolerated by a profession that relies on the truthfulness of its members.” Fla. Bar v. Rotstein, 835 So.2d 241, 246 (Fla.2002). Dishonest conduct demonstrates the utmost disrespect for the court and is destructive to the legal system as a whole.

Head also claims that he lacked intent to engage in the misconduct. Contrary to this argument, the referee agreed with the bankruptcy court’s finding that Head’s “request for and receipt of the $10,000 disbursement was intentional and contrary to his statutory and ethical duties as counsel for the debtors.” Further, it is well established in disciplinary case law that “in order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing.” Fla. Bar v. Fredericks, 731 So.2d 1249, 1252 (Fla.1999) (the motive behind the respondent’s action was not the determinative factor; rather, the issue was whether the respondent deliberately or knowingly engaged in the activity in question); see also Fla. Bar v. Brown, 905 So.2d 76, 81 (Fla.2005); Fla. Bar v. Barley, 831 So.2d 163, 169 (Fla.2002). The referee and bankruptcy court found that Head deliberately and knowingly requested $10,000 from the debtors’ refinancing and deliberately and knowingly filed the misleading Suggestion of Bankruptcy. We conclude that the element of intent has been proven and found.

The Bar argues that a three-year suspension is appropriate. The cases cited by the Bar present more egregious misconduct than that committed by Head. See Fla. Bar v. Dove, 985 So.2d 1001 (Fla.2008) (suspending the respondent for three years for knowingly making material misrepresentations to a court in a termination of parental rights and adoption matter, and for willfully withholding material information from the court, which impacted a child, and caused adverse effects on the legal proceedings and the interested parties); Fla. Bar v. Hagendorf, 921 So.2d 611 (Fla.2006) (suspending the respondent for two years for using the legal system to seek revenge on his business landlord, which included making misrepresentations to a court and seeking to quiet title to a building that he did not own).

Head’s violations of rules 4-8.4(e) and (d) establish that a serious sanction is merited. See, e.g., Fla. Bar v. Colclough, 561 So.2d 1147 (Fla.1990) (suspending the respondent, who did not have any prior disciplinary history, for six months for misrepresenting to the judge and opposing counsel that a hearing on costs had already been held). Head knowingly filed the Suggestion of Bankruptcy with the bankruptcy court, even though no petition for bankruptcy had been filed. He also was not forthcoming about his receipt of the $10,000 from the refinance loan.

Further, Head knew his clients were unable to pay his fee unless they used money from the refinancing loan. In accepting the $10,000 from the refinancing, he knew his clients would be unable to pay off their primary creditor, Turner. Paying Turner in full had been the main objective for the refinancing loan. Thus, Head’s action created a conflict of interest that proved detrimental to his clients. See R. Regulating Fla. Bar 4 — 1.7(b) (prohibiting a lawyer from representing a client when the lawyer’s exercise of independent professional judgment may be materially limited by the lawyer’s own interests).

In light of Head’s misconduct, Florida Bar v. Varner, 992 So.2d 224 (Fla.2008), provides guidance. The respondent in Varner permitted a voluntary dismissal of his client’s case by lying and stating that the client, through legal counsel, sought the voluntary dismissal of all pending claims in his workers compensation case. The respondent deliberately intended to communicate that the client was aware of and consented to the dismissal of the case; however, the respondent knew that the client did not know of it and had not authorized it. Varner, like Head, violated rules 4-8.4(e) and (d). The Court suspended Varner for one year.

Head, like Varner, made a misrepresentation to a court and to others (Varner lied to opposing counsel when he stated that his client dismissed the case; Head’s actions were done to mislead the bankruptcy trustee). In Varner, the Court stated that the “profession of the practice of law requires lawyers to be honest, competent, and diligent in their dealings with clients, other lawyers, and courts.” Id. at 231. Head has not met this requirement.

Further, Varner deliberately misled his client because, for almost a year, Varner did not inform the client that he had allowed the dismissal of the case. Head engaged in a similar act of self-interest, by obtaining a portion of the refinancing loan money and placing his own clients at a disadvantage by rendering them unable to pay off Turner. Also like Varner, Head was previously disciplined for similar misconduct. Head was admonished in 2005 for bringing a lawsuit that was “lacking in merit” and “frivolous,” which is similar to his filing the Suggestion of Bankruptcy in this case. The Court views cumulative misconduct more seriously than an isolated instance of misconduct. Fla. Bar v. Carlon, 820 So.2d 891, 899 (Fla.2002). Thus, based on Varner, we find that the referee’s recommendation of a sixty-day suspension is unsupported and we impose a one-year suspension.

Fourth, Head claims that the referee’s award of costs to the Bar was improper. He broadly asserts that “the costs sought by the Bar are essentially unnecessary and were compiled by it without reason and Respondent should not be held responsible for them.”

Rule Regulating the Florida Bar 3-7.6(q)(2) provides that the referee “shall have discretion to award costs and, absent an abuse of discretion, the referee’s award shall not be reversed.” Further, rule 3-7.6(q)(3) provides that the referee may assess the Bar’s costs against a respondent when the Bar is “successful, in whole or in part.” The referee here found Head guilty of several rule violations, so the Bar was successful in part. Thus, the referee’s award of costs is supported.

Further, the costs listed in the Bar’s Affidavit of Costs are permitted under rule 3-7.6(q). Head cannot overcome the referee’s award of costs by broadly claiming, without providing any specifics or support, that the costs are “unnecessary” or “without reason.” He has not provided any evidence that the costs “were unnecessary, excessive, or improperly authenticated.” R. Regulating Fla. Bar 3-7.6(q)(3); see Fla. Bar v. Kassier, 730 So.2d 1273, 1276 (Fla.1998). Thus, Head has failed to show that the referee abused his discretion in recommending that costs be awarded to the Bar.

As the Court has stated, “[w]here the choice is between imposing costs on a bar member who has misbehaved and imposing them on the rest of the members who have not misbehaved, it is only fair to tax the costs against the misbehaving member.” Kassier, 730 So.2d at 1276. We conclude that the referee’s award of costs to the Bar was proper.

CONCLUSION

Accordingly, we approve the referee’s findings of fact, recommendations as to guilt, and award of costs. We disapprove the referee’s recommendation of a sixty-day suspension. Instead, John Vernon Head is hereby suspended from the practice of law for one year and thereafter until he proves rehabilitation.

This suspension will be effective thirty days from the filing of this opinion so that John Vernon Head can close out his practice and protect the interests of existing clients. If Head notifies this Court in writing that he is no longer practicing and does not need the thirty days to protect existing clients, this Court will enter an order making the suspension effective immediately. Head shall accept no new business from the date this opinion is filed until he is reinstated to the practice of law in Florida.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 82399-2300, for recovery of costs from John Vernon Head in the amount of $9,222.80, for which sum let execution issue.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

      . Head received an admonishment for minor misconduct in August 2005. The basis of the admonishment was a finding that Head "had no reasonable basis to pursue the litigation, and that the respondent had intentionally, while without malice, filed and presented claims that lacked any plausible, legal or factual support." The lawsuit was "lacking in merit” and "frivolous."

      . Head has been a practicing attorney for thirty-five years, including practice in other jurisdictions.