author: GREENLEE, J., FOR THE COURT:

text:
    Tina LEE, Appellant v. KELLER WILLIAMS REALTY, Appellee
    NO. 2016-CP-00874-COA
    Court of Appeals of Mississippi.
    November 28, 2017
    ATTORNEY FOR APPELLANT: TINA LEE (PRO SE)
    ATTORNEYS FOR APPELLEE: LAWRENCE LEE LITTLE, TARA BETH SCRUGGS
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Tina Lee appeals the DeSoto County Circuit Court's grant of Keller Williams Realty's motion for summary judgment dismissing Lee's complaint concerning her leased home's conditions. Because the lease agreement's provisions control and Keller Williams did not assume the duty to repair, the trial judge did not err in granting summary judgment. We therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 19, 2013, Lee entered into an agreement with Keller Williams, through its agent Melissa Parish, to lease a residence in Horn Lake, Mississippi. The lease was for a period of approximately one year, with rent to be paid monthly in the sum of $875. Under the terms of the agreement, Lee agreed that the premises would be occupied by only two occupants-herself and her seven-year-old son. Further, the agreement contained a "condition of the premises" clause and an "indemnity" clause, which relieved Keller Williams of its duty to make repairs to the property after the inception of the lease.

¶ 3. Lee moved into the property on May 17, 2013, finding that it was in good condition. Three days later, after a heavy rain, the back room began to flood. This allegedly occurred many times throughout the lease period, and, according to Lee, she informed Parish of the problem. The occasional flooding and resulting mold, according to Lee, resulted in damages to herself and her son.

¶ 4. On March 20, 2014, Lee filed a complaint against Keller Williams and Anderson Rentals LLC alleging negligence and breach of contract for failure to repair the property or relocate her to another property. On July 8, 2015, without notice to the parties or permission from the court, Lee filed a "Supplemental and Amended Complaint," adding an additional negligence claim for permanent injuries to her son in the form of ringworm and a mold allergy. Subsequently, Keller Williams and Anderson Rentals moved for summary judgment. After holding a hearing on the matter, the trial court judge granted Keller Williams's motion for summary judgment and dismissed the case against Anderson Rentals. Lee appealed the grant of Keller Williams's summary-judgment motion to this Court.

¶ 5. On appeal, Lee asserts the trial court erred because (1) she did not waive Keller Williams's duty to repair the property, and (2) Keller Williams assumed the duty to repair. Additionally, Keller Williams asserts that Lee's amended complaint was not procedurally proper before the circuit court and cannot be a basis for appeal.

STANDARD OF REVIEW

¶ 6. Grants of summary judgment are reviewed de novo, with the evidence viewed in the light most favorable to the nonmovant. Karpinsky v. Am. Nat'l Ins. , 109 So.3d 84, 88 (¶ 9) (Miss. 2013). Upon review, this Court examines "all the evidentiary matters before [it], including admissions in pleadings, answers to interrogatories, depositions, and affidavits." Albert v. Scott's Truck Plaza Inc., 978 So.2d 1264, 1266 (¶ 5) (Miss. 2008) (citation omitted). "If no genuine issue of material fact exists and the moving party is entitled to [a] judgment as a matter of law, summary judgment should be entered in that party's favor." Stringer v. Trapp , 30 So.3d 339, 341 (¶ 9) (Miss. 2010).

DISCUSSION

I. Amendment of Pleadings

¶ 7. After Keller Williams answered Lee's complaint, Lee filed a supplemental and amended complaint without consent of the opposing side or permission from the circuit court. Keller Williams asserts that this amended complaint and its claims made on behalf of Lee's minor child were not properly before the circuit court and cannot be a basis for appeal. Keller Williams argues that Lee filed her supplemental and amended complaint in violation of Mississippi Rule of Civil Procedure 15 because Keller Williams had answered Lee's original complaint before she filed her supplemental and amended complaint. After reviewing the record, we find the supplemental and amended complaint was not properly allowed to be filed and cannot be before this Court on appeal.

¶ 8. Rule 15 allows a party to amend a pleading as a matter of course until a responsive pleading has been served or after service of such responsive pleading with permission of the circuit court. M.R.C.P. 15(a). While the decision on a motion to amend is in the sound discretion of the trial court and will not be overturned unless there was a clear abuse of discretion, the record here is void of any motion for leave to amend by Lee. Therefore, under our law, the supplemental and amended complaint had not been properly filed and should have been struck. D.P. Holmes Trucking LLC v. Butler , 94 So.3d 248, 255 (¶ 20) (Miss. 2012) ("If a party fails to seek leave of the court or permission of the opposing party prior to amending the pleadings, such amendment is improper and will be struck.").

¶ 9. Lee asserts that Keller Williams fails to point to any part of the record where a motion to strike her amended complaint was made and heard by the trial court, and, therefore, Lee asserts Keller Williams waived this argument. However, on August 10, 2015, Keller Williams filed a motion to dismiss Lee's supplemental and amended complaint, citing Rule 15. While the record does not indicate that the judge entered an order dismissing the amended complaint, the transcript from the summary-judgment hearing makes it clear that the judge did not consider Lee's supplemental and amended complaint. Notwithstanding the judge's failure to rule on the motion to dismiss Lee's amended complaint, the supplemental and amended complaint was not properly before the court, making Lee's argument moot.

¶ 10. The record is clear that Lee filed her first complaint on March 20, 2014, and on April 22, 2014, Keller Williams filed its answer and affirmative defenses. Once Keller Williams filed its answer, a responsive pleading, Lee lost her ability to file an amended pleading as a matter of course. It was not until July 8, 2015, that Lee filed a supplemental and amended complaint. There is no record that Lee obtained the court's or opposing side's permission before filing this amended complaint. Thus, the supplemental and amended complaint was not procedurally proper. With the resolution of this issue, we will now turn to Lee's individual claim.

II. Keller Williams's Duty

¶ 11. As the plaintiff in a breach-of-contract claim, Lee bore the burden to prove the existence of a valid contract, a breach of that contract, and damages. Suddith v. Univ. of S. Miss. , 977 So.2d 1158, 1175 (¶ 35) (Miss. Ct. App. 2007). The circuit court held that Lee failed to provide sufficient evidence to establish the existence of an essential element on which she bears the burden of proof at trial-namely the breach of any duty owed under the contract. See Buckel v. Chaney , 47 So.3d 148, 153 (¶ 10) (Miss. 2010) ("Moreover, 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." (Internal quotations omitted)).

¶ 12. Lee urges that we should find Keller Williams breached its duty to make repairs to the property or relocate her to another property. Her argument is based on dual assertions. First, she asserts the condition-of-the-premises clause and indemnity clause did not constitute a waiver because they violated Mississippi statutory law and are against public policy. Next, she asserts Keller Williams had constructive knowledge of the dangerous condition and assumed the duty to repair the property through the actions of its agent, Parish. We find no merit to either assertion.

A. Waiver of Duty

¶ 13. First, Lee asserts that the condition-of-the-premises and indemnity clauses within Keller Williams's agreement did not constitute a waiver because they violated Mississippi statutory law and are void as a matter of public policy. This issue was not previously raised in any pleadings or at the summary-judgment hearing. It therefore cannot be properly raised before the Court today.

Brown v. Thompson, 927 So.2d 733, 738 (¶ 16) (Miss. 2006) ("It is well[-]settled Mississippi law that there is a procedural bar to considering issues not first raised at trial.").

¶ 14. Notwithstanding the improper procedural posture of this issue, we find no merit in Lee's contention. Lee cites two statutory provisions, neither of which apply. First, she attempts to bolster her argument by citing to Mississippi Code Annotated section 89-7-21 (Rev. 2011). Her reliance on this statute is misguided for two reasons. First, this statute by its terms only applies to "lessees of lands for a term of years, life or lives." Id. Lee's lease is not a lease for a term of years, but is rather a periodic month-to-month lease. See Miss. Code Ann. § 89-8-19(1) (Rev. 2004) ("Unless the rental agreement fixes a definite term a tenancy shall be week to week in case of a tenant who pays weekly rent, and in all other cases month to month."). Second, section 89-7-21 is wholly about the lessee's right of recovery against assignees of the lessor. This statutory provision extends a lessee's right against the lessor to any assignees of the lessor. Keller Williams, the lessor, has not assigned or gifted its right to another party, and therefore this statute does not apply. Lee apparently asserts that this statute gives rise to an additional duty of Keller Williams. Even if this statute were applicable to this case, it does not establish any additional duties or obligations of the lessor.

¶ 15. Next, she relies on Mississippi Code Annotated section 75-24-161(c) (Rev. 2016). Her reliance on this statute is also misguided, as this statute concerns rental-purchase agreements. By its definition section, a rental-purchase agreement is "an agreement for the use of personal property by a natural person primarily for personal, family or household purposes, for an initial period of four (4) months or less that is automatically renewable with each payment after the initial period, ... and that permits the consumer to become the owner of the property. " Miss. Code Ann. § 75-24-153(f) (Rev. 2016) (emphasis added). The agreement in the current case is simply a residential lease. There is no provision in the rental agreement that purports to offer any ownership interest in the property besides that of a tenant.

¶ 16. Despite the inapplicability of these statutes to the current case, Mississippi has adopted an implied warranty of habitability. See Sweatt v. Murphy , 733 So.2d 207, 209-10 (¶¶ 7-8) (Miss. 1999). This warranty imposes a duty on all landlords to "provide reasonably safe premises at the inception of a lease , and to exercise reasonable care to repair dangerous defective conditions upon notice of their existence by the tenant, unless expressly waived by the tenant ." Martin v. Rankin Circle Apartments, 941 So.2d 854, 862 (¶ 32) (Miss. Ct. App. 2006) (emphasis added) (quoting Sweatt, 733 So.2d at 210 (¶ 7) ). Waiver constitutes an act or inaction voluntarily and intentionally made evincing the relinquishment of a known right. See Rolison v. Fryar, 204 So.3d 725, 733 (¶ 16) (Miss. 2016). Further, the Mississippi Residential Landlord and Tenant Act provides that a "landlord and tenant may agree in writing that the tenant perform some or all of the landlord's duties under this section, but only if the transaction is entered into in good faith." Miss. Code Ann. § 89-8-23(3) (Rev. 2011). Moreover, "[c]lauses that limit liability are given strict scrutiny ... and are not to be enforced unless the limitation is fairly and honestly negotiated and understood by both parties."

Royer Homes of Miss. v. Chandeleur Homes Inc. , 857 So.2d 748, 754 (¶ 22) (Miss. 2003). Thus the question becomes whether Lee and Keller Williams entered into the agreement in good faith, with an understanding of the agreement's provisions.

¶ 17. Keller Williams, relying on Lee's deposition and the terms of the agreement, asserts that the agreement was entered into in good faith. Lee asserts that she did not knowingly waive any of her rights, nor did she know that she was waiving the rights of her minor child.

¶ 18. Reviewing the record, it is clear that Lee understood the agreement's provisions and that she voluntarily entered into the agreement with such provisions, constituting a waiver. Repeatedly, in answering Keller Williams's requests for admission and in her deposition, Lee admitted that she fully understood the agreement and the contents therein. Further, the first page of the agreement contained a provision stating that "[t]his is a legally binding document. If any party to this lease does not fully understand it, or has any question, the party should seek advice from competent legal professional before signing." Because the record is clear and undisputed that Lee entered into the agreement voluntarily with a full understanding of its contents, the agreement and its provisions waiving Keller Williams's duty to repair are valid and enforceable.

B. Assumption of Duty

¶ 19. Lee argues that, regardless of the waiver of duty, Keller Williams assumed the duty to make repairs through the actions of its agent. Lee claims, as she did at the summary-judgment hearing, that she informed Parish of the conditions several times via email with pictures attached. Lee claimed that Parish's response to those emails-that she would see what could be done-is sufficient to show that Keller Williams assumed the duty to repair. The trial judge found that this argument was insufficient to "take this case out of the terms of the contract." We agree.

¶ 20. In Mississippi, it is well established that a duty can be assumed in two ways, by contract or detrimental reliance on a gratuitous promise. Doe v. Hunter Oak Apartments L.P. , 105 So.3d 422, 427 (¶ 20) (Miss. Ct. App. 2013). In the present case there has been no evidence suggesting that the duty was assumed through the contract. So if a duty were assumed, as asserted by Lee, it could have only been through a gratuitous promise. This Court, in Doe , summarized assumption of duty through gratuitous promise as follows:

The mere promise to act does not create a duty to act. The promise to act must induce detrimental reliance for liability to arise. For a party to be held liable for negligent performance of a gratuitous or voluntary act, the plaintiff must show detrimental reliance on the performance.

Id. (internal citations and quotation marks omitted). In the present case, Lee has failed to show any evidence of detrimental reliance on a gratuitous promise. The only evidence Lee offers to support her claim is that Parish told her that she would see what she could do. This statement alone is not enough for assumption of a duty; there was no promise for any detrimental reliance to be based upon.

¶ 21. Lee further asserts, for the first time in her brief, that Parish's knowledge of the conditions is similar to constructive knowledge in slip-and-fall cases, citing Drennan v. Kroger Co., 672 So.2d 1168 (Miss. 1996). While this is the correct law in slip-and-fall scenarios, the case before us today is not a slip-and-fall case. Slip-and-fall cases are based on a business owner or operator's duty to keep the premises in a reasonably safe condition. Id. at 1170.

Unlike a slip-and-fall case, Keller Williams had no duty to keep the premises reasonably safe after the inception of the lease because of the waiver provisions within the agreement, and as Lee had dominion and control over the leased premises.

CONCLUSION

¶ 22. Having reviewed the record and briefs of the parties de novo, we affirm the circuit court's judgment.

¶ 23. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., CARLTON, FAIR AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.

      Lee's brief incorrectly refers to this statute as 41-24-161(c).


source: Caselaw Access Project

author: FAIR, J., FOR THE COURT:

license: Public Domain

text:
    Edward JOHNSON, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01802-COA
    Court of Appeals of Mississippi.
    November 28, 2017 Rehearing Denied April 10, 2018 Certiorari Denied June 7, 2018
    ATTORNEY FOR APPELLANT: EDWARD JOHNSON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. In May 2016, Edward Johnson pled guilty to second degree murder, robbery, and several other felonies pursuant to a plea agreement. The circuit court sentenced Johnson as recommended. Johnson subsequently filed what he styled a petition for habeas corpus, which the circuit court properly took as a motion for post-conviction relief. In Johnson's petition, he contended that his indictment was defective because it did not conclude with the words "against the peace and dignity of the state." The circuit court properly dismissed the petition without an evidentiary hearing, holding that Johnson's indictment was defective, but that it was a defect of form, and that Johnson waived his objection by pleading guilty. Johnson's other contentions are likewise without merit or have been raised for the first time on appeal, and so we affirm the summary dismissal of his petition.

STANDARD OF REVIEW

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

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

DISCUSSION

1. Indictment-Constitutional Requirements

¶ 4. We combine Johnson's first two issues as he has briefed them together on appeal and they essentially make the same challenge to his conviction.

¶ 5. It is undisputed that Johnson's indictment violated Article 6, Section 169 of the Mississippi Constitution, which provides in relevant part that "all indictments shall conclude 'against the peace and dignity of the state.' " Our courts have enforced this constitutional requirement, even though it has long been called "idle and meaningless." See McNeal v. State , 658 So.2d 1345, 1349 (Miss. 1995) (quoting Love v. State , 8 So. 465, 465 (Miss. 1891) ). But while the concluding statement is required, it is a matter of the form of the indictment. Brandau v. State , 662 So.2d 1051, 1055 (Miss. 1995). Challenges to the indictment for defects of form must be raised as a demurrer to the indictment and are waived by a valid guilty plea. Id. at 1054-55. Johnson did not object to his indictment prior to pleading guilty, and so this issue has been waived. See id.

2. Ineffective Assistance of Counsel

¶ 6. Johnson argues that, in the alternative, he received ineffective assistance of counsel. He contends that his counsel failed to object to the indictment or advise him of its formal defect. To succeed on an ineffective-assistance-of-counsel claim, Johnson must meet both prongs of the test laid out in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State , 454 So.2d 468, 476-77 (Miss. 1984). "First, the defendant must show that counsel's performance was deficient." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Second, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052.

¶ 7. Here, Johnson has arguably shown that his counsel was deficient in failing to recognize the defect in the indictment. However, Johnson himself acknowledges that the Mississippi Supreme Court has expressly held that this exact formal defect is curable by amendment. See Brandau , 662 So.2d at 1055. It is therefore apparent that Johnson cannot meet the second Strickland prong, as a demurrer to the indictment would have resulted in the indictment being amended, and Johnson would have ended up at square one. See Buford v. State , 756 So.2d 815, 817 (¶ 8) (Miss. Ct. App. 2000). Johnson cannot show that the alleged error changed the result of the proceeding, and thus his claim of ineffective assistance of counsel is without merit.

3. Voluntariness of Guilty Plea / Factual Basis

¶ 8. Johnson's final issue, though styled a challenge to the voluntariness of his guilty plea, also includes arguments that the circuit court lacked a factual basis to accept his guilty plea. However, neither of these issues was raised in his petition filed in the circuit court-the factual basis was not addressed at all, and voluntariness was only mentioned in a single sentence that does nothing more than recite a definition of an involuntary guilty plea; Johnson's petition never actually asserts, much less argues, that his plea was involuntary. And, since these arguments are made for the first time on appeal, they are procedurally barred. Gardner v. State , 531 So.2d 805, 808-09 (Miss. 1988).

¶ 9. AFFIRMED.

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

      Under the new Mississippi Rules of Criminal Procedure, which were not in effect at the relevant time, "[d]efects respecting the indictment shall be raised by written motion." MRCrP 14.4(b).


author: BARNES, J., FOR THE COURT: CARLTON, J., DISSENTING:

text:
    Jason ALSTON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee
    NO. 2016-CC-01347-COA
    Court of Appeals of Mississippi.
    November 28, 2017 Rehearing Denied March 20, 2018 Certiorari Denied June 7, 2018
    ATTORNEY FOR APPELLANT: JASON ALSTON (PRO SE)
    ATTORNEYS FOR APPELLEE: ALBERT B. WHITE ANNA CRAIN CLEMMER
    EN BANC.
   BARNES, J., FOR THE COURT:

¶ 1. Jason Alston, appearing pro se, appeals the decision of the Circuit Court of Attala County, which affirmed the decision of the Board of Review (Board) of the Mississippi Department of Employment Security (MDES) denying him unemployment benefits. The Board adopted the MDES administrative law judge's (ALJ) determination that Alston voluntarily left his employment without good cause. Finding there was substantial evidence to support the Board's decision, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Alston had been employed with the Mississippi Department of Transportation (MDOT) as a Maintenance Tech II from September 1, 2012, to October 26, 2015, first in Pearl, Mississippi, and then in Kosciusko, Mississippi, where he resigned from his job. Alston claims he was forced to resign due to workplace harassment by his coworkers and supervisors. He cites several incidents to support his claim. Alston also received several work-related reprimands and was ultimately suspended from work for four days. When Alston returned to work, he informed his supervisor that he was leaving for another job. Alston then applied for unemployment benefits, claiming he was constructively discharged due to a hostile work environment.

¶ 3. MDES denied Alston's claim. Alston appealed. After a hearing, an MDES ALJ determined that he had not been subject to a hostile work environment, but had quit voluntarily, and failed to show good cause in doing so. Alston appealed to the Board, which adopted the ALJ's findings. Alston then appealed to the circuit court, which affirmed the Board's decision.

¶ 4. At the hearing before the ALJ, the attorney for MDOT, Joe Goff, had two witnesses testify-Marty Price, maintenance-operations manager and Alston's direct supervisor, and Greg Franklin, MDOT's district human-resources manager. Alston had no witnesses other than himself.

¶ 5. Alston claimed he gave his employer notice that he was quitting due to a hostile work environment, which began on January 8, 2015. On that date, he inadvertently put the wrong fuel in an MDOT diesel truck. He claimed a coworker forced him to siphon gas out of the tank by mouth or receive a written reprimand. He siphoned the gas by mouth, subsequently became sick, and went to the ER. Alston did not report his illness for workers'-compensation purposes until approximately one week later. Price, however, testified that Alston was given the option by their mechanic of dropping the tank and draining it, or siphoning the gas.

¶ 6. Additionally, in April 2015, Alston claimed Morgan Henry, a local maintenance supervisor, started a rumor among other employees that Alston had HIV. This incident arose when Alston asked Henry for time off to go to a physician for symptoms he received from his girlfriend. Upon his return, coworkers said he had HIV. Alston denied discussing with any coworkers that he may have a sexually transmitted disease. Alston then filed a grievance against Henry.

¶ 7. Another incident occurred in July 2015, when Keith Mangrum, a coworker, killed a water moccasin on the job and threw it in the back of Alston's work truck. Alston asked Mangrum to remove it because he was terrified of snakes, and he could not finish his work assignment because his equipment was in the back of the truck with the dead snake. Alston, though, admitted the incident was eventually addressed. Human resources was notified, and Price and Goff offered to transfer Mangrum to another district. Alston agreed, and Mangrum was transferred.

¶ 8. Alston testified to other more-minor incidents with Mangrum before he was transferred for the snake incident. In March 2015, Alston claimed Mangrum intentionally jerked Alston's steering wheel, causing Alston to spill his coffee on his lap. Alston requested a transfer to another district but stated Henry asked him to stay. The next day, on March 5, 2015, Alston filed grievances against Henry, Price, and Mangrum. Price testified he spoke to Mangrum about "horseplay." Alston also alleged that Mangrum encouraged another coworker to ram an MDOT tractor into Alston's MDOT truck. The coworker refused, but Alston called Price and reported the incident. Price and Henry immediately came to the scene and investigated. Price testified about the incident, explaining Mangrum's comment was not intentional, but a miscommunication.

¶ 9. Further, in May 2015, Alston stated another employee tried to start a fight with him; so he filed a grievance against him. Both Price and Goff investigated the incident by interviewing both parties, as well as a witness, but the witness and alleged instigator denied Alston's accusations. Alston admitted that steps were taken to resolve the issues between the two men.

¶ 10. Alston explained he had "no issue" with his job at MDOT until he transferred districts, from Pearl to Kosciusko, in August 2014. Alston testified that he filed his complaints and grievances against his supervisors and coworkers according to the employee handbook, but claimed none of the incidents were "handled." Therefore, in June 2015, he filed an Equal Employment Opportunity Commission (EEOC) charge of discrimination based on race and disability, claiming harassment by white coworkers. In July 2015, he filed another EEOC charge, claiming employer retaliation due to his first claim. He stated that since his first filing he had "been consistently written up for violations that were not [his] fault."

¶ 11. Between the time of the two EEOC filings, however, Alston was admitted to St. Dominic Behavior Health hospital for four days, from June 30, 2015, until July 2, 2015. He testified that workplace retaliations had caused him to have a nervous breakdown and "forced [him] to quit" (although he quit approximately three months later). Alston's diagnosis was depression and psychosis. He claimed counselors at St. Dominic told him to return to work and "deal with his problems head on; people were going to pick and mess with him daily." He was off work for three weeks, but did not provide MDOT with any records regarding his hospitalization.

¶ 12. A hand-delivered letter to Alston dated September 25, 2015, from MDOT's executive director, entitled "Disciplinary Action Notice," was entered into evidence. It summarized four Group II offenses against Alston that required a written reprimand. In May 2013, Alston received a reprimand for violating safety rules. In June 2015, Alston received two written reprimands for insubordination. In early June 2015, he received a written reprimand for "speeding and operating a state vehicle in an unsafe manner placing other employees in a life threatening situation." On June 19, 2015, Alston received a written reprimand for improper placement of highway "mowers ahead" warning signs on three different days. Finally, the letter detailed the circumstances of September 9, 2015, when Alston again improperly placed warning signs on the wrong side of a highway, endangering mowers and resulting in another insubordination offense. Additionally, but not documented in the notice, in September 2015, Alston was issued a reprimand for failing to follow a directive by Price instructing employees not to use cell phones at work except as necessary. Alston acknowledged at the hearing that, according to the employee handbook, two Group II offenses per year entitled MDOT to discipline him up to discharge; however, he was only suspended from work without pay from September 29 through October 5, 2015. Alston claimed to have sent the Mississippi Employee Appeals Board a letter appealing his suspension, but it was never received, and he never contacted MDOT about an appeal.

¶ 13. Alston told Price he had started looking for another job around the time of his suspension, but it is unclear whether Alston returned to work after his suspension. On October 19, 2015, Alston stated he called Price and asked for time off work in order to take a drug test, and if he passed the test he was going to start work at Prairie Farms Dairy immediately. Price told Alston he needed to complete MDOT's exit forms. Alston denied that, as Price claims, he signed the forms that day and noted the "reason(s) for voluntary resignation" was "to accept another position (ready & waiting)." The next day, for unrelated reasons, human resources revised the form format, and Price asked Alston to complete another one.

¶ 14. On October 26, 2015, Alston returned to Price's office accompanied by his father. He completed the new form and his exit interview. On the new form, Alston checked the reason for his voluntary resignation was "dissatisfied (salary, hours, work)." In a box for additional details, he wrote: "due to constructive discharge tactics used regularly by my supervisors, I am forced to resign my position. See EEOC cases pending." He also requested that he take the old form so he could destroy it himself. Alston admitted there were no formal disciplinary actions pending against him and no new reprimands. He also told several coworkers he was leaving because he had a new opportunity to make more money and have better hours at the dairy.

¶ 15. At the ALJ hearing, Price denied having any discussions with Alston about leaving due to a hostile work environment. Price claimed the only hostile incident involved the snake, and action was taken against the instigator-Mangrum-by transferring him. Price acknowledged that Alston had come into his office crying on the day of the snake incident. However, Price testified that each incident was addressed to Alston's satisfaction. Further, Price stated Alston was not treated differently from any other employees. Price sat in on an interview with several of Alston's coworkers concerning reasons why he left. Present was an attorney for MDOT human resources and four employees, who all stated Alston had informed them he was leaving MDOT for the dairy to make more money.

¶ 16. Franklin, the district human-resources manager, testified last. He stated Alston resigned to accept a job at a local dairy. He testified that during the gas incident, Alston was given the choice of siphoning or draining the gas. Franklin confirmed that Price handled the grievance procedures properly. Franklin also corroborated Price's testimony about the exit forms, and that Alston changed his reason for leaving to constructive discharge on the second form. Finally, he was not aware of any complaints or issues Alston had regarding a hostile work environment.

¶ 17. Alston's date of separation with MDOT was October 26, 2015. Alston applied for unemployment benefits on November 12, 2015.

STANDARD OF REVIEW

¶ 18. This appeal is governed by Mississippi Code Annotated section 71-5-531 (Supp. 2016), which provides that if the findings of the Board are supported by substantial evidence and absent of fraud, they are conclusive, and the appellate court's review is "confined to questions of law." Id. An administrative agency's conclusions will remain undisturbed unless the agency's order is: (1) unsupported by substantial evidence, (2) arbitrary and capricious, (3) beyond the scope or power granted to the agency, or (4) in violation of the employee's statutory or constitutional rights. Miss. Dep't of Emp't Sec. v. Good Samaritan Pers. Servs. , 996 So.2d 809, 812 (¶ 6) (Miss. Ct. App. 2008) (citing Miss. Comm'n on Envtl. Quality v. Chickasaw Cty. Bd. of Supervisors , 621 So.2d 1211, 1215 (Miss. 1993) ). "A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise." Allen v. Miss. Emp't Sec. Comm'n , 639 So.2d 904, 906 (Miss. 1994). The reviewing court "must not reweigh the facts of the case or insert its judgment for that of the agency." Id. If the Board's findings are supported by substantial evidence and the relevant law is properly applied, the reviewing court must affirm. Barnett v. Miss. Emp't Sec. Comm'n , 583 So.2d 193, 195 (Miss. 1991).

ANALYSIS

¶ 19. Alston argues that the ALJ and Board's ruling that he voluntarily quit his employment without good cause was not supported by substantial evidence, and was arbitrary and capricious. He also claims that his due-process rights were violated when his ALJ hearing was postponed one month.

Substantial Evidence

¶ 20. Under Mississippi law, a worker is disqualified from receiving unemployment benefits if he "left work voluntarily without good cause ...." Miss. Code Ann. § 71-5-513(A)(1)(a) (Supp. 2016). The burden of proving good cause rests with the employee. Miss. Code Ann. § 71-5-513(A)(1)(c). The Mississippi Supreme Court "has held on numerous occasions that the question of whether an employee voluntarily quits or was discharged is a question of fact for the ALJ and Board to determine." Huckabee v. Miss. Emp't Sec. Comm'n , 735 So.2d 390, 394 (¶ 14) (Miss. 1999). However, their decision must be based on substantial evidence. Id. "Substantial evidence" is evidence that is relevant and capable of supporting a reasonable conclusion, or "more than a mere scintilla of evidence." Johnson v. Miss. Dep't of Envtl. Sec , 150 So.3d 149, 152 (¶ 8) (Miss. Ct. App. 2014).

¶ 21. The ALJ made the following findings of fact to support her determination that Alston voluntarily quit his employment without good cause. MDOT representatives stated that Alston told them he was voluntarily quitting to take a position at Prairie Farms Dairy. Other employees stated that Alston told them he had accepted another job because it provided a new opportunity with better hours and more money. On the original exit documents Alston completed on October 19, 2015, he allegedly noted the reason for leaving was to take another job ready and waiting. When MDOT asked Alston to reexecute a newer version of the exit form, he made sure the first form, which stated he left to take another job, was destroyed. On the new form he indicated his departure was a "constructive discharge."

¶ 22. As far as the incidents with Alston's coworkers, MDOT countered that its human-resources department had reacted to each of Alston's complaints in a timely manner, investigating each allegation. Employees involved with any of the incidents in violation of MDOT's policies were properly disciplined. And, at the time, Alston stated he was satisfied with the discipline implemented.

¶ 23. Regarding Alston's own disciplinary infractions, MDOT pointed out that Alston had received numerous warnings and a suspension during his tenure at MDOT. Alston could have been dismissed after two Group II violations, but instead, MDOT gave him more chances to improve his behavior. Alston, however, believed these violations were unfounded and based on discrimination and retaliation for his EEOC complaint.

¶ 24. The ALJ concluded that Alston left MDOT due to his four-day suspension and obtaining a better job at the dairy-not a hostile work environment. The ALJ cited the legal principle that when an individual leaves work after a disagreement with the employer, under no threat of discharge, he is deemed to have voluntarily left the employment without good cause. Miss. Emp't. Sec. Comm'n v. Fortenberry , 193 So.2d 142, 144 (Miss. 1966). The ALJ accordingly found:

[Alston] left work after he had been suspended for an incident that he deemed not to be his responsibility, in essence disagreeing with [MDOT's] decision to hold him accountable. He had previously received proper disciplinary actions in accordance with [MDOT's] policies but he was under no threat of immediate discharge.

¶ 25. After thoroughly reviewing the record, we find there was substantial evidence to support the Board's findings that Alston voluntarily left his employment for another job without good cause. His coworker's harassing incidents, while inappropriate, were all dealt with by supervisors to Alston's satisfaction. The snake and coffee incidents instigator, Mangrum, was transferred to another district. Alston was given the opportunity to drop the tank to remove the gas, but chose to siphon it by mouth. Supervisors investigating the truck-ramming incident and attempted fight discovered accounts that conflicted with Alston's version. Supervisors suspended Alston for numerous reprimands that could have resulted in his firing. There was testimony from a coworker to contradict Alston's contention that he was intentionally told to place signs in incorrect areas. Alston was diagnosed with depression and psychosis, but did not provide evidence, except his own testimony, that his mental health was directly related to his work, and "forced him to quit." Further, he stated he was told by mental-health professionals to return to work and face his problems. Evidence showed Alston quit MDOT to work at the dairy for a better job with more pay, which ultimately did not work out. Multiple coworkers who were interviewed stated Alston told them he quit to take the job at the dairy. Price testified that Alston took time off to take a drug test for a new job. Both Price and coworkers claimed Alston made no mention of a hostile work environment at MDOT.

¶ 26. Whether Alston left work with good cause is an issue of fact left to the fact-finder. Alston claims his intolerable working conditions created good cause for his resignation. See Hoerner Boxes Inc. v. MDES , 693 So.2d 1343, 1346 (Miss. 1997) (finding as an issue of first impression sexual harassment can constitute good cause for unemployment-benefits purposes). Here, the Board, as the trier of fact, could well have determined that MDOT was aware of the harassing incidents and addressed them to Alston's satisfaction.

¶ 27. The Board's conclusion that Alston was not constructively discharged is not arbitrary and capricious. Constructive discharge occurs when "the employer [has] made conditions so intolerable that the employee reasonably [feels] compelled to resign." Bulloch v. Pascagoula , 574 So.2d 637, 640 (Miss. 1990) (citation omitted). From the record, MDOT supervisors were attentive in addressing Alston's grievances and trouble-making coworkers. This issue is without merit.

Due Process

¶ 28. Alston alleges that the trial court erred in finding his due-process rights were not violated when his initial hearing was postponed. He requests a new hearing or a decision in his favor. Alston reasons that the continuance did not follow proper administrative regulations because no good cause was cited for granting the continuance. Originally, the ALJ hearing was set for February 10, 2016, but it was cancelled because the attorney for MDOT could not appear on that date. The ALJ hearing was subsequently re-noticed and held on March 11, 2016. Both the cancellation and the re-notice were mailed to Alston on February 1, 2016, and February 16, 2016, respectively, and both MDOT and Alston participated in the rescheduled hearing.

¶ 29. Alston's argument is without merit. Administrative proceedings are to be "conducted in a fair and impartial manner, free from any just suspicion or prejudice, unfairness, fraud, or oppression." Miss. State Bd. of Health v. Johnson , 197 Miss. 417, 19 So.2d 445, 447 (Miss. 1944). Further, it is well established that formal rules of practice, procedure, and evidence are more relaxed in proceedings before administrative agencies than in courts of law; however, "[d]ue process always stands as a constitutionally grounded procedural safety net in administrative hearings." McGowan v. Miss. State Oil & Gas Bd. , 604 So.2d 312, 318 (Miss. 1992). The minimum due-process requirement an administrative board must afford parties is notice and an opportunity to be heard. Booth v. Miss. Emp't Sec. Comm'n , 588 So.2d 422, 428 (Miss. 1991) (citing State Oil & Gas Bd. v. McGowan , 542 So.2d 244, 248 (Miss. 1989) ).

¶ 30. Alston provides no authority for his claim that his due process was violated because his ALJ hearing was postponed approximately one month. The circuit court found, and the record confirms, that Alston was given notice of both hearing dates. Moreover, he was able to attend, testify, and cross-examine witnesses. Accordingly, Alston received procedural due process of notice and a hearing. Furthermore, the hearing was fair and impartial.

Improper Evidence

Finally, Alston alleges in his petition for mandamus that MDOT engaged in misconduct by presenting improper evidence during the hearing before the ALJ, because it was not timely disclosed. He cites two documents in the record before the MDES in support of his contentions. The first page is a cover letter from MDOT attorney Goff to the ALJ dated March 7, 2016. Goff attaches sixteen pages of exhibit documents to be entered as evidence during Alston's telephonic ALJ hearing on March 11, 2016. The documents include a completed and uncompleted exit-interview form, as well as MDOT memoranda, emails, and reprimands dealing with Alston and his claims. We find no merit to Alston's argument that these documents were improperly admitted or untimely.

CONCLUSION

¶ 31. The decision of the circuit court is affirmed.

¶ 32. AFFIRMED.

LEE, C.J., FAIR, WILSON AND GREENLEE, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING AND GRIFFIS, P.JJ., AND WESTBROOKS, J. TINDELL, J. NOT PARTICIPATING.

CARLTON, J., DISSENTING:

¶ 33. I respectfully dissent. The issue in this case pertains to whether Alston presented sufficient proof of good cause to leave work. Upon review of the record and applicable precedent, I submit that Alston met his burden of showing that his departure was based upon good cause, and, therefore, he should not be denied unemployment benefits. See Miss. Code Ann. § 71-5-513(A)(1)(c) (Supp. 2016) (employee bears burden of proving employee has left work for good cause). Alston claims that he was constructively discharged, and that he possessed good cause to leave work due to intolerable work conditions.

¶ 34. The record reflects that Alston was forced to siphon gas with his mouth from the gas tank of a truck, a coworker put a dead snake in his truck, and while driving a truck with Alston as a passenger, that same coworker caused Alston to spill hot coffee on himself. Also, another coworker threatened to fight Alston, and his supervisor told other employees Alston's personal medical information and spread rumors to other employees that Alston had HIV.

¶ 35. The MDOT, Alston's employer, does not dispute that the harassing conduct occurred; however, MDOT argues that corrective action was taken against the employees found to be in violation of MDOT's policies regarding their interactions with Alston. MDOT claimed that each incident was resolved to Alston's stated satisfaction at that time. MDOT further alleged that Alston had received multiple warnings and a suspension from work based on his own behavior. MDOT stated that Alston's violations of MDOT policies left him subject to dismissal, but MDOT chose to give Alston an opportunity to correct his behavior rather than dismiss him. MDOT also claimed that Alston informed other employees that he had accepted another job since it provided a new opportunity with better hours and more money.

¶ 36. However, I submit that Alston was not required to work under such intolerable conditions or return to work where such an invasion of his private medical information had already occurred, clouding his ability to continue under such stigmatized circumstances.

¶ 37. Based upon the foregoing, I respectfully dissent.

IRVING AND GRIFFIS, P.JJ., AND WESTBROOKS, J., JOIN THIS OPINION.

      Alston never advanced his grievances against supervisors and coworkers beyond the initial filing.

      The letter cited the Mississippi state-employee handbook, stating "insubordination" included, but was "not limited to, resisting management directives through actions and/or verbal exchange, and/or failure or refusal to follow supervisor's instruction, perform assigned work, or otherwise comply with applicable established policy."

      Alston accused a coworker and his supervisors of training him improperly on sign placement so he would be written up.

      Alston attributes the form discrepancy to the "criminal conspiracy" by MDOT against him.

      Alston subsequently worked at Prairie Farms Dairy from October 27 until November 5, 2015, but stated he was "discharged for no reason." He submitted an EEOC claim against the dairy for retaliation as well.

      Alston filed a self-styled "Petition for a Mandamus" with the Mississippi Supreme Court on October 6, 2016, before his case was assigned to this Court, raising several issues addressed by this opinion. He also filed a motion to amend the petition, which was granted by the Mississippi Supreme Court. The issues Alston raised in his petition have been considered and resolved by either this opinion or by order of this Court.

      Here, the Board, which is the finder of fact, adopted the findings of the ALJ. See Miss. Code Ann. § 71-5-531.

      Alston also argues a denial of due process because of numerous minor formatting errors with the ALJ's and Board's decisions. He claims the Board's decision lacks headings, and therefore must be a "false document." He also claims in his mandamus petition that because the Board's decision lacks a signature or a stamp, it is void. We find no formatting errors in the decisions, and no indication the Board's decision is fraudulent because it lacks a signature and stamp. These claims are without merit.
      Additionally, he argues that on June 6, 2016, he was denied access to inspect personally the Board's decision, record, and files on his claim at MDES. However, the record on appeal indicates Alston was properly provided all decisions and notices to which he was entitled.
      Finally, Alston argues that the circuit-court judge should have granted his motion to recuse, because the same judge accepted Alston's March 1999 guilty plea for burglary of a dwelling and has a "vendetta" against him. The judge denied his motion because he had no independent recollection of these proceedings. Moreover, the judge stated he would not consider the conviction while ruling on the merits of Alston's appeal.

      Alston cites MDES Regulations 20-1-101:200.02 of the Mississippi Administrative Code regarding scheduling of hearings before the Appeals Department.

      See Sherman v. Miss. Emp't Sec. Comm'n , 989 So.2d 398, 401-02 (¶¶ 9-10) (Miss. 2008) (finding good cause for leaving job due to refusal to price gouge after Hurricane Katrina); Hoerner Boxes Inc. v. Miss. Emp't Sec. Comm'n , 693 So.2d 1343, 1347 (Miss. 1997) (addressing good cause and finding that sexual harassment constituted good cause); Miss. Dep't of Emp't Sec. v. Trent L. Howell PLLC , 46 So.3d 827, 831-32 (¶¶ 21-26) (Miss. Ct. App. 2010) (finding sexual harassment constituted good cause).


author: WILSON, J., FOR THE COURT: GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    John William MAYTON, J.A. McNeil, and Michael Maranto, Jr., Appellants/Cross-Appellees v. Jane OLIVER, Appellee/Cross-Appellant
    NO. 2015-CA-01875-COA
    Court of Appeals of Mississippi.
    November 30, 2017
    ATTORNEY FOR APPELLANTS: PHILIP MANSOUR JR.
    ATTORNEY FOR APPELLEE: LAWRENCE DOUGLAS WADE JR.
    EN BANC.
   WILSON, J., FOR THE COURT:

¶ 1. This is a case about four neighbors on a cul-de-sac in Greenville. Three of them, the plaintiffs, allege that the other, Jane Oliver, violated a restrictive covenant and interfered with express or prescriptive drainage easements when she blocked a PVC pipe that emptied water from their lots onto her property. The chancellor found that the plaintiffs failed to establish the existence of an express or prescriptive drainage easement and denied their claims for injunctive relief and damages. The chancellor also denied Oliver's request for attorney's fees and her counterclaim for damages. The plaintiffs appealed, and Oliver cross-appealed. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Orchard Plantation Subdivision in Greenville was established in 1978. The approximately ten-acre subdivision was divided into seven lots along Orchard Place, a private road that winds south off of Tampa Drive before dead-ending in a cul-de-sac. The Washington County Board of Supervisors approved the subdivision's plat and "Drainage Plan," and both were recorded in the county land records. The subdivision's "Declaration of Protective Covenants and Restrictions" was also recorded in the county land records.

¶ 3. All but one of the subdivision's current property owners are parties to this case. Defendant Oliver bought her home on Lot 5 in 1987. Lot 5 is at the south end of Orchard Place in the cul-de-sac. Plaintiff J.A. McNeil bought Lot 6 in 1981 and built a home on it in 1986. McNeil's home is north of Oliver's on the east side of Orchard Place. McNeil also owns two other lots in the subdivision that are not directly at issue in this case. In 2010, plaintiff Michael Maranto purchased the home on Lot 4, which is adjacent to and essentially due west of Oliver's home. In 2013, plaintiff John William Mayton purchased the home on Lot 3, which is north of Maranto's lot and northwest of Oliver's lot on the west side of Orchard Place. Mayton bought his home out of foreclosure after it had been vacant for about two years.

¶ 4. In the spring of 2014, Greenville experienced several consecutive days of heavy rain. Oliver testified that her yard flooded all the way up to the top step of her porch, almost inside her house. Oliver concluded that the flooding was caused or exacerbated by water flowing into a culvert that runs under her driveway in front of her house and-in particular-by a six-inch PVC pipe that runs under the street from Mayton's house (Lot 3) and then empties into Oliver's culvert. Oliver testified that she had never noticed the PVC pipe prior to the heavy rain and flooding in the spring of 2014. But on that occasion, water was flowing from the pipe "like a fountain ... into [her] yard in a huge rush." To address the problem as she perceived it, Oliver blocked her culvert and plugged the end of the PVC pipe using plywood and bags of unmixed concrete. According to Oliver, this alleviated her problems.

¶ 5. However, the plaintiffs claim that Oliver's actions made their drainage problems much worse. The PVC pipe ran beneath Orchard Place in a southeasterly direction from Mayton's yard to Oliver's culvert. The pipe had been draining water from Mayton's yard and runoff from the northeast part of Maranto's yard into Oliver's culvert. Mayton and Maranto testified that by blocking the PVC pipe, Oliver caused water to back up into their yards, which led to several weeks of standing water and significant damage to their lawns.

¶ 6. McNeil testified that water from his yard previously drained into Oliver's culvert. He also testified that Oliver had directed the natural flow of water from his yard toward her culvert when she built a "berm" along their property line in the 1990s. McNeil claimed that by blocking the culvert, Oliver caused water to back up into his yard, which caused several weeks of standing water and significant damage to his lawn. Oliver generally disputed her neighbors' claims and denied that their drainage issues were any worse than before.

¶ 7. On June 10, 2014, Mayton, McNeil, and Maranto filed a complaint against Oliver in the Washington County Chancery Court. They alleged that Oliver was in violation of the subdivision's restrictive covenants, that they were entitled to use "utility easements" shown on the subdivision's plat to drain their respective lots, and that the subdivision's "current drainage pattern [was] consistent with the [subdivision's] original Drainage Plan," which they attached as an exhibit to the complaint. The plaintiffs sought preliminary and permanent injunctive relief and damages based on Oliver's alleged violation of the covenants and interference with the easements.

¶ 8. Oliver answered, denied the plaintiffs' allegations, and filed a counterclaim. She alleged that the plaintiffs' use of the PVC pipe to divert water from their lots onto her property violated the subdivision's restrictive covenants and Drainage Plan. She also alleged that Mayton had added "fill dirt" to his property, which had altered the neighborhood's drainage pattern and Drainage Plan. Oliver further alleged that the plaintiffs' actions and the resulting drainage onto her property had caused damage to her yard and driveway, and she sought injunctive relief (removal of the PVC pipe) and damages.

¶ 9. On July 15 and 17, 2014, the chancellor held a hearing on the plaintiffs' request for a preliminary injunction. At the hearing, an engineer hired by the plaintiffs, Marcus Hooker Jr., had to concede that the plaintiffs' claims-and the neighborhood's current drainage pattern-were not consistent with the subdivision's Drainage Plan. Among other things, the drainage from Mayton's and Maranto's lots through the PVC pipe and into Oliver's culvert was directly contrary to the flow of water depicted on the Drainage Plan. In fact, the Drainage Plan showed that water should drain west off of Mayton's lot, away from Oliver's lot. The Drainage Plan called for a "swale" on Mayton's lot to direct drainage to the west; however, Hooker testified that the swale did not exist at the time he inspected the property. Hooker conceded that drainage from the Mayton lot was "actually going in exactly the opposite way from the Drainage Plan," while drainage on the Oliver lot was substantially consistent with the Drainage Plan.

¶ 10. The Drainage Plan did call for a twenty-four-inch "cross drain" under the street, somewhat to the north of the actual path of the PVC pipe. However, the Drainage Plan called for the cross drain to carry water west from McNeil's lot across the street to Mayton's lot, where it would then continue to drain west off the back of Mayton's lot. In other words, the PVC pipe was draining water in roughly the opposite direction of the cross drain depicted on the Drainage Plan. There is no evidence that such a cross drain was ever installed.

¶ 11. McNeil testified that a prior owner of the Mayton lot (Lot 3), Tom Cameron, installed the PVC pipe in December 2007. According to McNeil, the PVC pipe replaced an old metal pipe that had been in the same location since at least 1981. McNeil testified that he and Cameron agreed that the metal pipe should be replaced because it had become "compressed" or "clogged" or "crushed," which had "retarded the flow of water from one side to the other." McNeil discussed the new PVC pipe with all of the subdivision's residents except Oliver and her husband, which he considered a sufficient consultation with the subdivision's "board." He testified that this gave him "a majority" of votes to put in the PVC pipe "since [he has] three lots and three votes." McNeil testified that he did not tell the Olivers about the new pipe because "[t]hey don't agree to anything." As noted above, Oliver testified that she was unaware of the PVC pipe emptying into her culvert prior to the heavy rains and flooding in the spring of 2014. She also testified that she was not aware of the prior metal pipe.

¶ 12. Mayton testified that his house had been vacant for two years before he bought it out of foreclosure in 2013. There was a problem with standing water in his yard because the PVC pipe was not draining properly. Mayton testified that he had the pipe cleaned out, which resolved the problem. McNeil also testified that Leroy Davenport, who owned Lot 3 before Tom Cameron, "was not real good about cleaning out the [PVC pipe]," which resulted in the pipe not draining properly for periods of time and standing water on Lot 3.

¶ 13. The Drainage Plan provided that the runoff from Maranto's lot (Lot 4) should drain primarily to the west along the "swale" on Mayton's property. The Plan provided that the remainder of the runoff from his property would drain south down the Maranto/Oliver property line into a "catch basin" and eventually into what was referred to as "Ditch Number Seven" or "Number Seven Drainage Canal," which is located to the south of Oliver's property. Drainage along the Maranto/Oliver property line into the catch basin has not been impeded and does not appear to be at issue in this litigation. As noted above, the Drainage Plan does not call for any drainage from the Maranto lot via the disputed PVC pipe.

¶ 14. Oliver testified that in the 1990s her house flooded with approximately eighteen inches of water throughout. She did not believe that any of the other houses on her street experienced similar flooding. To avoid future flooding, she resolved to improve the drainage on her property, and she had a system of "catch basins" constructed. She added to the system as time went by, and she testified that there were approximately ten such catch basins on her lot at the time of trial. These basins drain into a "slough" behind her property and eventually into the drainage ditch or canal to the south. Oliver testified that she spent about $10,000 on the first basins she installed in the 1990s and had incurred additional costs as she added to her drainage system. Oliver objected to her neighbors draining their lots onto her property and overloading her drainage system. Oliver denied that she had exacerbated her neighbors' drainage issues by blocking her culvert or the PVC pipe. Oliver also claimed that Mayton had exacerbated drainage problems in the cul-de-sac by putting in a pool and elevating parts of his lot with fill dirt.

¶ 15. The recorded plat for the subdivision was admitted into evidence in the chancery court. The plat shows two twenty-five foot "utility easements" along the path of the planned private road in the subdivision. As constructed, the road appears to occupy about half of the combined width of the utility easements. The plat does not provide any further description of the purpose or permissible uses of the "utility easements."

¶ 16. The warranty deed conveying Lot 5 to Oliver and her husband was also admitted into evidence. Although Oliver testified that she was unaware of the subdivision's restrictive covenants, the deed states that the "conveyance [was] subject to all rights of way and easements of record, as well as the protective covenants of record in Book 1396 at page 623 of [the Washington County] land records." As relevant to this litigation, the referenced "Declaration of Protective Covenants and Restrictions" states as follows: "Easements reserved for drainage and utility purposes, as shown upon the plat filed herewith or any other instrument of record, shall remain unobstructed."

¶ 17. There was also some evidence introduced of two five-foot drainage easements along what is at present the Oliver/Maranto (Lot 5/Lot 4) property line. A 1980 survey showing the drainage easements was attached to and recorded with a 1980 deed. The two five-foot drainage easements were also shown on a survey attached to a 2006 deed in which Oliver and her husband conveyed Lot 5 from a "family trust" to themselves. The five-foot easements are along the Oliver/Maranto property line, some distance to the south and west of the endpoint of the disputed PVC pipe.

¶ 18. On July 25, 2014, the chancellor entered an order granting the plaintiffs' request for a preliminary injunction. In her order, the chancellor stated that an "application for a preliminary injunction is a matter committed to the [chancellor's] sound discretion," and she found that "on a balancing of the [four] factors" relevant to such an application, the plaintiffs' request should be granted. Therefore, the chancellor ordered Oliver to remove all obstructions to the culvert and PVC pipe pending a final hearing on a permanent injunction.

¶ 19. In August 2015, the court held a final hearing on the plaintiffs' claims for permanent injunctive relief and damages and Oliver's counterclaim for damages. The chancellor received additional testimony from the parties and then permitted the parties to submit proposed findings of fact and conclusions of law. The record does not include the plaintiffs' proposed findings and conclusions, but it does include Oliver's.

¶ 20. On November 19, 2015, the chancellor entered an opinion and final judgment denying the plaintiffs' claims for permanent injunctive relief and damages and denying Oliver's counterclaim for damages and request for attorney's fees. The chancellor found that the plaintiffs failed to prove an express or prescriptive drainage easement. The chancellor also found that the plaintiffs' claims were not supported by the subdivision's recorded Drainage Plan and that the plaintiffs were not entitled to relief based on Oliver's alleged violation of the subdivision's restrictive covenants. On Oliver's counterclaim, the chancellor found that Oliver failed to prove that the alleged damages to her driveway in the amount of $79,185.50 were the plaintiffs' fault rather than just the "natural result of the shifting ground that we all routinely experience in the Delta." The plaintiffs appealed, and Oliver cross-appealed.

ANALYSIS

¶ 21. On appeal, the plaintiffs argue that the chancellor erred by denying their claims for injunctive relief and damages and, specifically, that the chancellor erred when she found that they failed to prove express drainage easements, prescriptive drainage easements, or an actionable violation of the subdivision's restrictive covenants. On cross-appeal, Oliver argues that the chancellor erred by denying her request for her attorney's fees. She contends that she was entitled to an award of attorney's fees because she was wrongfully enjoined by the chancery court's order granting a preliminary injunction. We address these issues in turn, we find no error, and we affirm the judgment of the chancery court in its entirety.

I. Express Drainage Easements

¶ 22. Mississippi law recognizes express, implied, and prescriptive easements. Favre v. Jourdan River Estates , 148 So.3d 361, 368 (¶ 20) (Miss. 2014). The plaintiffs in this case first contend that they are entitled to injunctive relief and damages based on express drainage easements. The existence or nonexistence, nature, and extent of an express easement are "determined by the language of the deed [or other instrument], taken in connection with the circumstances existing at the time of making it." Id. "Descriptions of easements may be fairly general," but they must be accurate and clear. Id.

¶ 23. "[T]o determine what the parties intended, this Court must first examine the language contained in the 'four corners' of the instrument." Warren v. Derivaux , 996 So.2d 729, 735 (¶ 12) (Miss. 2008). We "construe the language in a manner which makes sense to an intelligent layman familiar only with the basics of English language." Id. (quotation marks omitted). If the parties' intent is not clear from the "four corners" of the instrument, we "will employ any applicable canons of contract construction." Id. at (¶ 14). "One such canon ... is that great weight should be given to practical construction which the parties have placed upon the instrument." Id. (quotation marks omitted).

¶ 24. "In construing the language of an easement, the rules for the interpretation of deeds and other written instruments apply." Hobgood v. Koch Pipeline Se. Inc. , 769 So.2d 838, 843 (¶ 24) (Miss. Ct. App. 2000) ; accord Warren , 996 So.2d at 735 (¶ 12). "Whether [an instrument] is ambiguous is a question of law which we review de novo." Crisler v. Crisler , 963 So.2d 1248, 1251 (¶ 5) (Miss. Ct. App. 2007) (citing Tupelo Redevelopment Agency v. Abernathy , 913 So.2d 278, 283 (¶ 12) (Miss. 2005) ). However, "[i]f an ambiguity is found to exist, its interpretation is a matter for the trier of fact which we review under a substantial evidence/manifest error standard." Id. ; cf. Epperson v. SOUTHBank , 93 So.3d 10, 17 (¶ 20) (Miss. 2012) (holding that if a contract is "ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate"). Therefore, if there is an ambiguity as to existence of the express drainage easement claimed by the plaintiffs, the chancellor's ruling becomes a question of fact.

¶ 25. In Warren , supra , the "pivotal question" was whether a "Reciprocal Easement" between Warren and Smith "establishe[d] a perpetual easement for parking and signage in addition to [an] easement for ingress and egress." Id. at 732 (¶ 1). The instrument at issue was "entitled 'Reciprocal Easement' " and granted an "Easement" for "ingress and egress." Id. at 733 (¶ 3). It also provided: "parties with business interest [with Smith] may cross-park in four spaces owned by W.W. Warren." Id. at 733 (¶ 3). Finally, the document granted Smith a "legal right" to have "a business sign as mutually agreed upon" at a specific location on Warren's property.

¶ 26. A dispute later arose as to whether the "Reciprocal Easement" "created a perpetual easement as to parking and signage" or "mere" revocable "privileges as to the parking and signage." Id. at 733-35 (¶¶ 5, 11). The Supreme Court held that the reciprocal easement was not accurate and clear on these issues. See id. at 736 (¶ 16). However, the Court applied "the general rule ... that where the grant is in general terms, the exercise of the right, with the acquiescence of both parties, in a particular course or manner, fixes the right and limits it to the particular course or manner in which it has been enjoyed." Id. And the evidence in that case indicated that the parties and their successors had treated parking and signage as rights, not mere privileges. See id. at (¶¶ 16, 18). The Court also relied on the rule that "[a]ny ambiguity ... should be construed against the drafting party" (Warren). Id. at (¶ 17).

¶ 27. Relying on Warren , the plaintiffs here argue that the twenty-five foot "utility easements" shown in the original subdivision plat should be construed as drainage easements because of their historical "use for drainage and acquiescence by [Oliver]." The chancellor, however, concluded that the "utility easements" could not be so broadened as to permit the plaintiffs to all drain their respective lots through and across Oliver's property. The chancellor reasoned that the express terms of the subdivision plat did not authorize use of the utility easements for drainage. The chancellor also reasoned that the contemporaneous subdivision Drainage Plan clearly did not contemplate use of the utility easements for drainage in the manner or direction urged by the plaintiffs.

¶ 28. We find no error in the chancellor's ruling on this issue. In Warren , the parties'

"Reciprocal Easement" expressly authorized the use of four parking spots and the placement of a sign in a specific location on the servient estate. In that case, the plaintiff relied on the parties' subsequent "practical construction" of the easement and Warren's "acquiescence" only (1) to clarify and resolve any ambiguity as to whether the express provisions for parking and signage were true easements or "mere" revocable "privileges" and (2) to determine which four parking spaces he could use. See Warren , 996 So.2d at 733-36 (¶¶ 3-5, 11-18). The Warren Court also relied on the rule that ambiguities should be resolved against the drafter, which in that case favored recognition of the easements. See id. at 736 (¶ 17).

¶ 29. The issues in this case are materially different. None of the parties to this litigation drafted the subdivision plat. More important, the plat depicts easements that are described only as "utility easements." The plat provides no further elaboration of the easements' purposes or permissible uses. The plaintiffs argue that an alleged history of use and acquiescence has transformed these utility easements into significant drainage easements. Indeed, the plaintiffs seek to transform the utility easements into a legal right to impose a drainage pattern that is directly contrary to the subdivision's Drainage Plan-which was recorded contemporaneously with the plat. Warren recognizes that subsequent use of an easement may serve to clarify the "course, manner, extent, and length" of an express easement grant. Id. at 736 (¶ 16). However, the Supreme Court did not hold that use of the easement can materially change the permissible uses of the easement.

¶ 30. Neither the subdivision plat nor any other document in evidence unambiguously establishes the drainage easement claimed by the plaintiffs in this case. In addition, the chancellor did not manifestly err in finding that the plaintiffs failed to established such an easement through extrinsic evidence. Therefore, we affirm the chancellor's ruling that the plaintiffs failed to prove an express drainage easement.

II. Prescriptive Drainage Easements

¶ 31. The plaintiffs also argue that they proved a prescriptive easement to use the PVC pipe to drain water from their lots onto Oliver's property. However, the plaintiffs' complaint did not assert a claim for a prescriptive easement. Nor did the plaintiffs raise the issue at either hearing in the chancery court. The first mention of a prescriptive easement was in Oliver's proposed findings of fact and conclusions of law, which asked the chancellor to find that the plaintiffs failed to prove a prescriptive easement. In the final judgment, the chancellor found that the plaintiffs failed to prove a prescriptive easement, and the plaintiffs challenge the chancellor's finding on appeal. Although it is not entirely clear that the plaintiffs properly raised this issue in the trial court, Oliver does not argue that the issue is waived and addresses it on the merits. Therefore, we will also address the issue. See Fortner v. Specialty Contracting LLC , 217 So.3d 736, 746 (¶ 31) (Miss. Ct. App. 2017) ("[A] party can waive a waiver argument by not making the argument below or in its briefs [on appeal]." (quoting Freeman v. Pittsburgh Glass Works LLC , 709 F.3d 240, 250 (3d Cir. 2013) ).

¶ 32. "The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land." Thornhill v. Caroline Hunt Tr. Estate , 594 So.2d 1150, 1152 (Miss. 1992). "[T]o establish adverse possession or a prescriptive easement here, the [plaintiffs] must show that the possession was: (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful." Id. at 1152-53 (quotation marks omitted). "These elements must be proven by clear and convincing evidence." Id. at 1153. "Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level." Massey v. Lambert , 84 So.3d 846, 848 (¶ 7) (Miss. Ct. App. 2012) (alterations, quotation marks omitted).

¶ 33. A chancellor's "finding that the proof was insufficient to sustain a claim of adverse possession"-or, in this case, a prescriptive easement-"is a fact-finding that requires our application of the substantial evidence/manifest error test." Dean v. Slade , 63 So.3d 1230, 1235 (¶ 21) (Miss. Ct. App. 2010). "It requires little familiarity with the institutional structure of our judicial system to know that this Court does not sit to redetermine questions of fact." Johnson v. Black , 469 So.2d 88, 90 (Miss. 1985). "The chancellor is the finder of fact, and the assessment of witness credibility lies within his sole province." Darnell v. Darnell , No. 2015-CA-00764-SCT, 234 So.3d 421, 423-24, 2017 WL 4837643, at *2 (¶ 8) (Miss. Oct. 26, 2017) (quotation marks omitted); accord Irle v. Foster , 175 So.3d 1232, 1237 (¶ 32) (Miss. 2015) (holding that the "power" to "judge[ ] the credibility of the witnesses" "lies with [the chancellor] alone"). "This Court gives deference to a chancellor's findings in regard to witness testimony, because the chancellor is able to observe and personally evaluate the witnesses' testimony and the parties' behavior." McNeese v. McNeese , 119 So.3d 264, 275 (¶ 32) (Miss. 2013) (quotation marks omitted). It is also "for the chancellor to determine the ... weight of the evidence." Powell v. Ayars , 792 So.2d 240, 243 (¶ 6) (Miss. 2001).

¶ 34. Therefore, when "there is conflicting testimony, the chancellor, as the trier of fact, is the judge of the credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation." Bowen v. Bowen , 982 So.2d 385, 395 (¶ 42) (Miss. 2008) (quotation marks omitted). "This Court will not substitute its judgment for that of the chancellor even if this Court disagrees with the lower court on the finding of fact and might arrive at a different conclusion." Sanderson v. Sanderson , 170 So.3d 430, 434 (¶ 13) (Miss. 2014) (alterations, quotation marks omitted).

¶ 35. In this case, the chancellor found that the plaintiffs failed to meet their burden to prove at least two elements of a prescriptive easement: possession that was (1) "open, notorious, and visible" and (2) "continuous and uninterrupted for a period of ten years." Therefore, on appeal, this Court is limited to determining whether the chancellor committed manifest error when she found that the plaintiffs failed to prove these facts by clear and convincing evidence . Moreover, in addressing this question, this Court is not permitted to reweigh or reinterpret the evidence or reevaluate the credibility of the witnesses.

¶ 36. In light of the plaintiffs' high burden of proof, the conflicting evidence presented, and our limited standard of review, we must affirm the chancellor's judgment on this issue. The chancellor visited the property and saw the PVC pipe at issue. The pipe visibly protrudes only a short distance into the culvert that runs under Oliver's driveway. The chancellor found that the direction and source of any water that travels through the pipe are not visible or apparent from its endpoint in Oliver's culvert. Also, there is no evidence that water regularly or frequently flowed through the pipe. The evidence seems to suggest that only very heavy rains would have produced any significant flow of water through the pipe. In addition, McNeil testified that there were periods of time that the pipe was clogged or crushed such that no water would have flowed through it. Oliver testified that she did not even notice the pipe until just before this lawsuit was filed. And McNeil pointedly testified that no one consulted or notified Oliver when the old metal pipe was replaced with the PVC pipe. On this evidence, the chancellor did not manifestly err by finding that the plaintiffs' use of the PVC pipe failed to establish an "open, notorious, and visible" drainage easement by clear and convincing evidence.

¶ 37. Nor did the chancellor manifestly err in finding that the plaintiffs failed to prove ten years of "continuous and uninterrupted possession." The chancellor's finding on this issue was consistent with McNeil's own testimony that there were various periods of time that the pipe was clogged or crushed so that water did not drain through the pipe. Therefore, we cannot say that the chancellor clearly erred in finding that the plaintiffs failed to prove this element of their claim by clear and convincing evidence.

¶ 38. Because the chancellor found that the plaintiffs failed to prove two elements of a prescriptive easement, and because the chancellor's findings are not clearly or manifestly erroneous, we affirm the chancellor's ruling that the plaintiffs never acquired a drainage easement by prescription.

III. Restrictive Covenants

¶ 39. The chancellor ruled that Oliver was bound by the subdivision's restrictive covenants and that Oliver was in violation of a covenant prohibiting homeowners from obstructing easements; however, the chancellor then ruled that Oliver had violated the covenant only because "alterations" to the subdivision's Drainage Plan "caused an excess amount of water to flow upon [Oliver's] property." The chancellor ruled that this provided Oliver with "a defense to her violation of the restrictive covenant" because the alterations to the Drainage Plan did not comply with the statutory procedure for altering a recorded plat. See Miss. Code Ann. § 17-1-23(4) (Rev. 2012); Miss. Code Ann. § 19-27-31 (Rev. 2012).

¶ 40. On appeal, the plaintiffs argue that the chancellor erred in denying them injunctive relief based on Oliver's alleged violation of the restrictive covenant. They argue, among other things, that they were not required to petition for an alteration to the Drainage Plan and that the chancellor erred in treating their failure to file such a petition as a "defense" to Oliver's violation of the covenant. We affirm the denial of injunctive relief on this issue, albeit for a different reason. See Brocato v. Miss. Publishers Corp. , 503 So.2d 241, 244 (Miss. 1987) (holding that an appellate court may affirm for any reason sufficient to sustain the judgment and is not limited to the reasons given by the lower court).

¶ 41. The subdivision's "Declaration of Protective Covenants and Restrictions" was recorded, and Oliver's deed specifically referenced it by book and page number.

Although Oliver testified that she did not know about the covenants, there is no question that she was bound by them. See, e.g. , Perry v. Bridgetown Cmty. Ass'n Inc. , 486 So.2d 1230, 1234 (Miss. 1986). She does not argue otherwise on appeal.

¶ 42. However, our affirmance of the chancellor's rulings that the plaintiffs do not possess express or prescriptive drainage easements inescapably leads to the further conclusion that Oliver was not in violation of the relevant covenant. The plaintiffs rely on a covenant that states: "Easements for drainage and utility purposes, as shown upon the plat filed herewith or upon any other instrument of record, shall remain unobstructed." The chancellor found, and we have affirmed, that the plaintiffs do not possess an express or prescriptive easement to drain water off of their lots and into Oliver's culvert via the PVC pipe. That being the case, Oliver simply did not violate the above-quoted covenant by obstructing the PVC pipe or her culvert. The pipe and culvert were in a "utility easement," but-as the chancellor found and we affirm-the utility easement did not grant the plaintiffs any drainage rights, and Oliver did nothing to obstruct or prevent its use as a utility easement.

¶ 43. It was the plaintiffs who first injected the issue of the Drainage Plan into the case when they alleged in their complaint that "[t]he current drainage pattern [in the cul-de-sac] is consistent with the [subdivision's] original Drainage Plan." This allegation turned out to be wrong. The evidence is clear that the present drainage pattern in the cul-de-sac bears little resemblance to the recorded Drainage Plan. The drainage on Oliver's lot is substantially consistent with the Plan, but most of the runoff from the plaintiffs' lots is directly contrary to the Plan. On appeal, the parties have debated whether the plaintiffs or their predecessors were required to file a petition to alter the recorded Drainage Plan. They have also debated whether the chancellor erred by treating the absence of such a petition as a "defense" to a violation of the subdivision's restrictive covenants. But for the reasons discussed above, it is unnecessary to address these issues. It is sufficient to say: (1) given the chancellor's findings that the plaintiffs do not possess a drainage easement into Oliver's culvert via the PVC pipe, Oliver simply was not in violation of the covenants; (2) the plaintiffs clearly are not entitled to any relief under the Drainage Plan, as what they seek is contrary to the Plan; and (3) for purposes of this appeal, this Court has not treated the Drainage Plan or the statute as a "defense" to any of the plaintiffs' claims.

IV. Plaintiffs' Claims for Damages and Injunctive Relief

¶ 44. Because the plaintiffs did not establish an express or prescriptive easement or a violation of the restrictive covenant, it follows that they are not entitled to injunctive relief or damages. See Miss. High. Sch. Activities Ass'n v. Hattiesburg High Sch. , 178 So.3d 1208, 1213 (¶ 22) (Miss. 2015) ("an application for injunctive relief must be predicated on some legal or equitable claim "); Alabama v. U.S. Army Corps of Eng'rs , 424 F.3d 1117, 1127 (11th Cir. 2005) ("[A]ny ... suit for ... a ... permanent injunction must be based upon a cause of action .... There is no such thing as a suit for a traditional injunction in the abstract." (quotation marks omitted)).

V. Oliver's Request for Attorney's Fees

¶ 45. On cross-appeal, Oliver argues that the chancellor erred by denying her request for attorney's fees. She argues that she is entitled to attorney's fees as a matter of law because she was wrongfully enjoined. See M.R.C.P. 65(c). In denying Oliver's motion, the chancellor cited Rice Researchers, Inc. v. Hiter , 512 So.2d 1259 (Miss. 1987), in which our Supreme Court summarized its precedents on this issue as follows:

If the relief sought is for an injunction alone, attorneys fees for dissolution must be allowed. However, where the prayer for injunction is ancillary to the main relief sought and the entire case is heard finally, and not separately on any preliminary motion to dissolve, attorneys fees should not be allowed. But, where the entire relief sought is controlled by the injunction, attorneys fees are allowable, even though there is no preliminary motion to dissolve the injunction and the injunction is not dissolved until the final hearing on the merits. ... Properly understood, the rule is that, where injunctive relief is the primary remedy sought, fees and expense award follow dissolution of preliminary injunctive relief.

Id. at 1270-71 (citations, paragraph break omitted).

¶ 46. We affirm the chancellor's denial of Oliver's request for attorney's fees in light of the claims that were asserted in this case. All three plaintiffs asserted claims for substantial compensatory damages based on alleged damage to their lawn and resulting costs, and all three also introduced evidence at the final hearing to support their claims. As noted above, Oliver also asserted a counterclaim for $79,185.50 in alleged damages to her driveway, and she too presented evidence on her claim at the final hearing. Oliver also sought injunctive relief. Thus, the plaintiffs did not seek "an injunction alone," and we cannot say that an injunction was "the primary remedy sought" in this case. Id. We also note that there was no "preliminary motion to dissolve" the preliminary injunction; it simply terminated with the final judgment, after the conclusion of the hearing on the merits. In these circumstances, we cannot say that the chancellor erred by denying Oliver's request for attorney's fees. Id.

CONCLUSION

¶47. On direct appeal, we affirm the chancellor's findings that the plaintiffs failed to establish an express or prescriptive drainage easement. Therefore, we also affirm the chancellor's denial of the plaintiffs' claims for damages and injunctive relief. On cross-appeal, we hold that the chancellor did not err by denying Oliver's request for attorney's fees. Therefore, we affirm the judgment of the chancery court in its entirety.

¶ 48. ON DIRECT APPEAL: AFFIRMED. ON CROSS APPEAL: AFFIRMED.

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

LEE, CJ., IRVING, P.J., AND BARNES, J., JOIN THIS OPINION.

GREENLEE, J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 49. I concur with the majority opinion that the plaintiffs were not entitled to express drainage easements, and they were not required to proceed under either statutory mechanism regarding amendment of a subdivision plat. But dissenting, I would find that the chancellor manifestly erred when she concluded that Mayton and Maranto had failed to present clear and convincing evidence that their use of the PVC pipe and Oliver's culvert were open, notorious, and visible, and uninterrupted for at least ten years. Consequently, I would remand the case to the chancellor so she could determine whether Mayton and Maranto had satisfied their burden of proof regarding the remaining prescriptive-easement elements.

¶ 50. Although relatively uncommon, prescriptive drainage rights are not unprecedented in Mississippi. See Lauck v. Gilbert , 252 Miss. 371, 395, 173 So.2d 626, 638 (1965) ; Pompey Lake Drainage Dist. v. McKinney Lake Drainage Dist. , 136 Miss. 168, 177, 99 So. 387, 389 (1924) ; Fratesi v. City of Indianola , 972 So.2d 38, 43 (¶ 12) (Miss. Ct. App. 2008). The first time "prescriptive easement" appears in the record is in Oliver's proposed findings of fact and conclusions of law. Oliver did not conclude that Mayton, McNeil, and Maranto had failed to raise prescriptive-easement claims. Instead, she suggested that the chancellor find that they had failed to satisfy their burden of proof. Similarly, the chancellor held that they failed to present clear and convincing evidence that their drainage was open, notorious, and visible, and it had not been continuous and uninterrupted for at least ten years. Consequently, the chancellor did not address the remaining elements. So although the appellants did not raise prescriptive-easement claims in their complaint, that theory was tried by consent. See M.R.C.P. 15(b) ; Swenson v. Brouillette , 163 So.3d 957, 963-64 (¶¶ 20-22) (Miss. Ct. App. 2014).

¶ 51. "The burden of proof needed to establish a prescriptive easement is the same as for a claim of adverse possession of land." Swenson , 163 So.3d at 964 (¶ 24) (quoting Evanna Plantation Inc. v. Thomas , 999 So.2d 442, 447 (¶ 17) (Miss. Ct. App. 2009) ). "To acquire a prescriptive easement[,] the claimant must show [clear and convincing evidence] that the possession was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years." Id. "Clear and convincing evidence is ... so ... direct and weighty ... as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case." Moran v. Fairley , 919 So.2d 969, 975 (¶ 24) (Miss. Ct. App. 2005).

¶ 52. After inspecting the properties and hearing the evidence, the chancellor found that Mayton, McNeil, and Maranto failed to adequately prove that their use was open, notorious, and visible because "the [PVC] pipe is not visible nor is the direction in which it drains water." The chancellor also held that "no one seem[ed] to know who installed the [six-]inch PVC pipe ... or when it was installed." Thus, she concluded that it had not been in continuous and uninterrupted use for ten years.

¶ 53. I would find that under the precise circumstances of this case, the chancellor was manifestly wrong in concluding that Mayton and Maranto's use of the six-inch PVC pipe was not open, notorious, and visible, and that it had not been in continuous and uninterrupted use for at least ten years. It was uncontested that a metal pipe was under the private road in 1981, it was approximately six inches in diameter, and it drained what eventually became Maranto's lot onto Oliver's. It was also uncontested that Tom Cameron had the metal pipe replaced with the six-inch PVC pipe in December 2007, both being under the private road to Oliver's home. The six-inch PVC pipe is in the same location as the previous metal version, slightly north of the small cul-de-sac that leads to Oliver's driveway. There was no testimony that it was impossible to see the six-inch PVC pipe. Oliver certainly knew that she had not installed it, and it was replaced approximately twenty years after she moved into the subdivision. The expert witnesses for both sides were able to observe it, and the parties had no difficulty describing it. A picture of the end that terminated onto Oliver's property is included in plaintiffs' exhibit twenty-two. It could not have channeled water if it was not open and exposed on both ends. Oliver testified that water plainly flowed through it onto her property. And Mayton testified that Oliver had called authorities when he had the six-inch PVC pipe flushed with water. McNeil testified that "occasionally, it takes a little manpower to shovel the debris" away from the six-inch PVC pipe. There was also testimony that the city had previously flushed the six-inch PVC pipe and the metal version that preceded it. The Pennsylvania Commonwealth Court has held that such maintenance activities - "periodically cleaning ... pipes ... every couple of years" - were sufficient to satisfy the "open, notorious, and visible" element in the context of a claim for a prescriptive drainage easement. Gehres v. Falls Twp. , 948 A.2d 249, 254 (Pa. Commw. Ct. 2008).

¶ 54. The chancellor did not analyze the remaining elements necessary to obtain a prescriptive easement. In Delancey v. Mallette , 912 So.2d 483, 488 (¶ 15) (Miss. Ct. App. 2005), a chancellor had found that a claimant failed to present sufficient evidence of the "under a claim of ownership" element. On appeal, this Court concluded that the chancellor applied the incorrect legal standard. Id. at (¶ 16). Although the Delancey Court commented on some of the remaining elements, it did not proceed to act as a fact-finder and analyze all of the prescriptive-easement elements for the first time on appeal. Id. at 488-89 (¶¶ 16-18). Instead, the Court remanded the case to the chancellor for a determination whether the plaintiff had "proven all [of] the elements necessary to establish a claim for a prescriptive easement." Id. at 489 (¶ 19). Thus, I would remand the case to the chancellor for further consideration of the remaining elements. Accordingly, I respectfully dissent in part.

      There is some ambiguity in the record as to whether the beginning point of the PVC pipe is on Mayton's lot or Maranto's lot (Lot 4). However, the ambiguity is not material to any of the issues in this appeal. As explained below, the pipe drains both lots, and both Mayton and Maranto claim it as a drainage easement.

      See, e.g. , Am. Elec. v. Singarayar , 530 So.2d 1319, 1324 (Miss. 1988).

      The parties' pleadings, arguments, and evidence in the chancery court did not rely on or address the general common-law principles governing the duties and rights of "upper" and "lower" landowners. See generally Hall v. Wood , 443 So.2d 834, 838-40 (Miss. 1983). Therefore, our decision does not address these principles.

      The plaintiffs' reliance on the two five-foot drainage easements shown on some surveys near Lot 5/Lot 4 property line is also misplaced. Those drainage easements are not in the same area as the disputed PVC pipe. In fact, those easements appear to be consistent with drainage from the Maranto lot (Lot 4), which remains unobstructed and is not at issue in this appeal. See supra ¶ 13.

      See Miss. Code Ann. §§ 17-1-23(4) & 19-27-31 ; COR Devs. LLC v. Coll. Hill Heights Homeowners LLC , 973 So.2d 273, 282-88 (¶¶ 22-36) (Miss. Ct. App. 2008) (discussing sections 17-1-23(4) and 19-27-31 ); Miss. Att'y Gen. Op. No. 2002-0254, 2002 WL 1380961, at *2 (May 17, 2002) (opining "that Section 19-27-31 sets out the procedure to change a subdivision plat" but "does not dictate when or under what circumstances a plat must be changed").

      On appeal, Oliver emphasizes that the plaintiffs' complaint was based in part on the plaintiffs' false assertion that they were in compliance with the subdivision's recorded Drainage Plan. However, that assertion was shown to be false at the preliminary injunction hearing and therefore was not the basis for the preliminary injunction.

      On appeal, the plaintiffs have not claimed that the chancellor erred by finding that McNeil was not entitled to a prescriptive drainage easement based on characteristics of the six-inch PVC pipe that runs beneath the private road. It was undisputed that McNeil's runoff did not flow through the six-inch PVC pipe.

      McNeil testified that the original metal pipe under the private road "was originally placed there by [D.W. Rochow] when he built the subdivision and when ... Leroy Davenport ... built his house, he [put] the PVC pipe that's in question across the road there[,] and it's remained functional until it rusted. At that point, Mr. Cameron was living in that house and he had the city replace it."