source: Caselaw Access Project

author: CHAMBERLIN, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    Andrew L. WARD, Jr., as Personal Representative of Larry and Mildred Seward, Deceased v. ILLINOIS CENTRAL RAILROAD COMPANY
    NO. 2018-CA-00285-SCT
    Supreme Court of Mississippi.
    May 23, 2019
    ATTORNEYS FOR APPELLANT: CHARLES EDWARD SOREY, II, Ridgeland, PATRICK STEVEN O'BRIEN
    ATTORNEYS FOR APPELLEE: STEPHANIE CAMILLE REIFERS, THOMAS R. PETERS, BROOKS E. KOSTAKIS
    EN BANC.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. Andrew L. Ward sued Illinois Central Railroad Company on behalf of Larry Seward. Ward alleged that Illinois Central breached its duty of care and failed to provide Seward with a safe place to work, allegedly causing Seward's brain cancer. Illinois Central filed a motion for summary judgment based on a previous settlement and release that Seward had entered into with Illinois Central before his death. The trial court granted Illinois Central's motion for summary judgment. Ward appealed the trial court's grant of summary judgment. The Court affirms.

STATEMENT OF FACTS

¶2. Larry Seward worked for Illinois Central Railroad Company from 1961 to 2004. In 2005, Seward settled an asbestosis claim with Illinois Central. He subsequently developed and passed away from anaplastic oligodendroglioma, a type of brain cancer.

¶3. In 2012, Andrew L. Ward sued Illinois Central on behalf of Seward. Ward alleged that Illinois Central breached its duty of care and failed to provide Seward with a safe place to work. The complaint detailed specific issues with the work environment, including Seward's exposure to chemicals and hazardous conditions. The complaint alleged that the working environment "caused, in whole or in part," Seward's brain cancer.

¶4. Illinois Central filed a motion for summary judgment based on the settlement and release that Seward signed in 2005. The 2005 settlement was due to an asbestos-related illness. In pertinent part, the release provided,

[T]he Undersigned alleges [that Releasees (Illinois Central) ] created an exposure or exposures to asbestos, coal, coal dust, welding fumes, brass fumes, diesel fumes, dust, paint vapors, fuel fumes, methyl bromide, ammonia gas, sand, silica, Dow Clean, solvents, cleaners, degreasers, and other fumes, dusts, mists, gases, and vapors from any material, chemical, toxin or other agent. The Undersigned asserts that such exposure caused a condition, injury, disease and/or deficiency (hereinafter, referred to as "condition") in the Undersigned including, but not limited to plaques, calcifications, thickening, pneumoconiosis including asbestosis and silicosis, severe and permanent injuries to the lungs, respiratory system, nerves and/or nervous system, cancer, and any and all other conditions, diseases or injuries existing prior to the date of this Release Agreement which are known to the Undersigned or reasonably could have been known prior to the date of this Release Agreement and which may further develop in the future as a result of what now exists, arising from or as a result of the alleged exposures or which may further develop as a result of the Undersigned's current known or unknown conditions, which allegedly developed over time while working in one or more of the Releasees employ, which are expressly released herein.

In the process of making the settlement, Illinois Central asked Seward to fill out its "Pulmonary Questionnaire." The pulmonary questionnaire asked Seward to "[p]lease check all chemicals you allege exposures from while employed at Illinois Central." Seward placed an "x" or a check mark next to asbestos, diesel exhaust, silica, solvents, degreasers, coal, chemicals and weed spray. He also checked that he had been diagnosed with asbestosis, bronchitis and pneumonia.

¶5. Ward presented the testimony of Robert Peirce Jr. Peirce was Seward's attorney at the time of the 2005 settlement and release. Peirce's affidavit stated that "Mr. Seward and myself were unaware that Mr. Seward has suffered exposures to chemical which would ultimately cause him to contract primary brain cancer ...." Peirce further provided that he "did not negotiate or obtain any monies from Illinois Central Railroad Company to compensate Mr. Seward for anything other than his lung injury" and if he "[h]ad known that Mr. Seward would subsequently develop anaplastic oligodemdroglioma or any other occupational cancer not listed in the Complaint or Release [he] would have demanded additional compensation for Mr. Seward." Peirce also provided the following deposition testimony:

Q. You agree with me that these questionnaires ask about exposure beyond asbestos to each of these individuals; correct?
A. No, I don't agree with that.
Q. What do you think the purpose of question 3A is?
A. It says check all the chemicals you allege exposure from while employed at Illinois Central.
Q. So do you think they're looking for exposures beyond just asbestos in answer to that question?
A. No.
Q. What do you think they're looking for?
A. I think they're looking for asbestos exposure.
....
Q. Is it your position the railroad didn't want to know that they were exposed to diesel exhaust, they just wanted to know if they were exposed to asbestos?
A. No. But I believe exposure to diesel exhaust could be a contributing force in asbestosis.
Q. How is that?
A. Well, I think that some people believe that exposure to diesel exhaust can cause asbestosis or asbestosis-related diseases. So that's probably why it was included in there.

¶6. The trial court granted Illinois Central's motion for summary judgment. The trial court concluded that "[t]he Plaintiff has failed to provide any evidence that would create a question of fact as to whether Mr. Seward did not contemplate (or otherwise have the opportunity to contemplate) the risks of his exposure to the above-listed toxins when he settled his prior claims." Ward appealed the trial court's grant of summary judgment.

STATEMENT OF THE ISSUE

¶7. Although the parties style the issue slightly differently, both parties agree that the only issue on appeal is whether summary judgment was properly granted.

STANDARD OF REVIEW

¶8. The Court applies de novo review to the grant or denial of summary judgment. Ill. Cent. R.R. Co. v. Jackson , 179 So.3d 1037, 1044 (Miss. 2015) (citing Serv. Cos., Inc. v. Estate of Vaughn , 169 So.3d 875, 878 (Miss. 2015) ). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). "A fact is material if it tends to resolve any of the issues properly raised by the parties." Holland v. Peoples Bank & Tr. Co. , 3 So.3d 94, 99 (Miss. 2008) (internal quotation marks omitted) (quoting Simpson v. Boyd , 880 So.2d 1047, 1050 (Miss. 2004) ). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Jackson , 179 So.3d at 1044 (citing Hosemann v. Harris , 163 So.3d 263, 267 (Miss. 2015) ). Further, the Court has provided,

"A motion for summary judgment should be overruled unless the trial court finds, beyond a reasonable doubt, that the plaintiff would be unable to prove any facts to support his claim." The lower court is prohibited from trying the issues; "it may only determine whether there are issues to be tried." The non-moving party ... has the burden of providing " 'supportive evidence of significant and probative value' in opposition to the motion for summary judgment."

Palmer v. Anderson Infirmary Benevolent Ass'n , 656 So.2d 790, 795-96 (Miss. 1995) (emphasis removed) (citations omitted).

ANALYSIS

Whether the trial court erred in granting Illinois Central Railroad Company's motion for summary judgment.

¶9. This case is governed by the Federal Employers' Liability Act (FELA). "FELA was designed 'to enable injured railroad workers to overcome a number of traditional defenses to tort liability that had previously operated to bar their actions.' " Wicker v. Consol. Rail Corp. , 142 F.3d 690, 696 (3d Cir. 1998) (quoting Lewy v. S. Pac. Transp. Co. , 799 F.2d 1281, 1287 (9th Cir. 1986) ). In pertinent part, FELA provides, "Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void ...." 45 U.S.C.A. § 55 (West 2007).

¶10. Courts around the country have adopted different approaches to interpreting Section 5 of the FELA. In Wicker , the United States Court of Appeals for the Third Circuit stated that "[t]o the extent that a release chronicles the scope and duration of the known risks, it would supply strong evidence in support of the release defense." Wicker , 142 F.3d at 701. In Illinois Central Railroad Co. v. Acuff , the Court adopted Wicker 's "known risk" test. Ill. Cent. R.R. Co. v. Acuff , 950 So.2d 947, 960 (Miss. 2006) ("[U]nder the specific language of Section 5 of the FELA and United States Supreme Court precedent, we find the Third Circuit's approach allowing the release of future claims based on specific risks known to the parties to be appropriate.").

¶11. Ward argues that the trial court overlooked the existence of the affidavit and the deposition testimony of Peirce, Seward's attorney. Ward concludes that Peirce's testimony makes Seward's intent a fact-intensive inquiry. Further, Ward argues that the determination of whether the release was boilerplate is also a jury issue. On the other hand, Illinois Central compares this case to Acuff and argues that summary judgment was appropriate. Illinois Central points to the release and to the pulmonary questionnaire and states that they are "limited to specific known risks." Further, Illinois Central states that Peirce's testimony was "immaterial and insufficient to create a material issue of fact in light of the other undisputed evidence."

¶12. Here, under Acuff and Wicker , the inquiry is two-fold. The Court considers whether the release at issue is boilerplate and whether the risk of developing brain cancer was known and contemplated by Seward at the time he signed the release.

¶13. Notably, Wicker explained the importance of allowing parties the right to quantify and limit future liabilities. It stated that "the parties may want to settle controversies about potential liability and damages related to known risks even if there is no present manifestation of injury." Wicker , 142 F.3d at 700-01. Further, although Wicker supported the use of releases, it also qualified the power of the release, stating,

But we are wary of making the validity of the release turn on the writing alone because of the ease in writing detailed boiler plate [sic] agreements; draft releases might well include an extensive catalog of every chemical and hazard known to railroad employment. For this reason, we think the written release should not be conclusive. We recognize that what is involved is a fact-intensive process, but trial courts are competent to make these kinds of determinations.

Id. at 701. The release "may be strong, but not conclusive, evidence of the parties' intent." Id. Wicker defined specific situations requiring a fact-intensive inquiry: "[w]here a specific known risk or malady is not mentioned in the release, it would seem difficult for the employer to show it was known to the employee and that he or she intended to release liability for it[,]" and "where a release merely details a laundry list of diseases or hazards, the employee may attack that release as boiler plate [sic], not reflecting his or her intent." Id. To determine if the release was boilerplate, the Wicker Court looked to the language of the release. The Wicker Court differentiated between releases that "recite a series of generic hazards to which [the employee] might have been exposed" and releases that provide "specific risks the employees faced during the course of their employment." Id.

¶14. The Acuff Court faced facts similar to this case, including an affidavit from the attorney involved in the original lawsuit. Acuff , 950 So.2d at 958. However, in Acuff , Illinois Central filed a motion to enforce the settlement agreement, and the parties agreed to have the trial judge determine all issues of law and fact. Id. at 952. The trial judge treated the known-risk analysis as fact-intensive and sat as the finder of fact. Id. On appeal, the Court applied an abuse-of-discretion standard of review. Id. Therefore, although we cite Acuff for its adoption of Wicker , it provides little guidance regarding whether a contested issue of material fact exists.

¶15. Because the caselaw in Mississippi is limited, the Court looks to other states and federal courts for guidance. Wicker has been applied supporting and rejecting the grant of summary judgment.

¶16. In Jaqua v. Canadian National Railroad, Inc. , 274 Mich.App. 540, 734 N.W.2d 228 (2007), the Court of Appeals of Michigan noted the specificity within the release at issue and granted summary judgment. Id. at 237. The Jaqua Court stated, "Jaqua specifically settled claims regarding cancer as well as any other illnesses related to his asbestos exposure. The release addressed a specific instance of disputed liability and specific injuries that Jaqua suffered, or was at great risk of suffering in the future-asbestosis and lung cancer." Id. (footnote omitted).

¶17. Similarly, in Blackwell v. CSX Transportation, Inc. , 220 Md.App. 113, 102 A.3d 864 (2014), the Court of Special Appeals of Maryland affirmed the grant of summary judgment. Id. at 873. It adopted Wicker and held that the first release contemplated the second suit. Id. Specifically, it held that the first release had released CSX Transport from "any new or additional repetitive stress or cumulative trauma injury either presently existing or that may arise in the future to the lower extremities or other body parts." Id. Blackwell's subsequent suit was due to "bilateral plantar fasciitis," an injury to his lower extremity ; therefore, the court concluded that the first release specifically contemplated the second suit. Id.

¶18. Courts have also looked to Wicker to conclude that the interpretation of releases is fact-intensive and to support denial of summary judgment. Wicker , 142 F.3d at 701. The Supreme Court of Virginia recently addressed the application of Wicker 's known-risk test to a settlement and release. Cole v. Norfolk S. Ry. Co. , 294 Va. 92, 803 S.E.2d 346, 352 (2017). Similar to Acuff , the analysis was fact-intensive, and the trial judge sat as the finder of fact. Id. at 353.

¶19. Further, in Sinclair v. Burlington Northern and Santa Fe Railway Co. , 347 Mont. 395, 200 P.3d 46 (2008), the Supreme Court of Montana applied Wicker and denied summary judgment. The Sinclair Court considered the lack of specificity within the release, stating that "the release does not even specifically mention exposure to manganese poisoning at all." Id. at 60. The court then denied summary judgment, concluding that "the language of the release in this case is not sufficient to show an absence of a genuine issue of material fact ...." Id.

¶20. The Court now turns to the specific language of this release which it states,

The Undersigned asserts that such exposure caused a condition, injury, disease and/or deficiency (hereinafter, referred to as "condition") in the Undersigned including, but not limited to plaques, calcifications, thickening, pneumoconiosis including asbestosis and silicosis, severe and permanent injuries to the lungs, respiratory system, nerves and/or nervous system, cancer, and any and all other conditions, diseases or injuries existing prior to the date of this Release Agreement which are known to the Undersigned or reasonably could have been known prior to the date of this Release Agreement and which may further develop in the future as a result of what now exists ....

(Emphasis added.) Turning to our summary-judgment standard, the question is whether "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c). Here, the parties disagree on whether Peirce's testimony creates a genuine issue of material fact.

¶21. The first question is whether the language is boilerplate. Although the release does not address the development of anaplastic oligodemdroglioma, it does clearly provide for the release of cancer. No dispute exists that anaplastic oligodemdroglioma is a type of cancer. Like in Blackwell , although the exact name of the illness was not listed on the release, the illness provided is still sufficiently specific. See Blackwell , 102 A.3d at 873 ; see also Wicker , 142 F.3d at 701 (upholding releases that provide "specific risks the employees faced during the course of their employment"). Peirce did not testify regarding whether the release's language was boilerplate. While the dissent maintains that Seward's release is not distinguishable from the releases in Wicker as far as an inclusive list of chemical exposures and diseases are concerned, Seward's release is more specific and limited than the Wicker releases. Diss. ¶30. The releases in Wicker released the railroad from injuries "known or unknown" and, in Wicker's release, "foreseen or unforeseen." Wicker , 142 F.3d at 693-94. Also, if they included any list of exposures at all, the exposures in the releases were phrased in generic, broad terms. Id. In contrast, Seward released Illinois Central from known and specific injuries and conditions as well as those "which may further develop in the future as a result of what now exists, arising from or as a result of the alleged exposures," which had been listed in the release in specific detail. Therefore, the Court holds that the release was sufficiently specific and that it was not boilerplate.

¶22. The second question is whether the risk of developing cancer was known and contemplated by Seward at the time he signed the release. While Seward may not specifically have known he would develop anaplastic oligodemdroglioma, as stated above, cancer was clearly and specifically listed on the release. Further, Ward's complaint provides that Seward was exposed to diesel exhaust and additional chemicals and alleges that they "caused, in whole or in part," Seward's brain cancer. The release lists exposure to diesel fumes and provides a list of additional chemicals. Also, Seward checked exposure to diesel exhaust and chemicals on the pulmonary questionnaire. The release and the pulmonary questionnaire illustrate that Seward was on notice of the risk of suffering from cancer due to the listed exposures, unlike in Sinclair , in which the release did not specifically mention exposure to manganese poisoning. Sinclair , 200 P.3d at 60. Finally, Seward signed the release after his employment with Illinois Central had ended. Therefore, this suit cannot be due to an exposure to chemical or diesel fumes to which Seward had not already been exposed in 2005.

¶23. Peirce's after-the-fact testimony fails to change the specific language of the release and fails to affect the additional information and intent evidence illustrated by the pulmonary questionnaire. Thus, we hold that Peirce's testimony fails to create a genuine issue of material fact. Seward was on notice of the risk of cancer, including brain cancer, at the time he signed the release.

CONCLUSION

¶24. Accordingly, the judgment of the trial court is affirmed. Summary judgment was properly granted to Illinois Central.

¶25. AFFIRMED.

COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J. RANDOLPH, C.J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶26. Were this case governed by general contract law, I might agree with the majority's position that no genuine issues of material fact exist on whether Larry Seward waived his right to recover from Illinois Central Railroad for the brain cancer that ultimately killed him. But this case arose under the Federal Employers' Liability Act (FELA), which was intended "to provide liberal recovery for injured workers." Kernan v. Am. Dredging Co. , 355 U.S. 426, 432, 78 S.Ct. 394, 2 L.Ed. 2d 382 (1958) (citing Rogers v. Mo. Pac. R.R. Co. , 352 U.S. 500, 508-10, 77 S.Ct. 443, 1 L.Ed. 2d 493 (1957) ). Section 5 of FELA provides, in part, that "[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void." 45 U.S.C. § 55 (2012). Although this Court has adopted the analysis of Wicker v. Consolidated Rail Corp. , 142 F.3d 690, 701 (3d Cir. 1998), that under section 5 an employee may release known risks, claims relating to unknown risks may not be released. Wicker emphasized that the inquiry into the employee's intent is fact intensive and that the written release does not control. Id. Here, the attorney who represented Seward in negotiating the release averred that his understanding had been that the release covered Seward's lung injury claims, not future brain cancer. I find that this evidence, along with the language of the release and pulmonary questionnaire, created genuine issues of material fact on the question of whether Seward intended to release his claim for brain cancer. Therefore, I would reverse the grant of summary judgment and would remand the case for further proceedings.

¶27. In 2005 Seward entered into settlement, and, in the same year, he executed the release which provided, in part, that

WHEREAS, the Undersigned alleges that one or more of the Releasees were negligent and/or violated the Federal Employer's Liability Act, the same being the subject of Bobby McElhenney, et al. v. Illinois Central Railroad ... in allowing an allegedly unsafe work condition to exist that the Undersigned alleges created an exposure or exposures to asbestos, coal, coal dust, welding fumes, brass fumes, diesel fumes, dust, paint vapors, fuel fumes, methyl bromide, ammonia gas, sand, silica, Dow Clean, solvents, cleaners, degreasers, and other fumes, dusts, mites, gases, and vapors from any material, chemical, toxin or other agent. The Undersigned asserts that any such exposure caused a condition, injury, disease and/or deficiency (hereinafter, referred to as "condition") in the Undersigned including, but not limited to plaques, calcifications, thickening, pneumoconiosis including asbestosis and silicosis, severe and permanent injuries to the lungs, respiratory system, nerves and/or nervous system, cancer, and any and all other conditions, diseases or injuries existing prior to the date of this Release Agreement which are known to the Undersigned or reasonably could have been known prior to the date of this Release Agreement and which may further develop in the future as a result of what now exists, arising from or as a result of the alleged exposures or which may further develop as a result of the Undersigned's current known or unknown conditions, which allegedly developed over time while working in one or more of the releases employ, which are expressly released herein.

In conjunction with the settlement and release, Seward filled out a document titled "Pulmonary Questionnaire." Seward indicated on the Pulmonary Questionnaire that he had been exposed to asbestos, diesel exhaust, silica, solvents, degreasers, coal, chemicals, and weed spray for several hours per day, six days per week, for forty-one years. He listed his known medical diagnoses as asbestosis, bronchitis, and pneumonia, all of which are respiratory diseases. In 2007, Seward was diagnosed with anaplastic oligodendroglioma, a rare form of primary brain cancer. He died in 2008, and his representative, Andrew Ward, brought this action.

¶28. Attorney Robert N. Peirce, Jr., had represented Seward in the settlement negotiations. In an affidavit taken for this case, Peirce said that he had represented Seward "for damage to his lungs due to asbestos exposure" in a lawsuit filed in Holmes County, Mississippi, on December 19, 2002. Peirce said that he and Seward had been unaware that Seward had been exposed to "chemicals which ultimately would cause him to contract primary brain cancer, specifically anaplastic oligodendroglioma." Further, Peirce averred, he had not negotiated with Illinois Central to recover damages for injuries other than the lung injury but would have demanded additional compensation had he known Seward would develop brain cancer. Peirce said that neither he nor any other attorney had discussed with Seward the risk that he could develop primary brain cancer in the future.

¶29. In Illinois Central Railroad Co. v. Acuff , 950 So.2d 947 (Miss. 2006), this Court adopted Wicker 's "approach allowing the release of future claims based on specific risks known to the parties to be appropriate." Id. at 960. "[T]he key inquiry is whether or not the risk of developing [the claimed injury] was known and contemplated ... at the time [the employee] signed [the] release." Id. In Acuff , we recognized that "[u]nder general contract law, parties are usually free to contract away their rights, ... [h]owever, releases extinguishing an employee's claims for injuries under FELA are held to a higher standard ...." Id. Therefore, the language of the release is not conclusive. Wicker , 142 F.3d at 701. "Where a specific known risk or malady is not mentioned in the release, it would seem difficult for the employer to show it was known to the employee and that he or she intended to release liability for it." Id. A release that includes a "laundry list of diseases" may be attacked as boilerplate and not reflective of the employee's intent. Id. Testimony by the plaintiff and affidavits of attorneys who represented the parties at the time of a settlement and release are considered relevant evidence of intent. Acuff , 950 So.2d at 961 (citing Wicker , 142 F.3d at 695 ). Overall, the determination of whether a plaintiff's claim is barred by a prior release is "a fact-intensive process." Acuff , 950 So.2d at 961 (quoting Wicker , 142 F.3d at 701 ).

¶30. The majority acknowledges this standard, then concludes that, even after considering the evidence in the light most favorable to the plaintiff, no genuine issues of material fact exist about Seward's intent to waive his claim for brain cancer. I would find that a proper application of the standard yields a different conclusion: that genuine issues of material fact most certainly are present in this case. The majority finds no genuine issues of material fact on whether the release was boilerplate, because Peirce did not testify that it was boilerplate, and because the release is somewhat more specific than the releases in Wicker . With respect to the majority, the absence of testimony from Peirce is irrelevant because the release itself provides sufficient evidence to enable a reasonable fact finder to conclude the release was boilerplate. The release contains a laundry list of chemical exposures and diseases typical of boilerplate contractual language. In that respect, it is similar to the releases found to be boilerplate in Wicker . Wicker , 142 F.3d at 693-94, 701-02. Yet the majority usurps the fact finder role on this issue and deems the release not boilerplate as a matter of law.

¶31. The majority then finds no genuine issue of material fact that Seward contemplated his risk of brain cancer when he executed the release, ascribing great importance to the fact that the release listed "cancer" as one of the released conditions. The majority then reasons, "[w]hile Seward may not specifically have known he would develop anaplastic oligodendroglioma, ... cancer was clearly and specifically listed on the release." Maj. Op. ¶ 22. But the release lists "cancer" as an existing condition, not as a future condition for which Seward specifically waived liability should he develop it some time after signing the release. The release says that "any such exposure caused ... cancer, and any and all other conditions, diseases or injuries existing prior to the date of this Release Agreement which are known to[Seward] and which may further develop in the future as a result of what now exists ...." (Emphasis added.) Thus, an accurate reading of the release shows that it listed "cancer" as an existing condition; future conditions effectively were unlimited and included anything "which may further develop in the future as a result of what now exists." There is no dispute that Seward was not diagnosed with brain cancer until after he had signed the release; thus, the brain cancer could have been released only if listed in the category of future claims. This release, most assuredly, did not do that; it did not specifically list cancer, let alone brain cancer, as a potential future claim.

¶32. Even assuming that Seward should have been expected to foresee from his waiver of an existing cancer claim that he also was waiving a future cancer claim, the term "cancer" is extremely broad, encompassing a multitude of things from melanoma, a skin condition, to lung cancer, to Seward's primary brain cancer. Wicker held that a release, to be effective, must recite the "specific known risk or malady." Wicker , 142 F.3d at 701 (emphasis added). A reasonable fact finder could conclude that the release signed by Seward lacked the requisite specificity to attribute to him an intent to waive a future claim that the chemicals to which he was exposed at Illinois Central gave him brain cancer. This is especially true considering Peirce's averment that he thought the release was limited to Seward's lung injury, that he did not discuss the risk of brain cancer with Seward before Seward signed the release, and that he was unaware that Seward had been exposed to chemicals that carried a risk of brain cancer. The majority finds that, because the release and pulmonary questionnaire listed some of the same chemicals that Ward now alleges caused Seward's brain cancer, no genuine issues of material fact exist that Seward was on notice of the risk of developing brain cancer from those exposures. But because nothing shows that Seward knew that exposure to any of those chemicals carried a risk of brain cancer, I reject that analysis and would allow the fact finder to make the determination of what Seward knew when he signed the release.

¶33. The majority relies on two cases that found summary judgment was warranted based on the employee's waiver of a known risk. In Jaqua v. Canadian National Railroad, Inc. , 274 Mich.App. 540, 734 N.W.2d 228 (2007), much more evidence was presented than was addressed here that the employee knew of the specific risk before signing the release. The employee had signed a release similar to the release in this case; he released all claims for existing cancer and for diseases that "may further develop in the future as a result of what now exists." Id. at 230. The Court of Appeals of Michigan adopted Wicker 's known-risk approach and found that summary judgment was appropriate on a lung cancer claim brought by the employee's estate. Id. at 555-56, 734 N.W.2d 228. Critically, it was undisputed that, before the employee had signed the release, his physician had informed him that he was at risk of developing lung cancer. Id. at 542, 734 N.W.2d 228. No such information was given to Seward in advance of his signing the release.

¶34. And in Blackwell v. CSX Transportation, Inc. , 220 Md.App. 113, 102 A.3d 864 (2014), the release itself was much more specific than the release at issue here. The release provided that Blackwell "release[d] and forever discharge[d]" the employer from liability from a claim that he had been exposed to "repetitive stress and cumulative trauma [that] allegedly caused [him] to suffer knee injuries and other injuries, disorders, or diseases of the lower extremities." Id. at 866 (third and fourth alterations in original). And the release provided that a substantial portion of the consideration paid to Blackwell had been to compensate him for "the possibility of ... the development of any new or additional repetitive stress or cumulative trauma injury either presently existing or that may arise in the future to the lower extremities or other body parts." Id. Blackwell had consulted with counsel before signing the release. Id. Thus, when Blackwell developed bilateral plantar fasciitis, a foot condition that he claimed had been caused by repetitive trauma on the job, the court found that the injury specifically was covered by the language of the release. Id. at 873. Unlike in this case, the release in Blackwell was quite specific and was tailored to cover the exact kind of injury that Blackwell later claimed had arisen from his job duties, namely, a repetitive stress injury to the lower extremities.

¶35. I find that genuine issues of material fact exist on whether the release signed by Larry Seward was boilerplate and whether at the time Seward signed the release he knew and contemplated the risk that his chemical exposures would culminate in brain cancer. Therefore, I would reverse the judgment of the Circuit Court of DeSoto County and would remand the case for trial.

KING, P.J., JOINS THIS OPINION.

      Although Illinois Central brought other motions, the grant of summary judgment is the only motion addressed by the parties on appeal.

      45 U.S.C.A. § 55 is also referred to as Section 5 of the FELA.

      An employee negotiating a claim for an existing controversy materially differs from an employee agreeing to a voluntary end to his or her employment and not negotiating the settlement of an existing controversy. Ratliff v. Norfolk S. Ry. Co. , 224 W.Va. 13, 680 S.E.2d 28, 38 (2009) (citing Babbitt v. Norfolk & W. Ry. Co. , 104 F.3d 89 (6th Cir. 1997) ); see also Wicker , 142 F.3d at 700. For an employee agreeing to a voluntary end to his or her employment, the Babbitt Court employed a bright-line rule stating that a release is only valid when it reflects "a bargained-for settlement of a known claim for a specific injury ...." Babbitt , 104 F.3d at 93. Some courts have noted the material factual difference between the application of the Babbitt and Wicker tests. See Wicker , 142 F.3d at 700 ; Ratliff , 680 S.E.2d at 38.

      Similarly, in Illinois Central Railroad Co. v. McDaniel , 951 So.2d 523, 525 (Miss. 2006), Illinois Central filed a motion to enforce the settlement agreement. The Court reviewed the trial court's findings under an abuse-of-discretion standard of review. Id. at 526.

      Boilerplate refers to a standard form contract containing generic language. Wallace v. United Miss. Bank , 726 So.2d 578, 587 (Miss. 1998).


author: GRIFFIS, JUSTICE, FOR THE COURT:

text:
    Larry KNIGHT v. STATE of Mississippi
    NO. 2018-KA-00656-SCT
    Supreme Court of Mississippi.
    May 30, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson, PHILLIP W. BROADHEAD, Oxford
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, Jackson
    BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
   GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Larry Knight was convicted of one count of molestation and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Knight appealed, and his attorneys filed a brief under Lindsey v. State , 939 So.2d 743 (Miss. 2005). In the brief, Knight's attorneys state that they searched the record but were unable to find any arguable issues for appellate review. Knight was given the opportunity to file a pro se brief, but he declined. This Court has reviewed the record and finds no error. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Knight, a Mississippi native, lived in Illinois for several years. While in Illinois, Knight began an online relationship with Lisa Cartlidge. Knight eventually moved to Sharkey County, Mississippi, in order to pursue his relationship with Lisa. Lisa and her two minor children, Mary and Betsy, moved in with Knight.

¶3. On Sunday, August 7, 2016, Mary and Betsy spent the day with their maternal relatives because Lisa and Knight had to work. Betsy attended church with her aunts and cousins. Mary was not feeling well, so she stayed at her grandmother's house. After church, Mary and Betsy, along with other family members, went to their aunt's house for lunch.

¶4. During lunch, one of Mary's aunts noticed that Mary was acting "out of the ordinary" and asked her what was wrong. Mary did not initially respond. When her aunt asked again what was wrong, Mary started to cry and advised that Knight had inappropriately touched her. Betsy, who was in the same room as Mary and overheard what Mary said about Knight, also advised that Knight had inappropriately touched her. The allegations regarding Mary and Knight were later reported to the Department of Child Protection Services (CPS).

¶5. On August 8, 2016, Jessie Williams, a social worker with CPS, received a report of abuse about Mary and Knight, but she received no report about Betsy. Williams interviewed Mary, who advised that Knight "had been touching her inappropriately by licking her breasts and touching her between her legs." Williams also spoke with Betsy, who said that she had not seen or witnessed anything between Mary and Knight. Betsy did not disclose any inappropriate touching by Knight.

¶6. Charlene Barnette, a forensic interviewer with the Mississippi Children's Advocacy Center, interviewed Mary on September 12, 2016. According to Barnette, Mary was "forthcoming" and "consistent" and "used a narrative practice and episodic memory in her details that she provided." During the interview, Mary used anatomical drawings and advised that Knight squeezed and licked her breasts and touched the outside of her genital area with his hand. Throughout her investigation, Barnette found no signs that Mary had been coached or manipulated to give certain answers. Upon completion of the interview, Barnette recommended that the police department and CPS continue their investigation of the abuse allegations. She further recommended that Mary have no contact with Knight and that Mary receive immediate therapy.

¶7. Jennifer Weaver, the clinical director for the Mississippi Children's Advocacy Center and forensic interviewer, separately interviewed Betsy on October 11, 2016. According to Weaver, Betsy was "very forthcoming with episodic details as well as sensory details about what happened to her and her sister" and "was consistent throughout the interview." Weaver presented Betsy with an anatomical drawing of a "little boy and a little girl age appropriate to the child." On the female diagram, Betsy circled the breast area and the vaginal area. On the male diagram, when asked what Knight used to touch her, Betsy circled the hand. When asked what Knight used to touch Mary, Betsy circled the penis. Additionally, Betsy stated that when Knight would put Mary on his lap, his penis would "pop up." Based on the interview, Weaver recommended that the police department and CPS continue their investigation. Like Barnette, Weaver recommended that Betsy have no contact with Knight and that she receive therapy.

¶8. Lieutenant Herbert Ceaser, an investigator with the Rolling Fork Police Department, interviewed Knight, who denied all allegations. Knight advised that he loved Mary and Betsy as if they were his own. Knight acknowledged that "[s]ometimes [Mary and Betsy] would come and sit on his lap" and he would ask them how their day was and "things of that nature." When asked why Mary and Betsy would make such allegations, Knight responded that Mary "probably was mad because she was caught at ... home with a 12-year old boy."

¶9. Knight was indicted on Count I, molestation of Mary, and Count II, molestation of Betsy. At trial, Williams, Barnette, and Weaver testified about their interviews with Mary and Betsy. Lieutenant Ceaser testified about his investigation of and interview with Knight.

¶10. Mary testified that Knight "touched [her] ... [i]nside [her] pants and in [her] bra, inside [her] bra" with his hand. Mary further testified that she told her mother about the touching, but her mother "said something about [how] she didn't see it," so Mary "just didn't say nothing else."

¶11. On cross-examination, Mary acknowledged that she later told her mother that Knight did not touch her but stated that she "thought that [her mother] was going to get mad." When asked why she told her mother that Knight did not touch her, Mary responded, "I told her, yes, he did touch me[,] but she didn't never believe me."

¶12. Betsy testified that Knight touched her "on [her] breast" with "[h]is hand." She explained that Knight touched her "[o]n top of [her] clothes." When asked why she did not disclose the touching to Williams, Betsy responded that she was "scared" that her mother would be "mad and whip" her.

¶13. Knight was found guilty of Count I, molestation of Mary, and not guilty of Count II, molestation of Betsy. Knight was sentenced to serve fifteen years in the custody of the MDOC. He was further ordered to pay a $ 3,000 fine, $ 104 in court costs, $ 280.50 in state assessments, and a $ 200 district attorney investigative fee. Knight then filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The motion was denied. Knight timely appealed to this Court.

DISCUSSION

¶14. In Lindsey , this Court implemented the following procedure for cases in which appellate counsel does not believe any arguable issues exist for appellate review:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ].
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding the arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issues or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on the merits and render a decision.

Lindsey , 939 So.2d at 748 (footnote omitted) (citations omitted).

¶15. Here, Knight's attorneys filed a brief in compliance with Rule 28 and stated that they had "diligently researched the factual basis, the procedural history, and made a legal analysis of the matters attending the trial of this criminal case," and that they had "scoured the record searching for any arguable issues that could be presented in good faith to the Court on behalf of [Knight] for appellate review," but that they had "found none." Their review included (a) the reason for Knight's arrest and the circumstances surrounding the arrest; (b) the entire trial transcript; (c) the clerk's papers filed with this Court; (d) all rulings of the trial court; (e) all exhibits, whether admitted into evidence or not; (f) all jury instructions; (g) any possible prosecutorial misconduct; (h) possible misapplication of the law in sentencing; (I) the indictment and all pleadings in the record; (j) all motions and rulings; (k) potential discovery violations; (l) exclusion by the trial court of an audio recording; (m) post-trial motions filed by defense counsel; and (n) any possible ineffective-assistance-of-counsel issues. Although Knight's attorneys did not specifically assert that they had considered "any possible violations of [Knight]'s right to counsel," the attorneys reviewed the entire trial transcript and all pleadings in the record. They concluded that there were no issues that they could, in good faith, present to this Court for appellate review.

¶16. Knight's attorneys sent a copy of the brief to Knight and informed him that, although they found no arguable issues in the record, he had the right to file a pro se brief. By order entered November 20, 2018, this Court granted Knight forty days to file a pro se appellant's brief. Knight failed to file a pro se brief within the forty days. On February 4, 2019, Knight moved for additional time to file a pro se brief. This Court granted Knight's motion on February 6, 2019, and allowed Knight forty days to file a pro se appellant's brief. Knight failed to file a pro se brief within the additional forty days granted by this Court.

¶17. This Court has independently reviewed the record and finds no arguable issues that require supplemental briefing or further review. Accordingly, we affirm the trial court's judgment.

¶18. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      For privacy purposes, we substitute fictitious names for the two minor children. Mary was born in 2004. Betsy was born in 2006.

      On March 19, 2019, Knight filed with this Court a copy of a pro se "petition to vacate illegal sentence and to quash indictment statutory violation and ineffective assistance of counsel" that he had filed in the trial court. In the pro se petition, Knight had asked the trial court to vacate his molestation charge and to quash the indictment.


author: RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

text:
    SMITH PETROLEUM, INC. f/k/a Mississippi Oil, Inc. v. LAMAR COUNTY SCHOOL DISTRICT
    NO. 2018-CA-00325-SCT
    Supreme Court of Mississippi.
    February 5, 2018
    ATTORNEYS FOR APPELLANT: SHIRLEY M. MOORE, LAUREL, CRAIG N. ORR
    ATTORNEYS FOR APPELLEE: WILLIAM A. WHITEHEAD, JR., RICHARD D. NORTON, HATTIESBURG
    BEFORE RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.
   RANDOLPH, CHIEF JUSTICE, FOR THE COURT:

¶1. The Lamar County School District denied a request by Smith Petroleum to erect and construct an LED advertising billboard on its Sixteenth Section leasehold located on Old Highway 11 in Hattiesburg, Mississippi. Smith Petroleum filed its Notice of Appeal and Bill of Exceptions in the Chancery Court of Lamar County. The chancellor affirmed the School District's denial of Smith Petroleum's request to erect and construct the LED billboard. Finding no error, we affirm the judgment of the chancery court.

FACTS AND PROCEDURAL HISTORY

¶2. The Lamar County Board of Education, N.B. Royals, and Kirk Frazier, as tenants in common, executed a Sixteenth Section Land Lease and Contract for a term of forty years for property located at 4041 Old Highway 11 in Hattiesburg, Mississippi. The lease contained the following provision:

SUBLEASING OR ASSIGNMENT OF LEASE
Lessee covenants and agrees not to sublease, assign, transfer, or convey by warranty deed, quitclaim deed, or any other conveying instrument the herein described leased property and the leasehold interest therein without the expressed prior consent of the Lessor. In the event the Lessee requests and the Lessor approves any subleasing, transfer, or assignment of this lease or any portion thereof, then the Lessor may, in its discretion, require all parties to the transaction to obtain new leases as to each individual interest.

After obtaining approval from the School District, Frazier and Royals assigned the property to Mississippi Oil, Inc., by quitclaim deed. Subsequently, Mississippi Oil merged with Smith Petroleum.

¶3. Smith Petroleum then entered into an exclusive agreement with Busby Outdoor, LLC, to erect and construct an advertising billboard depicted as an "LED Showcase Sign" on 2,945 square feet (0.07 acres) of the leased property. Under the agreement, Busby was to market advertising and to pay Smith Petroleum royalties for the forty-year term of the agreement. Busby was also granted exclusive rights to construct and erect future billboards on the property, "including necessary supporting structures, devices, illumination facilities and connections, service ladders and other appurtenances thereon." Busby was responsible for all power bills, internet, and insurance expenses, in addition to all maintenance of the physical structure, including the upkeep, painting, and illumination of the billboard.

¶4. Busby agreed to cover all initial costs of erecting and constructing the billboard, including all "permitting costs, materials, labor for construction, maintenance, shipping costs, attorney's fees, and any other associated construction costs." Although the parties agreed that Smith Petroleum would be the owner of the billboard, Smith Petroleum could only move the billboard and other improvements at the expiration of the forty-year lease.

¶5. Busby, on behalf of Smith Petroleum, sought a sign permit from the City of Hattiesburg. The members of the Hattiesburg Planning Commission voted to approve the permit.

¶6. During construction, the Lamar County School Board contacted Busby and asked that construction stop and that Busby attend the May 9, 2017, Board meeting, because the construction of the billboard needed to be addressed and approved by the Board. In addition to Busby, representatives of Lamar Outdoor and Headrick's Signs attended the meeting to discuss the installation of billboards along Old Highway 11. Before the May 9, 2017, meeting, Lamar Outdoor had sought the Board's approval for the placement of a sign across the street from Smith Petroleum's property. The Board denied that request. At the meeting, Headrick's Signs requested that the discussion be tabled to allow additional consideration for the use of billboards on Old Highway 11.

¶7. The billboard issue was addressed again at the June meeting. After learning that a written agreement existed between Smith Petroleum and Busby, the Board tabled the issue once again to allow time for Smith Petroleum to produce the agreement. At the August 14, 2017, meeting, the Board denied the request to construct the sign, citing drivers' safety and Smith Petroleum's failure to seek Board approval before seeking a permit from the City.

¶8. Smith Petroleum later filed its Notice of Appeal and Bill of Exceptions. After hearing arguments from the Board and Smith Petroleum, the chancellor affirmed:

The title of the agreement between Smith Petroleum and Busby is immaterial, rather the effect and substance of the agreement appears to be that of a lease agreement. A close look at the agreement reveals that it is, in fact, a conveyance of an interest in the leasehold by Smith Petroleum to Busby for a term of forty (40) years. Such a conveyance of the Sixteenth Section Leasehold interest requires board approval, as expressly set forth in the original lease agreement of January 6, 1992.
The Lamar County School Board was within it's authority by withholding consent, as it relates to the instrument of conveyance between Smith Petroleum and Busby. The Board clearly articulated reasons for which its consent was being withheld and that decision should not be disturbed.
STATEMENT OF THE ISSUES
I. Whether the chancery court erred in finding that Smith Petroleum's license agreement with Busby was a sublease that required Board approval.
II. Whether the Board waived its argument that Smith Petroleum's agreement with Busby was a sublease.
III. Whether the chancery court erred in finding that the Board's decision was not arbitrary or capricious and did not deprive Smith Petroleum of its constitutional rights of equal protection.

STANDARD OF REVIEW

¶9. "With regard to the facts of the case-both the evidentiary facts and the ultimate facts-our inquiry is limited to a determination of whether there be substantial credible evidence undergirding the School Board's findings." Merchant v. Bd. of Trs. of Pearl Mun. Separate Sch. Dist. , 492 So.2d 959, 962 (Miss. 1986). If this Court finds substantial credible evidence, we will accept those findings. Everett v. Bd. of Trs. of Meridian Mun. Separate Sch. Dist. , 492 So.2d 277, 283 (Miss. 1986). This Court will only intervene when "a school board has acted in a manner which is arbitrary and capricious and where its actions are not supported by substantial evidence ...." Noxubee Cty. Bd. of Educ. v. Givens , 481 So.2d 816, 820 (Miss. 1985) (citing Madison Cty. Bd. of Educ. v. Miles , 252 Miss. 711, 173 So. 2d 425 (1965) ).

ANALYSIS

I. Whether the chancery court erred in finding that Smith Petroleum's license agreement with Busby was a sublease that required Board approval.

¶10. As provided by Mississippi Code Section 29-3-1, the Board holds Sixteenth Section lands in trust for the benefit of the public schools. As such, the Board, "shall have control and jurisdiction of said school trust lands and of all funds arising from any disposition ...." Miss. Code Ann. § 29-3-1(1) (Rev. 2010). The Board is required, "to manage the school trust lands and all funds arising therefrom as trust property." Id. The Board "shall assure that adequate compensation is received for all uses of the trust lands , except for uses by the public schools." Id. (emphasis added).

¶11. This Court must consider whether the erecting and constructing of an "LED Showcase Sign" and Busby's ultimate use of the described 2,945 square feet constitutes "use of the trust land." Smith Petroleum and Busby argue that they entered into a "license agreement." The Board replies that the agreement is a renamed, repackaged sublease that requires prior approval from the Board.

¶12. The agreement at issue is titled "Exclusive Agreement to License." While Smith Petroleum and Busby argue that this document was a license agreement, language within the document belies their assertion. The term was described as a forty-year lease . Furthermore, Busby was granted the exclusive right to market, sell, and rent advertising space on billboards and to collect all revenue generated. Busby would only advertise for Smith Petroleum in the event space was available, and Smith Petroleum was to receive royalty payments. Busby also was tasked with maintaining the property and obtaining insurance. Busby was granted the right to pledge, assign, mortgage, or encumber the agreement in order to secure financing. Finally, the agreement was subject to transfer by attachment, execution, proceedings in insolvency or bankruptcy, or receivership.

¶13. The law on licenses and leases in Mississippi is limited. One Mississippi case has provided that the distinction between a lease of land and a license is that

a lease conveys an interest in land, requires a writing to comply with the statute of frauds, and transfers possession, while a license merely excuses acts done by one on the land possession of another that without the license would be a trespass, and conveys no interest in the land[.]

Hotel Markham v. Patterson , 202 Miss. 451, 32 So. 2d 255, 256 (1947) (quoting Baseball Publ'g Co. v. Bruton , 302 Mass. 54, 55, 18 N.E.2d 362, 363 (1938) ). The Hotel Markham Court went on to state that

a license is defined to be an authority to do some act or a series of acts on the land of another without passing an estate in the land. It amounts to nothing more than an excuse for the act, which would otherwise be a trespass. A leasehold is an interest in real property; it carries a present interest and estate in the land and the main criterion is the right of possession of land.

Id. at 256. A treatise on landlords and tenants also provides

[T]he distinction between a lease and a license is the right of the possession of the land. If a contract confers exclusive possession of the premises or a portion thereof as against the whole world, including the owner, it is a lease. If it merely confers a privilege or permission to use or occupy under the owner, it is a license.

52 C.J.S. Landlord & Tenant § 340, Westlaw (database updated Mar. 2019) (citations omitted).

¶14. One primary criterion used to distinguish a lease from a license is the "right of possession of the land." The agreement between Smith Petroleum and Busby is an agreement to erect and construct a permanent structure on Sixteenth Section land. Busby was granted exclusive access and control of that billboard to the exclusion of Smith Petroleum, which cannot remove that physical structure until the expiration of the forty-year term. This agreement attempted to give Busby an undivided interest in the specifically described Sixteenth Section land without prior approval from the Board. We find that the trial court did not err in finding that the instrument was a sublease, which required Board approval.

II. Whether the Board waived its argument that Smith Petroleum's agreement with Busby was a sublease.

¶15. Smith Petroleum contends that the Board waived arguing that the agreement was a sublease. The Board argues that it maintained from the beginning, when it first contacted Busby and asked that construction cease, that the agreement was a sublease. It requested that Smith Petroleum and Busby attend the Board's meeting. Even after receiving the agreement, the Board still maintained the conveyance was a sublease based on the contents of the document. We find that the Board did not waive its argument that the agreement was a sublease.

III. Whether the chancery court erred in finding that the Board's decision was not arbitrary or capricious and did not deprive Smith Petroleum of its constitutional rights of equal protection.

¶16. The minutes of the August 14, 2017, meeting reflect that the Board reasonably exercised its statutory authority to manage its Sixteenth Section property. The Board discussed safety concerns, prior decisions denying requests to for similar signs, the glare of an LED sign, and the close proximity to the roadway. By a unanimous vote, the Board agreed to deny Smith Petroleum's request.

¶17. The Board did not act in an arbitrary or capricious manner. The Board expressed concerns with safety, including the glare emitted by LED billboard, the proximity to the road traveled by students, and the condition of the road (the curve) where the billboard would be constructed. Smith Petroleum and Busby were not treated any differently than others who had requested permission to construct LED billboards. The Board's decision was consistent with its previous denials of such requests from Lamar Outdoor and Headrick's Signs. Smith Petroleum's claim that the Board acted arbitrarily and capriciously and that its decision deprived Smith Petroleum of its constitutional rights is without merit.

CONCLUSION

¶18. The agreement between Smith Petroleum and Busby was a sublease that required prior approval of the Board. Once approval was sought, the Board did not act arbitrarily or capriciously in denying the request to construct an LED billboard on Sixteenth Section land. The learned chancellor did not err in affirming the findings of the Board, which were supported by substantial evidence. We affirm the judgment of the chancery court.

¶19. AFFIRMED.

KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.

      The agreement stated the following:
      2. Term. The term of this Lease shall commence upon the erection of the LED structures, and shall be for an initial period of forty (40) years "Term." This Agreement may be renewed by mutual agreement and further negotiation of the parties year to year after the expiration of the initial term.
      (Emphasis added.)


author: WESTBROOKS, J., FOR THE COURT:

text:
    Bettina GRANDBERRY, Appellant v. RIH ACQUISITIONS MS II, LLC d/b/a Bally's Casino, Appellee
    NO. 2017-CP-00258-COA
    Court of Appeals of Mississippi.
    June 5, 2018 Rehearing Denied September 18, 2019
    ATTORNEY FOR APPELLANT: BETTINA GRANDBERRY (PRO SE)
    ATTORNEY FOR APPELLEE: RICHARD D. UNDERWOOD
    BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Bettina Grandberry alleged she was injured by an unknown object and assailant in Bally's Casino in Tunica, Mississippi. Grandberry brought a negligence action under the theory of premises liability against RIH Acquisitions MS II, LLC d/b/a Bally's Casino. The Tunica County Circuit Court granted Bally's motion for summary judgment. Grandberry appeals. Finding no error, we affirm.

FACTS

¶ 2. On November 3, 2012, Grandberry and her sister, Charlene Lyon, went to Bally's Casino in Tunica, Mississippi. After visiting the buffet, the sisters sat down at a table to eat. Before getting a chance to begin their meals, the lights in the casino went out due to a third-party car accident outside of the casino. Grandberry claims there were two power outages within a five minute period. The first outage being forty-five seconds in duration and the second lasted for a period of three to five minutes. It is during the second outage that Grandberry asserts that she was hit in the back of the head with an unknown object by an unknown person. Immediately after the lights resumed, Grandberry was transported to Baptist DeSoto Hospital where she was treated for her injuries.

¶ 3. In October 2015, Grandberry brought an action against Bally's for negligence under the theory of premises liability in response to her injuries. Grandberry appeared pro se. In November 2015, the circuit court set a deadline for discovery of 120 days after service of an answer. Bally's filed its answer on November 19, 2015, setting the deadline at March 19, 2016. Bally's deposed Grandberry on March 22, 2016, after re-noticing the original deposition set for March 1, 2016. After responding to discovery, on April 18, 2016, Bally's filed a motion for summary judgment. In January 2017, the circuit court granted Bally's motion. Grandberry timely appeals.

STANDARD OF REVIEW

¶ 4. In regard to summary judgment, this Court has previously held,

In considering a trial court's grant of a motion for summary judgment, this Court conducts a de novo review and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that the movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to a judgment as a matter of law. The supreme court further stated that the movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where he would bear the burden of proof at trial.

Jones v. Dragway Enterprises, Inc. , 203 So.3d 1157, 1160 (¶ 10) (Miss. Ct. App. 2016) (citing Dickinson v. Vanderburg , 141 So.3d 455, 457 (¶ 4) (Miss. Ct. App. 2014) ).

DISCUSSION

¶ 5. Grandberry argues that the circuit court erred in granting Bally's motion for summary judgment. We disagree.

Mississippi courts conduct an analysis of three factors to ascertain whether a property owner is liable to an injured party in a premises-liability case: (1) the injured party's classification as an invitee, licensee, or trespasser at the time he or she was injured; (2) the duty owed by the defendant to the injured party; and (3) whether the defendant breached that duty.

IOC-Lula, Inc. v. Smartt , 198 So.3d 455, 459 (¶ 11) (Miss. Ct. App. 2016) (internal quotation mark omitted).

¶ 6. In the present case, the parties have stipulated to Grandberry being an invitee of Bally's. However, Grandberry has not established Bally's breach of its duty owed to her. Bally's duty was "to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view." Id. at 459 (¶ 12). Moreover, "Mississippi law further requires that, when a dangerous condition exists that was created by someone not associated with the business, the plaintiff must produce evidence that the owner or operator had actual or constructive knowledge of the dangerous condition as well as a sufficient opportunity to correct it." Jones , 203 So.3d at 1159 (¶ 10).

¶ 7. In the present case, the lights powering down was the result of a third party, not within the control of Bally's or a Bally's employee. It was Grandberry who had the burden to prove that Bally's had actual or constructive knowledge of a dangerous condition. She did not meet that burden. At the hearing for summary judgment, in support of her claims, Grandberry stated that (1) her deposition was taken in violation of the discovery deadline, (2) the court should have compelled Bally's to complete her written discovery requests that were propounded after the discovery deadline, and (3) the court should allow her further discovery of Bally's emergency power source.

¶ 8. In response, the court stated that Grandberry's claims were waived as she voluntarily gave her deposition after the deadline and Bally's was within its rights to deny answering written discovery requests after the deadline. Furthermore, Grandberry did not produce any evidence or affidavits in support of her claims. Therefore, Grandberry did not meet her burden to prove there was a dangerous condition or that Bally's had actual or constructive notice of a dangerous condition.

CONCLUSION

¶ 9. This Court finds no error in the circuit court's determination to grant Bally's motion for summary judgment.

¶ 10. AFFIRMED.

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

      Prior to the hearing for summary judgment, the initial forty-five-second power outage was the only outage mentioned in the facts by either party. At the hearing, for the first time, Grandberry mentioned the second power outage and stated her injuries occurred then.


author: BARNES, J., FOR THE COURT:

text:
    Tony L. SMITH and Linda N. Smith, Appellants v. COLDWELL BANKER GRAHAM & ASSOCIATES, INC., Cindy Lai, Mark S. Bounds Realty Partners, Inc., Donald Conn, Jr. and Wayne C. Williams, Appellees
    NO. 2016-CA-01082-COA
    Court of Appeals of Mississippi.
    AFFIRMED: September 11, 2018 Rehearing Denied February 12, 2019
    ATTORNEY FOR APPELLANTS: DONALD W. BOYKIN, Jackson
    ATTORNEYS FOR APPELLEES: LEE ANN C. THIGPEN, JOE S. DEATON III, TROY FARRELL ODOM, Jackson, RICHARD JASON CANTERBURY, Flowood, JIM WARREN III, CLIFTON MICHAEL DECKER, Jackson, MICHAEL CHAD MOORE, Flowood
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. On November 9, 2003, Tony and Linda Smith entered into a real estate contract (Contract) with John Hendon for the purchase of a home in Rankin County, Mississippi. The Smiths were represented by Cindy Smith and Century 21 Maselle &

Associates (Century 21). Coldwell Banker Graham & Associates Inc. (Coldwell Banker) and Cindy Lai represented the seller, Hendon.

¶ 2. On January 14, 2005, the Smiths filed a First Amended Complaint in Hinds County Circuit Court, First Judicial District, against Hendon, Union Planters Bank NA (Union Planters), First American Real Estate Solutions of Texas L.P., Successor in Interest to First American Flood Data Services Inc. (First American), Century 21, Cindy Smith, Coldwell Banker, Lai, Mark S. Bounds Realty Partners Inc. (Bounds), Donald Conn Jr., and Wayne C. Williams. As the home had flooded a few months after its purchase, the complaint alleged negligence and/or fraudulent inducement on the part of the named defendants surrounding the issue of whether the property was located within a flood zone.

¶ 3. Conn, who conducted the property's appraisal, filed interrogatories and a request for production of documents on February 23, 2005. More than three years later, after the Smiths failed to respond, Conn filed a motion to compel discovery on September 12, 2008. The Smiths assured Conn they would immediately produce the discovery responses; so he took the hearing off the court's docket. But the Smiths again failed to respond to the discovery requests, and Conn filed a second motion to compel discovery on March 3, 2009.

¶ 4. In the meantime, Bounds and Williams, who were also involved with the property's appraisal, filed a motion to compel the depositions of the Smiths on February 25, 2009. The motion asserted that although depositions had been scheduled and noticed on prior occasions, the Smiths "unilaterally cancelled these depositions in order to conduct further discovery on the defendants" and had not "responded to movant Defendants' various recent requests to proposed dates for [their] depositions." Bounds and Williams followed with a motion to compel discovery responses on June 11. On June 30, 2009, the trial court granted the motions of Conn, Bounds, and Williams. The Smiths reached an agreement with the defendants to produce the documents, however, and no formal hearing was held. Depositions of the Smiths were taken on August 17-18, 2009, with counsel for Coldwell Banker, Lai, Conn, Bounds, Williams, and Hendon present.

¶ 5. After Coldwell Banker and Lai filed a motion for summary judgment on September 14, 2010, the Smiths filed a motion to set trial on September 17 and a response to the summary-judgment motion on October 21. Conn filed a summary-judgment motion on January 11, 2011; Bounds and Williams followed with a motion for summary judgment on February 8, 2011. On July 26, 2012, the circuit court denied all three summary-judgment motions.

¶ 6. Eighteen months later, after no further action had been taken by the Smiths, Coldwell Banker, Lai, Bounds, Williams, and Conn all filed motions to dismiss for lack of prosecution in January 2014. The Smiths immediately responded with a motion to set trial on January 29, contending that any delay in setting a trial date "is no fault of the Plaintiffs" but, rather, due to their counsel's ongoing health issues. Coldwell Banker, Lai, Bounds, and Williams filed a notice of hearing a week later. However, the Smiths took no further action to set a trial; so on November 16, 2015, Coldwell Banker and Lai filed a motion to dismiss for lack of prosecution, with Bounds and Williams filing a joinder to the motion on December 11. The motion noted that it had been almost eleven years since the Smiths had filed their initial complaint and that the Smiths "have gone years at a time without taking any action in the case." The Smiths filed a response in opposition to the motion to dismiss on February 18, 2016.

¶ 7. On June 28, 2016, the circuit court granted the Appellees' motions to dismiss, noting there had been "no substantial activity in this matter for a period well exceeding 12 months." Finding no just cause for the delay, the court entered a Mississippi Rule of Civil Procedure 54(b) final judgment of dismissal "with prejudice as to all claims" except for those parties previously ordered to arbitration (Century 21 and Cindy Smith). On July 27, 2016, the Smiths filed a notice of appeal of the court's dismissal of the action, as well as a motion for clarification of the judgment of dismissal and to set trial.

¶ 8. On appeal, we find no abuse of discretion in the circuit court's findings, and we affirm the judgment.

ANALYSIS

¶ 9. Under Mississippi Rule of Civil Procedure 41(b), a defendant may move for dismissal of any action or claim against him "[f]or failure of the plaintiff to prosecute ...." M.R.C.P. 41(b). " Rule 41(b) embodies the tenet that 'any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to the orderly expedition of justice and the court's control of its own docket.' "

Hillman v. Weatherly , 14 So.3d 721, 726 (¶ 17) (Miss. 2009) (internal quotation marks omitted). "What constitutes failure to prosecute is considered on a case-by-case basis." Id.

¶ 10. When reviewing a circuit court's dismissal for failure to prosecute under Rule 41(b), we employ an abuse-of-discretion standard. Holmes v. Grisby , 234 So.3d 425, 427-28 (¶ 8) (Miss. Ct. App. 2017) (citing Holder v. Orange Grove Med. Specialties P.A. , 54 So.3d 192, 196 (¶ 16) (Miss. 2010) ). "Because the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly." Id. at 428 (¶ 8) (quoting Holder , 54 So.3d at 196 (¶ 14) ). "[D]ismissal for failure to comply with an order of the trial court is appropriate only where there is a clear record of delay or contumacious conduct and lesser sanctions would not serve the best interests of justice." Collins v. Koppers Inc. , 59 So.3d 582, 589 (¶ 19) (Miss. 2011) (quoting Wallace v. Jones , 572 So.2d 371, 376 (Miss. 1990) ). The trial court may also "consider aggravating factors or actual prejudice to the defendant, and the presence of the factors or prejudice, though not necessary, may strengthen a case for dismissal." State ex rel. Hood v. Louisville Tire Ctr. Inc. , 204 So.3d 1250, 1254 (¶ 9) (Miss. 2016) (citing Holder , 54 So.3d at 197 (¶ 18) ). The Smiths contend that the circuit court's dismissal for lack of prosecution was an abuse of discretion as they were not responsible for the delay and nothing in the record proves any prejudice to the Appellees.

¶ 11. We find the record shows that from 2005 to 2009, the Smiths were dilatory in responding to the Appellees' discovery requests. The Smiths were served with several interrogatories and requests for production of documents by the various defendants in 2005 but failed to respond for over three years, requiring the defendants to file motions to compel discovery in 2008. "[A] record of delay may be established by a plaintiff's failure to timely respond to discovery requests or a motion to dismiss or a plaintiff's significant delay in commencing discovery." Estate of Paulk v. Lott , 217 So.3d 747, 750 (¶ 8) (Miss. Ct. App. 2017) (citing Holder , 54 So.3d at 197 (¶ 19) ).

¶ 12. The Smiths argue they were not responsible for the delay in prosecution. They claim that a default judgment was entered against Hendon on March 24, 2005, who subsequently filed a suggestion of bankruptcy, and an automatic stay of that proceeding was instituted. This stay was allegedly lifted on September 16, 2010. Therefore, because Hendon filed for bankruptcy, the Smiths had to wait for the automatic stay to be lifted. However, there are no documents regarding the bankruptcy in our record. Counsel for the Smiths only referenced Hendon's bankruptcy during the hearing on the motion to clarify the judgment. Additionally, as we have already noted, from 2005 to 2007, there was also ongoing litigation regarding the arbitration clause in the Contract, which resulted in the supreme court ordering arbitration proceedings between the Smiths and Century 21 and Cindy Smith.

¶ 13. Regardless, these issues of the bankruptcy/automatic stay and the litigation over the arbitration clause in the Contract do not explain why the Smiths have made no effort to prosecute their claims against the other defendants since 2010. As Bounds and Williams assert in their brief, the Smiths' filing of the motion to set a trial on January 29, 2014, was "purely reactionary and done only after Coldwell Banker and Lai filed a [m]otion to [d]ismiss for lack of prosecution." Our Court has held: " '[T]he fact that a plaintiff's sole activity was reactionary'-i.e., in response to a motion to dismiss-also 'supports a finding of a clear record of delay.' " Paulk , 217 So.3d at 750 (¶ 8) (quoting Hillman v. Weatherly , 14 So.3d 721, 727 (¶ 21) (Miss. 2009) ).

¶ 14. As to any prejudice toward the defendants, there was an approximate four-year delay between the Smiths' motion to set trial in 2010 and the Appellees' motions to dismiss for lack of prosecution in 2014. There was also an eighteen-month delay between the Appellees' 2014 motions to dismiss and their subsequent motions to dismiss in 2015. Even after the Appellees filed the third motion to dismiss, the Smiths took three months to respond. In Holder , the supreme court found that a less-than-two-year delay resulted in presumed prejudice to the defendant, and that delay alone supported the trial court's decision to dismiss with prejudice. Holder , 54 So.3d at 201 (¶ 34) ; see also Regan v. S. Cent. Reg'l. Med. Ctr. , 234 So.3d 1242, 1246 (¶¶ 13, 17) (Miss. 2017) (finding no abuse of discretion in trial court's determination that plaintiff's "three separate significant periods of inactivity from 2010 to 2015," with each period lasting "more than a year ... evidenced a clear record of delay"). Therefore, we find the record sufficiently shows a clear record of delay by the Smiths, and the Appellees were prejudiced by their dilatory conduct.

¶ 15. The Smiths also contend that the circuit court should have considered lesser sanctions. While the record does not indicate whether the circuit court ever considered lesser sanctions, the supreme court has held that "this fact alone does not require reversal." Collins , 59 So.3d at 590 (¶ 22). "Although this Court has stated that it is 'less likely' to affirm a Rule 41(b) dismissal if the record does not reflect that the [circuit] court considered lesser sanctions, it is clear that the ultimate decision lies with this Court." Id. As discussed, the Smiths failed to respond to requests for interrogatories and discovery for over three years, prompting some Appellees to file motions to compel. Furthermore, after no action was taken by the Smiths from 2010 to 2014, the Appellees were forced to file three separate motions to dismiss, with an eighteen-month delay between the filings of the 2014 and 2015 motions and with practically no response from the Smiths, except a submission of a motion for a trial in reaction to the filings. In this instance, we find lesser sanctions would not have served the best interests of justice.

¶ 16. Accordingly, we cannot find that the circuit court abused its discretion in dismissing the action with prejudice, and we affirm the judgment.

¶ 17. AFFIRMED.

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

      The initial complaint was filed in November 2004, but it was not included in the record. There is no indication in the record that Hendon, Union Planters, or First American filed any briefs related to this matter, and they are not parties to the appeal.
      Century 21 and Cindy Smith are also not parties to this appeal as their claims were ordered to arbitration by the Mississippi Supreme Court in Century 21 Maselle & Assoc. Inc. v. Smith , 965 So.2d 1031, 1039 (¶ 14) (Miss. 2007).

      Coldwell Banker and Lai assert in their brief that they filed a prior motion to dismiss for failure to prosecute on September 13, 2010. This motion is not contained in the record; therefore, the Appellees' attempt to include it by attaching it as a "record excerpt" is improper. See M.R.A.P. 10(e) (outlining the procedure for the supplementation of the record on appeal). The trial docket, however, does reflect that Coldwell Banker and Lai filed a "motion to dismiss" on September 13, 2010, which does support their assertion. Furthermore, the record contains Conn, Bounds, and Williams's joinders in Coldwell Banker's and Lai's "motion to dismiss for failure to prosecute." Accordingly, while we cannot consider the document attached as a purported "record excerpt," we take notice of the docket and the joinder motions.

      There is no transcript of a hearing on the motions to dismiss contained in the record.

      As the Smiths' motion to clarify was not filed within ten days of the judgment, it is not a Rule 59 motion, which would stay the appeal. See M.R.C.P. 59(e). "The time for appeal begins to run only after the entry of the order disposing of the last post-trial motion, if the motion is filed no later than 10 days after the entry of the judgment ." Brand v. Barr , 980 So.2d 962, 965 (¶ 9) (Miss. Ct. App. 2008) (citing M.R.A.P. 4(d) ).
      A hearing on the motion to clarify was held on December 5, 2016. The Smiths argued that because Hendon had not filed any pleadings, he should not be included in the judgment of dismissal, and a trial should be set. The Smiths now assert on appeal that because Hendon failed to file a brief, the judgment of dismissal "should be reversed and remanded, if in fact, the judgment appl[ies] to him." As this issue was not presented to the circuit court before the notice of appeal was filed, we find this issue is not properly preserved for our review.
      The Smiths additionally filed a motion requesting the Appellees be required to pay additional costs for preparation of the trial record. Prompted by a request from the Mississippi Supreme Court for clarification of who was to pay costs, the circuit court entered an order, denying the Smiths' motion requesting payment of costs on January 17, 2017.