author: CHAMBERLIN, JUSTICE, FOR THE COURT:

text:
    David Neil HARRIS, Sr., Vecie Michele Harris, and Clyde H. Gunn, III v. STATE of Mississippi, Secretary of State, Jackson County, Mississippi, City of Ocean Springs, Mississippi and Delbert Hosemann, Jr.
    Clyde H. Gunn, III v. The State of Mississippi, C. Delbert Hosemann, Jr., in His Official Capacity as Secretary of State and as Trustee of the Public Tidelands Trust, Jackson County, Mississippi and City of Ocean Springs, Mississippi
    NO. 2016-CA-01057-SCT CONSOLIDATED WITH NO. 2016-CA-01116-SCT
    Supreme Court of Mississippi.
    November 8, 2018
    ATTORNEYS FOR APPELLANTS: DAVID N. HARRIS, JR., GULFPORT, A. SCOTT CUMBEST, JOHN G. CORLEW
    ATTORNEYS FOR APPELLEES: JOSEPH ANTHONY SCLAFANI, W. TREY JONES, HUGH D. KEATING, JE'NELL B. BLUM, GULFPORT, LEE D. THAMES, JR., JACKSON, DAVID CRANE, ROBERT W. WILKINSON, PASCAGOULA
    BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Landowners David Neil Harris, Sr., Vecie Michelle Harris ("Harris") and Clyde H. Gunn III filed suits to confirm title to their waterfront properties in Ocean Springs, Mississippi. The State of Mississippi (the "State"), the County of Jackson (the "County") and the City of Ocean Springs (the "City") asserted title to a portion of the same waterfront properties claimed by the landowners: a strip of sand beach located south of a road and a seawall. After a full trial on the merits, the chancellor found that the State of Mississippi held title to the sand beach in front of the Harris and Gunn properties as public-trust tidelands. The landowners now appeal. After review, we find no error and affirm the chancellor's final judgments.

FACTS AND PROCEDURAL HISTORY

¶ 2. Harris and Gunn both own beachfront property along "East Beach" in Ocean Springs, Mississippi. Hosemann v. Harris , 163 So.3d 263, 265 (Miss. 2015). "Starting from the Mississippi Sound going north, there is marsh grass, a sand beach, a seawall, a road, and the yards of the Gunn and Harris properties." Id.

¶ 3. Harris and Gunn previously filed for an injunction in Hinds County Chancery Court to prevent the City from constructing a sidewalk on the beach. Sec'y of State v. Gunn , 75 So.3d 1015, 1016 (Miss. 2011). As the parties represented that suits to confirm title had already been filed in the Jackson County Chancery Court, the Hinds County Chancery Court refrained from confirming title but did issue a permanent injunction preventing the City from constructing the sidewalk. Id. at 1016-17, 1019. On appeal, this Court vacated the permanent injunction and left the initial preliminary injunction in place until ownership of the beach could be determined. Id. at 1017.

¶ 4. Harris and Gunn then each proceeded to confirm title in the Jackson County actions. Harris , 163 So.3d at 266. Their suits were consolidated first for discovery and later for all purposes. Id.

¶ 5. Eventually, the chancellor granted Harris and Gunn partial summary judgment, finding that under the Public Trust Tidelands Act (the "Tidelands Act") the boundary of the tidelands was the mean high-water line closest in time to July 1, 1973. Id. The chancellor ruled "that the State had failed in its burden to produce admissible evidence showing the boundary was not this line." Id.

¶ 6. A trial was held on the County's and City's remaining adverse possession and prescriptive easement claims. Id. "The chancellor confirmed and quieted title to the sand beach in Gunn and Harris, subject to prescriptive easements for the County and City. The court held the State, County, and City failed to prove adverse possession or public prescriptive easement by clear and convincing evidence." Id. at 266-67. The chancellor did find that the County had an easement to maintain the sand beach for seawall protection and that the City had an easement for road maintenance. Id. at 267.

¶ 7. The State, County and City appealed the decision. Id. On appeal, this Court reversed the chancellor's grant of partial summary judgment to Harris and Gunn, reversed the remaining aspects of the chancellor's judgment and remanded the case for a full trial on the merits. Id. at 274.

¶ 8. On remand, a five-day trial was held. On June 3, 2016, the chancellor issued an opinion letter to counsel, detailing his findings of fact and conclusions of law. The chancellor also entered final judgments in both cases. The final judgments confirmed title to Harris and Gunn to their properties up to the southern edge or toe of the seawall, except for easements awarded to the County where the seawall was located and to the City where the roadway was located. The judgments also confirmed that the sand beach located south of the seawall was public-trust tidelands owned by the State. As to the injunction granted by the Hinds County Chancery Court, the judgments directed the parties to provide the Hinds County Chancery Court copies of the judgments to resolve the injunction. Last, the final judgments recognized that the County and City had met their burdens of proof on their claims of ownership to the sand beach through prescriptive easements and adverse possession. The judgments noted, though, that the County's and City's claims did not and could not defeat title held by the State.

¶ 9. Aggrieved, Harris and Gunn now appeal. Gunn raises two issues:

[I.] Whether the uncontradicted evidence demonstrates that the mean high waterline along the South Boundary of the Clyde H. Gunn, III property is located waterward of the seawall, waterward of the sand beach, waterward of the marsh grass and waterward of the water's edge and pursuant to the Public Trust Tideland Act of 1989, that line is the line of demarcation between public trust tidelands and private property and Mr. Gunn is entitled to confirmation of his title to the water's edge as described in the continuous chain of title to his property commencing with the conveyance of that property to Louis Arlan Caillavet by the United States of America by patent dated February 2, 1837.
[II.] Whether there is clear and convincing evidence to support claims of adverse possession and prescriptive easement made by Jackson County, Mississippi and the City of Ocean Springs to the beach front property of Plaintiffs/Appellants.

We address the tidelands issue first; it is dispositive of Gunn's appeal. Harris raises five errors all of which concern the chancellor's factual findings. For clarity, we combine a number of these alleged errors and address them second.

STANDARD OF REVIEW

¶ 10. "This Court will not reverse the chancellor's findings of fact 'unless they are manifestly wrong, not supported by substantial credible evidence, or an erroneous legal standard was applied.' " Bayview Land, Ltd. v. State ex rel. Clark , 950 So.2d 966, 971-72 (Miss. 2006) (quoting Columbia Land Dev., LLC v. Sec'y of State , 868 So.2d 1006, 1011 (Miss. 2004) ). "On the other hand, when we review questions of law, a de novo standard of review is applied." Id. at 972 (citing Tucker v. Prisock , 791 So.2d 190, 192 (Miss. 2001) ).

ANALYSIS

I. Tidelands Common Law and the Tidelands Act

¶ 11. The parties disagree on what law controls. Harris and Gunn argue that the boundary line drawn by the Secretary of State, pursuant to the Public Trust Tidelands Act, governs. It is undisputed that the Secretary of State drew this line seaward of East Beach in the waters of the Mississippi Sound. Harris and Gunn support their argument by citing their deeds, which describe their property as reaching "to the water's edge." The State, County and City respond that the line drawn by the Secretary of State is not determinative of the boundary of the tidelands. Instead, they argue that the line functions as a starting point to determine the boundary of the tidelands and does not control because they claim that the County constructed East Beach. Thus, the State, County and City argue that the artificial beach is tidelands, held in trust by the State. In order to resolve the controlling law, we begin our analysis with a brief summary of the body of law as it is relevant to this appeal.

A. A Brief Summary of Tidelands Law

¶ 12. "When admitted into the Union, the State of Mississippi was granted title to lands subject to the ebb and flow of the tide and up to the mean high water level, without regard to navigability." Harris , 163 So.3d at 268. The Mississippi Constitution provides that "[l]ands belonging to, or under the control of the State, shall never be donated directly or indirectly, to private corporations or individuals...." Miss. Const. art. 4, § 95.

¶ 13. Despite article 4, section 95, this Court, in Harrison County v. Guice , held that the upland landowner acquires fee simple title to additional lands created by filling tidelands where the landowner had no part in creating the additional land. Harrison Cty. v. Guice , 244 Miss. 95, 140 So.2d 838, 841-42 (1962), overruled by Miss. State Highway Comm'n v. Gilich , 609 So.2d 367 (Miss. 1992). The United States Court of Appeals for the Fifth Circuit declined to follow Guice , recognizing article 4, section 95 : "The common law doctrine of artificial accretion must yield to the command of the Mississippi Constitution as to the disposition of state owned lands." United States v. Harrison Cty., Miss. , 399 F.2d 485, 491 (5th Cir. 1968) (citing Miss. Const. art. 4, § 95 ).

¶ 14. In 1989, the Legislature passed the Public Trust Tidelands Act "to resolve the uncertainty and disputes ... as to the location of the boundary between the state's public trust tidelands and the upland property." Miss. Code Ann. § 29-15-3(2) (Rev. 2010). Also, the Legislature confirmed "the mean high water boundary line as determined by the Mississippi Supreme Court, the laws of this state and this chapter." Id. It further recognized that tidelands are held in trust for the public and that upland landowners have litoral and riparian common-law rights. Miss. Code Ann. § 29-15-5(1) (Rev. 2010).

¶ 15. The Tidelands Act required the Secretary of State to map the boundary of the public-trust tidelands. Miss. Code Ann. § 29-15-7(1) (Rev. 2010). In developed areas, the mapped boundary was to be "the determinable mean high water line nearest the effective date of the Coastal Wetlands Protection Act"-July 1, 1973. Id. Providing guidance for the mapping process, the Legislature, though, recognized the ambulatory nature of the boundary of tidelands, reaffirmed the doctrines of accretion and reliction and declared that "the common law doctrine as it pertains to such tidelands, submerged lands and riparian and littoral rights ... [is] the law of this state." Miss. Code Ann. § 29-15-7(2) (Rev. 2010).

¶ 16. Throughout the Tidelands Act, the Legislature provided a number of grievance processes for upland landowners. Miss. Code Ann. § 29-15-7(4) - (6) (Rev. 2010). The Tidelands Act required the Secretary of State to allow public comment on the preliminary map for sixty days. Miss. Code Ann. § 29-15-7(4). Also, the Secretary of State had to notice any landowners who were determined to be in violation of the final map, informing them that they had three years to submit a contrary claim. Id. Further, if the dispute could not be settled between the Secretary of State and the landowner, either party could petition the chancery court to resolve the disagreement. Miss. Code Ann. § 29-15-7(5). Last, these grievance processes were in addition to the right to quiet title, subject to a three-year statute of limitations. Miss. Code Ann. § 29-15-7(6).

¶ 17. Without mention of the Tidelands Act (and before the Secretary of State finalized the boundary map), this Court decided Mississippi State Highway Commission v. Gilich in 1992. Gilich , 609 So.2d at 372-375. The Gilich Court overruled Guice and held that unless the landowners could prove that a natural beach existed prior to the creation of an artificial beach in the tidelands, the artificial beach was still tidelands held in trust by the State. Id. at 374. The Court recognized that, "[o]nce held by the state in trust, properties are committed to the public purpose and may be alienated from the state only upon the authority of legislative enactment and then only consistent with the public purposes of the trust." Id.

¶ 18. Two years after Gilich (and still before the finalized boundary map), this Court held that the Tidelands Act was constitutional pursuant to a challenge from the Secretary of State. Wiesenberg , 633 So.2d at 989-94. This Court determined that the Tidelands Act did not result in an unconstitutional donation of trust land and that any incidental loss of trust land to an upward landowner was for the higher public purpose of determining the boundary of the tidelands. Id. at 991-992. In reaching this conclusion, the Wiesenberg Court noted the amount of discretion the Tidelands Act vested in the Secretary of State to consider "the common law of this State pertaining to tidelands, submerged lands, and riparian and littoral rights." Id. ; see also Stewart v. Hoover , 815 So.2d 1157, 1161-62 (Miss. 2002) (recognizing the common law's application to the Tidelands Act); Bayview , 950 So.2d at 981, 988 (same).

B. Hosemann v. Harris

¶ 19. With this law in mind, this Court remanded the dispute to the chancery court for a full trial on the merits. Harris , 163 So.3d at 274. The chancery court had granted partial summary judgment to Harris and Gunn, finding that the State had failed in its burden to produce admissible evidence that the boundary of the tidelands was not the mean high-water line closest in time to July 1, 1973. Id. at 266. After the partial grant of summary judgment, the case was tried and the chancery court held that the State, City and County had failed to prove their claim of title to the beach either by adverse possession or by prescriptive easement. Id. at 266-67. The chancery court quieted title in Harris and Gunn subject to the County's prescriptive easement for seawall maintenance and protection and the City's easement for road maintenance. Id.

¶ 20. In remanding, the Court noted that "the use of the 1973 starting point is subject to state common law regarding tidelands, submerged lands, and riparian and littoral lands." Id. at 273. The Harris Court reasoned,

It is undisputed that the mean high water mark closest to July 1, 1973, is seaward of the sand beach. However, this Court's holding in Gilich ... show[s] that the 1973 water line is not controlling with regard to sand beaches created by filling in tidelands. The State created genuine factual issues by producing evidence supporting the conclusion that East Beach was constructed by filling in tidelands.

Id. In essence, the Court applied common-law principles to the Tidelands Act and recognized that the property owners would not hold title to East Beach if the beach was artificial. Id. The Harris Court reversed the partial grant of summary judgment and "the remaining aspects of the chancellor's judgment as well." Id. at 274.

C. The Application of Tidelands Law to the Dispute

¶ 21. The Secretary of State's final boundary map reflects the intent of the Legislature by applying common-law principles to the boundary of the tidelands. It is determinative of the boundary of the tidelands. In December 1994, the Secretary of State finalized the Ocean Springs Quadrangle of the map. The map includes a solid line drawn along the coast, seaward of East Beach.

¶ 22. To be clear, the 1994 map is the culmination and expression of the Legislature's intent to determine the boundary of public-trust tidelands through the Tidelands Act. While the Tidelands Act required the July 1, 1973, determinable high-water line to be used as a starting point to determine the tidelands boundary, the 1994 map finalized the boundary of the tidelands. In other words, the 1994 map is the finalized expression of the boundary of the tidelands. The Secretary of State is bound to the map that he has drawn. Under the common law, the 1994 map is only the starting point now in the sense that the Court must determine what if any effect accretion and reliction has had on the boundary of tidelands subsequent to the 1994 map's finalization.

¶ 23. Here, though, the 1994 map's legend reflects Gilich 's holding that artificially created tidelands do not accrete to the upward landowner. The legend provides that the solid line "[d]enotes approximate location of mean high water in areas where the current location of said line (or the toe of the seawall in areas where beach renourishments has occurred) is the boundary of public trust lands." As this Court recognized in Wiesenberg , an "integral cog" of the Tidelands Act was "the amount of discretion which the Secretary of State was granted in finalizing the map." The map's legend is the result of this discretion-the Secretary of State's application of the common law to the boundary line of the tidelands. This Court has repeatedly held that the July 1, 1973 "starting point is subject to state common law regarding tidelands, submerged lands, and riparian and littoral lands." Harris , 163 So.3d at 273 (citing Wiesenberg , 633 So.2d at 986 ; Stewart , 815 So.2d at 1162 ). Likewise, the 1994 map is now the starting point subject to state common law regarding tidelands, submerged lands and riparian and littoral lands.

¶ 24. The chancellor understood the controlling tidelands law and limited his opinion to whether or not East Beach was a natural beach or a man-made beach. The chancellor wrote, "the first line of inquiry must be to ascertain whether the disputed strip of sand is natural or man made. The resolution of the natural versus man-made question will substantially control the outcome of this matter." We agree. The dispositive issue is whether or not East Beach was a natural beach or whether it was an artificial beach created along a shoreline without any prior natural beach. Given the legend on the 1994 map, East Beach is public-trust tidelands because the chancellor found that East Beach was artificial and that there had not been any natural beach along the prior shoreline.

II. Findings of Fact

¶ 25. At trial, the dispositive issue was whether or not East Beach was originally a natural beach or man-made beach. The chancellor determined that the beach was man-made. On appeal (after the resolution of Issue I), the question becomes whether the chancellor's judgment is manifestly wrong or unsupported by credible evidence. Harris raises several alleged errors on the part of the chancellor.

A. Confirmation of Title

¶ 26. Harris first argues that the chancellor manifestly erred by failing to confirm title. He contends that the chancellor failed to make "any specific findings regarding the location of the southern boundary of the Harris and Gunn property."

¶ 27. This argument-which the chancellor addressed in his denial of reconsideration-ignores the plain language of the chancellor's final orders. The chancellor's description confirmed the southern boundary of the Harris property:

... thence run South along the property formerly of Striegel a distance of 925 feet, more or less, to a concrete monument which monument is 120 feet West of the point of beginning, thence continue South 87 feet, more or less to the toe/south face of the current seawall, thence run East 120 feet along the toe/south face of the current seawall ....

The description also described an easement in favor of the County "where the current seawall is now located" and an easement in favor the City "where the current East Beach roadway is now located." Likewise, the chancellor described Gunn's southern boundary:

... run thence South along the West line of the property of Striegel and along a line parallel to and 222 feet East of the East line of said Ashley Place Subdivision a distance of 1,015 feet, more or less, to a point on the North face of the seawall, continue thence South to the tow of the seawall, run thence West along the toe of the seawall 222 feet, more or less, to a point South of the Point of Beginning.... Said property being bounded ... South by the toe of the seawall.

The Gunn description also awarded prescriptive easements in favor of the County "where the seawall is located" and a prescriptive easement to the City "where the East Beach roadway is located." Harris's argument that the chancellor erred by not confirming title is without merit.

B. Witness Testimony

¶ 28. Next, Harris raises a number of issues that he maintains are manifest error in the chancellor's assessment of witness testimony. "This Court will not reverse a Chancery Court's findings of fact where they are supported by substantial credible evidence in the record." Mullins v. Ratcliff , 515 So.2d 1183, 1189 (Miss. 1987). "Where 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.' " Sproles v. Sproles , 782 So.2d 742, 747 (Miss. 2001) (quoting McKee v. Flynt , 630 So.2d 44, 47 (Miss. 1993) ).

¶ 29. After review of the chancellor's judgments, opinion and the record, we find no error-and certainly no manifest error. Ample evidence in the record supports each of the chancellor's final judgments in this matter. Many of Harris's alleged errors on appeal are simply disagreements with the factual determinations made by the chancellor.

1. Eyewitnesses

¶ 30. Harris contends that the chancellor manifestly erred concerning two eyewitnesses: Joan Salvant and Larry Corban. Harris maintains that the chancellor erred in relying on Salvant's testimony, since she admitted that she was not familiar with the location of the boundary lines of the Harris and Gunn properties. Regarding Corban, Harris argues that the chancellor manifestly erred in finding that Harris and Gunn had not produced any eyewitnesses of the East Beach area during the relevant time frame. Harris contends that Corban provided eyewitness testimony about the East Beach area.

Joan Salvant

¶ 31. Salvant's recorded deposition testimony was entered at trial by the State. Salvant testified that she spent every summer in the 1930s, the 1940s and into the 1950s at her family's property on the shoreline that is now referred to as East Beach. Salvant explained that Week's Bayou was at the western end of the shoreline; her family's property was further east; and the Marine Research Lab area was the furthest east at the end of the shoreline. Further, Salvant testified with familiarity to the whole coastline and had personally observed both low and high tides along the coast.

¶ 32. Relevant to the Harris and Gunn properties, Salvant testified that prior to the late 1940s no dry sand-from Week's Bayou east to the Marine Research Lab-would have been left uncovered at high tide. On the east end of the shoreline, Salvant recalled that the water nearly came up to the road with just enough room for her father to pull two wheels of their family car off the road to park. Also, Salvant maintained that the current sand at the beach along the shoreline was pumped up from the sound after World War II. She maintained that this happened two different times during two different years. In 2004 for her fiftieth wedding anniversary, Salvant again visited East Beach. She observed East Beach from Week's Bayou to the Marine Research Lab. Salvant testified that the current East Beach was not there prior to the end of World War II.

¶ 33. Harris now argues that the chancellor erred in relying on Salvant's testimony because Salvant had admitted she did not know the locations of the Harris and Gunn properties. Also, Harris highlights the fact that Salvant did not know whether the sand that was pumped up from the sound was pumped up in front of the Harris or Gunn properties.

¶ 34. The chancellor, however, did not abuse his discretion by relying on Salvant's testimony. Salvant testified that no dry sand was present at high tide the length of the shoreline from Week's Bayou (undisputedly west of the Harris and Gunn properties) to the point of the shoreline where the Marine Research Lab was built (undisputedly east of the Harris and Gunn properties). She also testified that sand was pumped from the sound along this same section of shoreline.

¶ 35. Further, substantial evidence corroborated Salvant's testimony. Jane Beaugez, an Ocean Springs resident since the late 1940s, testified to the changes in the shoreline throughout the years. Beaugez was familiar with the location of the Harris and Gunn properties and testified that from her earliest memory no uncovered sand was visible at high tide in front of either property. She further testified that the high tide came up to the seawall before the beach was built and that government workers built the beach by pumping in and trucking in sand.

¶ 36. Expert testimony also corroborated Salvant's account of the shoreline. The State's expert, Dr. Claus Meyer-Arendt (discussed below) concluded that East Beach along the shoreline was artificial. He also concluded that the current seawall was placed seaward of the former mean high-tide line-in the tidelands.

¶ 37. Much of the material that Meyer-Arendt relied on to form his conclusions was entered into evidence and corroborates Salvant's testimony. This evidence included newspaper articles and various documents concerning the construction of East Beach and its seawall.

¶ 38. Also, a composite of newspaper clippings referencing the construction of the seawall and East Beach lent credence to Salvant's testimony. One article, dated August 4, 1949, states, "Plans call for a sea wall similar to the sea wall at West Beach. The county dredge will place sand up against the wall forming a nice bathing beach beyond the wall." Another article, dated May 26, 1951, states, "The Ocean Springs seawall will be extended approximately one-half mile from its present terminus to Halstead road, a sand beach pumped in along the length of the wall and a new 40-foot roadway constructed behind it."

¶ 39. Correspondence between the Jackson County Board of Supervisors and the United States Army Corp of Engineers also supports portions of Salvant's account. According to Meyer-Arendt, the Jackson County Board of Supervisors, in their request for permission to build a beach, attached a map depicting that "the beach would be built to a width of 200 feet along the entire length of the East Beach." The response letter from the United States Army Corp of Engineers, dated January 25, 1954, states, "you are hereby authorized by the Secretary of the Army to construct a sand beach 200 to 300 feet wide by 11,700 feet long, in [the] Mississippi Sound, fronting Ocean Springs, Mississippi."

¶ 40. Also supporting portions of Salvant's testimony, a number of the minutes from various meetings of the Jackson County Board of Supervisors concerning the construction of the seawall were admitted in evidence. The proposal for the seawall was presented at a July 19, 1949, meeting, and the specifications for the wall were explained to potential bidders in 1950.

¶ 41. In light of the evidence, the chancellor did not manifestly err in relying on Salvant's recollection. Despite the fact that Salvant was not familiar with the boundary line of the Harris and Gunn properties or the specific locations of the properties, she clearly testified about the entire length of the shoreline from Week's Bayou to the Marine Research Lab. Further, other evidence corroborates her account.

Larry Corban

¶ 42. Corban's testimony from a previous proceeding was introduced; he testified that he first saw the East Beach area in 1946 or 1947. Corban testified that as far as he could recall no substantial change in the waterfront on East Beach had occurred in his lifetime. Also, Corban testified that "It's my understanding that Jackson County built a seawall and road while I was in college, would have been in about 1950." Last, Corban testified that no substantial change had occurred to the properties from his first recollection in 1947 to the depiction of the properties in a 1992 aerial photograph.

¶ 43. Harris argues that the chancellor erred in finding that Harris and Gunn did not offer eyewitness testimony about the East Beach area. The actual issue here is that Harris does not agree with the chancellor's assessment of the weight and credibility of Corban's testimony. It is well settled law that "the chancellor, as the trier of fact, is the judge of 'the credibility of the witnesses and the weight of their testimony ....' " Sproles , 782 So.2d at 747 (quoting McKee , 630 So.2d at 47 ). Two out of three of Corban's answers on direct examination were not definite: "Not that I recall" and "It's my understanding ... while I was in college...." Corban admitted that he was in college during the critical time period in the early 1950s.

¶ 44. Also, it is clear that the chancellor did consider Corban's testimony. In the final opinion letter sent to counsel, the chancellor mentioned that he considered all of the contrary evidence in coming to his conclusions: "There is contrary evidence, as noted above and as otherwise reflected in the record, all of which the court has considered. However, when the evidence supporting the claim of a natural beach is weighed against that supporting a man made beach the former position is, at best, weak." We find no error.

2. Expert Testimony

¶ 45. Harris claims two specific errors concerning the expert testimony admitted at trial. First, Harris argues that the chancellor blatantly disregarded the testimony of Donald Rowe who testified about his survey of the current mean high-water line. Second, Harris argues that consideration of the full expert report of Meyer-Arendt demonstrates that the mean high-water line has always been in the same location (and, therefore, East Beach is a natural beach). Neither argument has merit.

Donald Rowe

¶ 46. At trial, Rowe testified to his survey of the current mean high-water line on February 22, 2012, for the Harris and Gunn properties. On that day, the mean high-water line for the Harris property ranged from 114 feet to 117 feet from the seawall. For the Gunn property, the range was from 137 feet to 145 feet from the seawall to the mean high-water line.

¶ 47. Rowe's testimony, though, was not relevant to the dispositive legal issue at trial of whether or not the beach was natural or man-made. The fact that the mean high-water line was seaward of the current East Beach was an uncontested issue at trial. The contested issue at trial was whether or not East Beach was natural (and not tidelands) or man-made (and, therefore, tidelands). Thus, the chancellor did not manifestly err here.

Dr. Claus Meyer-Arendt

¶ 48. Next, Harris argues that the chancellor erred by not considering Meyer-Arendt's testimony that his 1992 report concluded that a sand beach had existed along the shoreline in 1950. According to Harris, this fact, combined with Rowe's survey, demonstrates that East Beach was a natural beach.

¶ 49. Nothing in Meyer-Arendt's report, though, conflicts with the chancellor's conclusion that East Beach was man-made. Indeed, the 1992 report supports the position: "Apparently some sand was placed on East Beach prior to the onset of seawall construction in 1949 ..., the modern beach was not completed until a second phase of nourishment in 1954 ...." The report also states, "The 1950 coastal chart ... reflected the initial disposal of dredge spoil at both Front and East Beaches, where the shoreline had been displaced about 200 ft (60 m) seaward along most of Front Beach and about half of that along East Beach (see figure 2)." Also, as already mentioned, Salvant testified that sand was pumped in to create East Beach in two separate years. The chancellor did not manifestly err in his consideration of the expert report.

C. Invasion of Property Rights

¶ 50. Last, Harris argues that the chancellor manifestly erred by failing to acknowledge that any action by Jackson County in creating East Beach was an invasion of private property rights, constituting a taking without just compensation under the Fifth and Fourteenth Amendments. To support his argument, Harris again cites the testimony of Rowe and Meyer-Arendt, arguing that their testimony (discussed above) supports the claim that Jackson County pumped sand onto the Harris and Gunn properties.

¶ 51. Harris's argument requires this Court to accept his interpretation of the evidence rather than the chancellor's findings. Harris maintains that Jackson County violated his property rights by pumping in sand on the East Beach shoreline because the 1954 letter from the United States Army Corp of Engineers conveyed no property rights to the Jackson County Board of Supervisors. Harris ignores, though, the earlier statement in the letter that the Board of Supervisors was authorized to create a sand beach "in [the] Mississippi Sound." In denying reconsideration, the chancellor stated, "Thus, because the evidence establishes that [the] beach was constructed in State-owned tidelands, the construction of the beach did not invade the property rights of the Plaintiffs." After review, we find no error here.

CONCLUSION

¶ 52. The chancellor correctly determined that the question of whether or not East Beach was natural or artificial controlled the legal dispute as to the boundary of the tidelands. With this legal framework established, the chancellor determined that no natural beach existed on the shoreline prior to the construction of East Beach. Ample evidence in the record supports this determination. Therefore, we affirm the chancellor's final judgments.

¶ 53. AFFIRMED.

WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM AND ISHEE, JJ., CONCUR. RANDOLPH, P.J., NOT PARTICIPATING.

      After entry of final judgment in this matter, the Harrises sold their property and assigned their rights in this cause of action. For consistency with the record, we will continue to refer to the Harrises as the landowners.

      Subject to the common law, the Tidelands Act requires the boundary map of tidelands in developed areas to use the determinable mean high-water line nearest the effective date of the Coastal Wetlands Protection Act-July 1, 1973. Miss. Code Ann. § 29-15-7(1) -(2) (Rev. 2010).

      Harris filed a motion to reconsider that the chancellor denied.

      We refrain from addressing whether or not the County and City met their burden of proof on their adverse-possession and prescriptive-easement claims. As discussed in detail, the disputed beach is public-trust tidelands held in trust by the State. Neither the County nor the City argue that it can defeat title held by the State.

      This Court has surveyed this body of law in depth multiple times. See Sec'y of State v. Wiesenberg , 633 So.2d 983, 988-89 (Miss. 1994) ; Bayview , 950 So.2d at 972-77.

      As an unrelated aside, Joan Usner Salvant is a nationally recognized artist. Her paintings and drawings are found in the art collections of two United States Presidents (George H. W. Bush and Jimmy Carter), various United States Congressmen, a number of state governors and various first ladies. Her artwork is on display in the National Museum of Women in the Arts in Washington D.C. and at the University of Texas Visitors Center.

      As the chancellor noted in denying reconsideration,
      It is axiomatic to say the 'Plaintiffs' property' was not known to Mrs. Salvant, the Plaintiffs had no property and were likely not yet even born when Mrs. Salvant was making her observations of the area in question. Mrs. Salvant's observations, which she gave in detail, covered the entire area presently encompassed by the Gunn and Harris' properties.


source: Caselaw Access Project

author: ISHEE, JUSTICE, FOR THE COURT:

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    INLAND FAMILY PRACTICE CENTER, LLC, and Ikechukwu Okorie, M.D. v. Sallie M. AMERSON
    NO. 2017-IA-01174-SCT
    Supreme Court of Mississippi.
    November 8, 2018
    ATTORNEYS FOR APPELLANTS: CHARLES EDWARD COWAN, R. MARK HODGES, JACKSON
    ATTORNEY FOR APPELLEE: SALLIE M. AMERSON (PRO SE)
    BEFORE RANDOLPH, P.J., KING AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. Sallie Amerson sued Inland Family Clinic LLC and Dr. Ikechukwu Okorie over an allegedly defamatory statement Dr. Okorie made to another physician concerning Amerson's apparent use of illegal drugs. The Defendants moved for summary judgment, contending the statements were privileged, but the Forrest County Circuit Court denied the motion. Inland and Dr. Okorie petitioned this Court for interlocutory review, which we granted. After due consideration, we reverse the decision of the circuit court and render summary judgment in favor of Inland and Dr. Okorie.

FACTS AND PROCEDURAL HISTORY

¶ 2. Inland is a family clinic located in Hattiesburg, Mississippi, owned and operated by Dr. Okorie. Amerson was a patient of Dr. Okorie's from April 2011 to March 2013. Amerson suffers from a variety of ailments, including chronic back pain for which Dr. Okorie prescribed opioid (narcotic) pain medications. Since opioids are notoriously addictive and can readily be resold on the black market, Amerson was required to comply with Inland's "Pain Management Policy." The policy informed Amerson that if she were to violate its terms, Dr. Okorie "may stop prescribing [the] pain-control medications." Specifically, it was an express violation of the policy for Amerson to use "any illegal substances." She was required to submit to monthly drug screenings, performed by an outside lab, which tested for illegal or non-prescribed drugs. Amerson signed the policy.

¶ 3. In February 2013, Amerson tested positive for amphetamines and methadone-two drugs for which she had no prescription. Dr. Okorie then informed Amerson he would no longer prescribe her narcotics; Dr. Okorie's notes reflect that his decision was based on Amerson's "prior ... and present history of taking a non-prescribed narcotic." While Dr. Okorie offered to continue treating Amerson for her other ailments, he referred her to Dr. Joseph Farina for treatment of her chronic back pain.

¶ 4. Amerson visited Dr. Farina in March 2013, but Dr. Farina refused to prescribe narcotics after discovering that Amerson had already depleted her existing prescription, just sixteen days after it had been filled. That same day, Amerson returned to Dr. Okorie seeking narcotics, which Dr. Okorie again refused to prescribe. A week later, Amerson visited Dr. Jeffery Morris. Dr. Morris had treated Amerson for certain ailments dating back roughly to 2010. Dr. Morris informed Amerson he would need her medical records from Dr. Okorie before he could prescribe anything for her back pain.

¶ 5. While awaiting Dr. Morris's decision, Amerson again returned to Dr. Okorie. Amerson submitted to another drug screening, and she again tested positive for amphetamines and methadone. Dr. Okorie refused to prescribe Amerson narcotic medications a third time, and Amerson did not visit him again. Then, in early April 2013, Amerson was informed by Dr. Morris's office that he would not prescribe narcotic medications based on Dr. Okorie's statement to him that Amerson had tested positive for "amphetamines and methamphetamines." Dr. Morris conveyed the same to one of his nurses, Hope West, who recorded Dr. Morris's comments on a faxed copy of Amerson's lab results. West wrote that "Dr. Okorie stated he wasn't writing her narcotics due to being positive for amphetamines [and] methamphetamines" and "[patient] notified 4/11/13."

¶ 6. Apparently, Dr. Okorie was mistaken when he said Amerson tested positive for methamphetamines; the correct interpretation of Amerson's drug test report was that she had tested positive for methadone. Methamphetamines would not have shown up separately in the results as they fell under the "amphetamine" heading. Claiming that Dr. Okorie's statement to Dr. Morris was false and defamatory, Amerson filed her complaint in June 2013. The crux of her complaint alleged that Dr. Okorie had defamed her by telling others she had used illegal drugs, and, as a result, she suffered personal and economic injuries.

¶ 7. Ultimately, Inland and Dr. Okorie moved for summary judgment, arguing that Dr. Okorie's statement to Dr. Morris was protected by a qualified privilege. The circuit court found genuine issues of material fact remained as to the nature and content of the statement, and it denied summary judgment. Inland and Dr. Okorie petitioned this Court for interlocutory review, which we granted.

STANDARD OF REVIEW

¶ 8. Summary judgment is proper "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." M.R.C.P. 56(c). The moving party bears the initial burden of supporting the motion for summary judgment. Id. But once the motion is properly made and supported, the non-movant "may not rest upon the mere allegations or denials of [her] pleadings, but [her] response ... must set forth specific facts showing that there is a genuine issue for trial." Id. Thus, where the non-movant fails 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," summary judgment is proper. McGinty v. Grand Casinos of Miss., Inc. , 245 So.3d 444, 448 (Miss. 2018) (citations omitted).

¶ 9. We review the grant or denial of summary judgment de novo. Collins v. City of Newton , 240 So.3d 1211, 1215 (Miss. 2018). But the evidence must be viewed in the light most favorable to the nonmoving party. Id.

DISCUSSION

¶ 10. In finding that material questions of fact remained as to "the content and nature of the alleged [defamatory] statement," the circuit court held that Inland and Dr. Okorie failed to show they were entitled to summary judgment because they relied upon a document, Nurse West's note, that was inadmissible hearsay. We conclude that this impermissibly shifted the burden of production from Amerson to the Defendants and that any issue of fact as to the content of the statement was not material.

¶ 11. As we noted above, once the Defendants' motion for summary judgment was properly made and supported, Amerson could "not rest upon the mere allegations or denials of [her] pleadings, but [her] response ... must set forth specific facts showing that there is a genuine issue for trial." See M.R.C.P. 56(c). For the purposes of summary judgment, Inland and Dr. Okorie conceded Amerson's various allegations regarding the content of the communication from Dr. Okorie to Dr. Morris.

These allegations were laid out in the motion: Amerson said in her deposition that Dr. Okorie had told Dr. Morris she "had illegal drugs in her system"; she asserted in her interrogatory responses that Dr. Okorie had "told Dr. Morris I was on illegal drugs"; and she produced in discovery Nurse West's note about Amerson's drug-test results, detailing that Dr. Okorie had told Dr. Morris that "he wasn't writing [Amerson] narcotics due to being positive for amphetamines [and] methamphetamines."

¶ 12. As explained below, the motion for summary judgment showed that all of these statements, accepted as having been made, would still have been privileged. The motion thus made a prima facie showing that no genuine issue of material fact existed regarding the substance of the alleged statement from Dr. Okorie to Dr. Morris because, regardless of which iteration was accepted, the communication was still privileged. See M.R.C.P. 56(c). Put another way, whatever issues of fact remained as to the content of the statement were not material to the motion for summary judgment. See id. The Defendants' motion for summary judgment should have carried the initial burden of persuading the trial court that no genuine issue of material fact existed and that they were entitled to summary judgment. See Karpinsky v. Am. Nat'l Ins. Co. , 109 So.3d 84, 88 (Miss. 2013). The burden thus shifted to Amerson to "set forth specific facts showing that there is a genuine issue for trial." See M.R.C.P. 56(c).

¶ 13. Moreover, as this Court held in Karpinsky , summary judgment "movant[s] only bear[ ] the burden of production where they would bear the burden of proof at trial." Karpinsky , 109 So.3d at 89. It is axiomatic that Amerson, the plaintiff, would bear the burden of proving the content of the allegedly defamatory communication. See Armistead v. Minor , 815 So.2d 1189, 1193 (Miss. 2002). If the note were found to be inadmissible hearsay, it could only hurt Amerson because she, not the Defendants, had to prove what was said. But, again, the Defendants did not challenge the admissibility of the note. Instead, they contended that, even if it accurately reflected what was said, the communication would still be privileged.

¶ 14. Turning to the merits of the qualified-privilege defense, Inland and Dr. Okorie asserted that, even if the statement was made in any of the forms alleged, it was protected by a qualified privilege that Amerson had no evidence of malice to overcome. We agree. Under Mississippi law, an ordinary claim for defamation requires the plaintiff to prove:

(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Simmons Law Group, P.A. v. Corp. Mgmt. Inc. , 42 So.3d 511, 517 (Miss. 2010). If the statement is privileged, the second element cannot be met unless the privilege is overcome by a showing of malice, bad faith, or abuse. Eckman v. Cooper Tire & Rubber Co. , 893 So.2d 1049, 1052 (Miss. 2005). "Where [a] qualified privilege exists, a presumption of good faith arises." Barmada v. Pridjian , 989 So.2d 359, 365 (Miss. 2008) (citing Hayden v. Foryt , 407 So.2d 535 (Miss. 1981) ).

¶ 15. Amerson relies on a single communication from Dr. Okorie to Dr. Morris where Dr. Okorie alternatively "purposely accused [Amerson] of using illegal drugs," "told Dr. Morris [Amerson] was on illegal drugs," or told Dr. Morris that "he wasn't writing [Amerson] narcotics due to being positive for amphetamines [and] methamphetamines."

¶ 16. This Court has outlined the qualified privilege as

A communication made in good faith and on a subject matter in which the person making it has an interest, or in reference to which he has a duty, is privileged if made to a person or persons having a corresponding interest or duty, even though it contains matter which without this privilege would be slanderous, provided the statement is made without malice and in good faith.

Eckman , 893 So.2d at 1052 (quoting Smith v. White , 799 So.2d 83, 86 (Miss. 2001) ).

¶ 17. The qualified privilege operates as an affirmative defense to defamation. See Whitten v. Commercial Dispatch Pub. Co. , 487 So.2d 843, 844 (Miss. 1986) ; see also M.R.C.P. 8(c). On summary judgment, as at trial, the burden of proving that the qualified privilege attached to the communication falls on the parties asserting it as a defense, Inland and Dr. Okorie. See Jenkins v. Pensacola Health Trust, Inc. , 933 So.2d 923, 927 (Miss. 2006). That being said, the relevant circumstances surrounding the communication are not disputed.

¶ 18. First, the communication was made by Dr. Okorie regarding a subject matter in which he had an interest or in reference to which he had a duty-the treatment of his patient, Amerson, and any related narcotic prescriptions. Second, Dr. Okorie made the statement to Dr. Morris-a fellow physician from whom Amerson was also seeking narcotic prescriptions. Dr. Morris therefore had a corresponding interest or duty in the medical treatment of Amerson. Finally, nothing in the record evidences a lack of good faith by Dr. Okorie in his statement to Dr. Morris.

¶ 19. A review of our prior decisions demonstrates that this application of the qualified privilege to physician-to-physician statements is not unusual. For example, in Hayden , this Court addressed an allegedly defamatory statement of a supervising physician regarding the competence of a subordinate physician. The supervising physician discussed the issue with administrators and also at a surgical staff meeting "attended by all members of the hospital medical surgical staff, except for one physician on leave." Hayden , 407 So.2d at 537. We concluded that "the persons present in those meetings were directly interested in the matter." Id. at 538. And because no evidence of malice was produced, we held that "the qualified privilege prevailed." Id.

¶ 20. More recently, in Barmada , this Court addressed statements made by the defendant physician, Dr. Pridjian, regarding a fellow physician's competence. Barmada , 989 So.2d at 362. Dr. Pridjian made the allegedly defamatory comments to members of a hospital's heart team while performing surgeries, to other hospital physicians and staff, and to an independent reviewer. Id. Relying on Hayden , this Court ultimately held that the individuals to whom the communication was made "were directly interested in the matter; and therefore, the qualified privilege appli[ed]." Id. (citing Hayden , 407 So.2d at 537-38 ). We also addressed whether the privilege was overcome by a showing of malice or bad faith. Id. at 364 (citing Eckman , 893 So.2d at 1052 ). Holding that it was not, this Court reiterated the rule that we must "rely only on those [allegations of malice or bad faith] supported by evidence in the record." Barmada , 989 So.2d at 364. As Barmada had failed to produce affirmative evidence proving such, we affirmed the judgment and held that Pridjian's comments were protected by the qualified privilege. Id. at 365.

¶ 21. Inland and Dr. Okorie would bolster their argument with authority from other jurisdictions, but our caselaw more than adequately supports our decision, and further discussion is unnecessary. The principles set forth in Hayden , Barmada , and Eckman lead to the conclusion that physician-to-physician communications are protected under the qualified privilege, so long as the privilege's essential elements are satisfied. Here, those essential elements are satisfied.

¶ 22. Since the qualified privilege applied, Amerson was required to produce affirmative evidence of "malice, bad faith, or abuse." See Barmada , 989 So.2d at 364. Malice, as defined by this Court, requires "knowledge of falsity or reckless disregard as to truth or falsity." Eckman , 893 So.2d at 1053. When the qualified privilege applies, the plaintiff bears the burden of proving malice. Hayden , 407 So.2d at 539.

¶ 23. Amerson produced no evidence of malice or bad faith on the part of Dr. Okorie. Instead, she merely argues that the results of her drug tests were incorrect and, therefore, that Dr. Okorie's communication to Dr. Morris relaying those results was false. But even assuming the results were wrong, Amerson has not shown Dr. Okorie knew of the falsity or acted in reckless disregard of the truth. In fact, Amerson has acknowledged the opposite-she concedes that it was "logical" for Dr. Okorie to believe the results because they had been produced from her urine sample.

CONCLUSION

¶ 24. There was no genuine issue of material fact as to the substance of Dr. Okorie's communication to Dr. Morris regarding Amerson's drug-test results. By all accounts, the communication concerned Amerson's continuing medical treatment and satisfied all of the elements of the qualified privilege. Since Amerson failed to produce any evidence of malice, her defamation claims fail as a matter of law. We reverse the circuit court's order and render summary judgment to the Defendants.

¶ 25. REVERSED AND RENDERED.

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

      Dr. Okorie's reference to Amerson's history of abuse was in part supported by previous instances of Amerson's violating fellow physicians' pain management policies. Before seeing Dr. Okorie, Amerson received treatment from Dr. Akwasi Amponsah from August 2008 until March 2011. Dr. Amponsah had ultimately refused to prescribe Amerson certain medications after determining she had obtained narcotics from multiple medical providers.

      According to Dr. Okorie, the abbreviation "AMPH" in the drug test's results actually stands for "amphetamines." "METD" stands for "methadone."

      Eckman required this Court to analyze communications made between two physicians working for a utilization review company. Eckman , 893 So.2d at 1052. The company had been employed to review whether procedures the plaintiff physician performed on two of Cooper Tire & Rubber Co.'s employees qualified for reimbursement. Id. at 1051. The plaintiff surgeon alleged the utilization review company's report contained defamatory statements. Id. at 1052. Ultimately, this Court held that (1) the contents of the report were protected under the qualified privilege, as the utilization-review company and the recipient, Cooper Tire, shared a direct interest in the subject matter of the communication-whether the surgeries qualified for employee reimbursement; and (2) no affirmative evidence of actual malice was provided to overcome the privilege's good-faith presumption. Id. at 1053-54.


text:
    Edmond Denton REEVES v. STATE of Mississippi
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    Supreme Court of Mississippi.
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    Motion Desc: Motion for Rehearing.
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    2016-CT-01112-COA
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    Supreme Court of Mississippi.
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    Eric LaQuinne BROWN v. STATE of Mississippi
    2017-CT-00620-COA
    Supreme Court of Mississippi.
    Filed: September 13, 2018 Closed: November 8, 2018
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    Meika DeSean BRITTON v. STATE of Mississippi
    2017-CT-00046-SCT
    Supreme Court of Mississippi.
    Filed: September 12, 2018 Closed: November 15, 2018
    Motion Desc: Petition for a Writ of Certiorari Certiorari - Dismissed.


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    2016-CT-01743-COA
    Supreme Court of Mississippi.
    Filed: September 18, 2018 Closed: November 29, 2018
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    Clifford C. FRISBY v. Ferrell WARDEN
    2017-CT-00548-COA
    Supreme Court of Mississippi.
    Filed: September 25, 2018 Closed: November 29, 2018
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    David William KENT, Jr. v. STATE of Mississippi
    2017-CT-00432-COA
    Supreme Court of Mississippi.
    Filed: September 25, 2018 Closed: November 29, 2018
    Motion Desc: Petition for Certiorari filed by Appellant.
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    2016-CT-01305-COA
    Supreme Court of Mississippi.
    Filed: September 19, 2018 Closed: November 15, 2018
    Motion Desc: Petition For Writ of Certiorari.
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    Calvin Lee ROBINSON v. STATE of Mississippi
    2017-CT-00417-COA
    Supreme Court of Mississippi.
    Filed: October 29, 2018 Closed: November 29, 2018
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text:
    Rose COX v. MEMORIAL HOSPITAL AT GULFPORT
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    Supreme Court of Mississippi.
    Filed: October 22, 2018 Closed: November 29, 2018
    Motion Desc: Petition for Writ of Certiorari.
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author: GRIFFIS, P.J., FOR THE COURT:

text:
    Kendrick Lamont CASEY a/k/a Kendrick Lamonte Casey a/k/a Kendrick Casey, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01112-COA
    Court of Appeals of Mississippi.
    February 27, 2018 Rehearing Denied July 31, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
    EN BANC.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Kendrick Casey was convicted of aggravated assault and armed robbery. He was sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) on both counts, with the sentences to run concurrently. On appeal, he claims the trial court erred in denying his motion for a continuance on the morning of trial, and in not issuing subpoenas instanter for two witnesses Casey claimed were avoiding service of earlier subpoenas. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of February 5, 2013, a Harrison County Sheriff's deputy encountered a disoriented and injured Johnny Ray Holmes kneeling by a building. The deputy discovered that Holmes had been shot and robbed of prescription drugs during an altercation in a vehicle driven by Jonathan Young. Holmes could not identify who shot him, as the person had attacked him from the backseat of Young's vehicle. Young later identified Casey as the third person in the car. Young said that he and Holmes had arranged to meet so Young could buy prescription drugs (Oxycodone) for his friend Jessica Orr and her boyfriend Casey. When Holmes got into Young's car, Casey grabbed Holmes from behind, demanded the drugs, and hit Holmes over the head with a gun. In the process of handing over the pills, Holmes and Casey fought over the gun, and Holmes was shot. Holmes jumped from the parked vehicle and crawled to a nearby building while Young and Casey drove off. No weapon was recovered.

¶ 3. Casey and Young were indicted on December 23, 2013, for one count of aggravated assault and one count of armed robbery. In exchange for pleading guilty to accessory after the fact to aggravated assault and having the armed-robbery charge passed to the files, Young testified against Casey. During pretrial proceedings, the trial court granted Casey's three separate motions for a continuance, mainly due to issues with his representation.

¶ 4. On July 7, 2015, Casey's new defense counsel filed a notice of alibi, asserting that Casey was with Orr at the time the crime occurred. A July 9, 2015, supplement to the notice of alibi further stated that Orr's mother, Annette Newsome, would testify that she saw Orr and Casey late that evening at her home. At a hearing on July 13, 2015, defense counsel moved for a fourth continuance, stating more time was needed to serve subpoenas to alibi witnesses, particularly Orr and Newsome. Counsel noted it had been "difficult ... to get Ms. Newsome served with a subpoena" and said: "[W]e've done everything in due diligence to get these witnesses." The court granted the motion, and the case was continued for two months.

¶ 5. On September 9, 2015, defense counsel notified the trial court that he had not been able to locate Orr or Newsome for service of the subpoenas. Orr had become a "hostile witness" and was "not responding to anything that [counsel had] done to try to get her to come in to state where she was on that night with [Casey]." A private investigator, Edwin Seward, had been hired to find Orr, and counsel informed the judge:

[W]e still can't locate [Orr]. Judge, we believe we found her, but ... whenever she answers her phone [and we say] we're looking for [Orr], she says it's not her and whatever. We've actually got now a subpoena to go out to her for court next week, and we have one of Mr. Casey's family members who knows what she looks like so we can [e]nsure that we serve her.... This woman is hostile to the defense.... [S]he has rejected every phone call and every overture that I've [made] to get her to come in.

However, neither Orr nor Newsome were located and served with a subpoena. On September 14, at a pretrial hearing, the trial court reserved ruling on the State's motion in limine regarding several of the alibi witnesses, and with regard to Orr, stated: "If Ms. Orr shows up, then we will revisit the whole issue outside the presence of the jury.... I'm going to wait to see, whether she even testifies and if so, what she says." Defense counsel responded that the trial court's approach was "fair." Counsel informed the court that Seward would be available the next day to "reurge our motion for a continuance ...

because of the efforts of two people to avoid process to become a witness."

¶ 6. Defense counsel moved for a fifth continuance on the following day (September 15) and requested the court to issue an "instanter warrant" for Orr and Newsome. Seward testified that he had attempted to serve Orr and Newsome with subpoenas for over three months but had been unable to contact them. The Sunday before the trial, Seward went to another address and was told by a woman, whom he later discovered was Orr, that she would not accept anything, and she cursed at him. Seward said he was informed by Casey's mother that morning that Orr and Newsome were intentionally avoiding service of the subpoenas.

¶ 7. The trial judge denied the motion for a continuance, noting that he had "already granted a lengthy continuance in the case." He also denied the request to issue an "instanter warrant" based on his reasoning that "there's been nothing brought before the [c]ourt by way of motion prior to today to ask the [c]ourt for assistance in serving these alleged witnesses." The trial proceeded.

¶ 8. Holmes testified that he randomly encountered Young as he was walking to the store and asked for a ride. It was at that point that he was attacked and shot, but he could not identify the assailant. Young testified to a slightly different set of facts. Young said he had been helping Newsome with some errands that afternoon, and he encountered Orr and Casey that evening at Newsome's home. Young, a known drug addict, claimed Orr and Casey asked him to obtain some prescription drugs for them; so he contacted Holmes and arranged a meeting. Holmes wanted Young to come alone, but Casey insisted on coming; so Young told Casey to hide in the back seat. He identified Casey as the person who shot Holmes.

¶ 9. Casey was found guilty of both counts. The trial court sentenced Casey as a habitual offender to life in the custody of the MDOC for each count, with the sentences to run concurrently. See Miss. Code Ann. § 99-19-83 (Rev. 2015). Casey filed a motion for a judgment notwithstanding the verdict, and a hearing was held. Among his numerous assignments of error, he argued that the court "erred by not granting a continuance as requested by the defendant due to our inability to locate two material witnesses who clearly were dodging [the] process server." The trial court denied the motion but did not make any specific findings regarding the issue of the motion for a continuance. Aggrieved, Casey now appeals the trial court's denial of his motion for a continuance and his request to issue subpoenas instanter.

DISCUSSION

1. Motion for Continuance

¶ 10. The first issue is whether the trial court erred in denying Casey's motion for a continuance. "[T]he granting of a continuance is largely within the sound discretion of the trial court, and a judgment will not be reversed because the continuance is refused unless there has been an abuse of [that] sound discretion." Hardiman v. State , 776 So.2d 723, 727 (¶ 19) (Miss. Ct. App. 2000) (citations omitted). Considering the four continuances granted by the trial court prior to trial, including the two-month continuance granted in July 2015, we can find no abuse of discretion in the trial court's denial of Casey's motion for a continuance on the morning of trial.

2. Subpoena Instanter

¶ 11. With regard to the second issue-the trial court's refusal to issue subpoenas instanter for Orr and Newsome-Casey contends that "[e]ven if the court was reluctant to grant a continuance, there was no reason why the court should not have honored [his] request to have the sheriff go and get the witnesses so that they could appear at trial." In this instance, we agree. "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi , 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Patton v. State , 109 So.3d 66, 79 (¶ 39) (Miss. 2012), the Mississippi Supreme Court summarized:

The Sixth Amendment affords a defendant the right to have compulsory service for obtaining witnesses in his favor. The Mississippi Constitution mirrors this right by allowing the accused to obtain witnesses in his favor. States cannot arbitrarily deny a defendant the right to put on the stand a witness whose testimony would have been relevant and material to the defense. However, the right to compulsory process is not absolute. We have held that a defendant does not have a constitutional right to subpoena anyone or anything he pleases. Additionally, we have recognized that "the right to call witnesses is limited to relevant and material testimony. The burden is on the defendant to demonstrate a "colorable need" for the witness.

(Internal citations omitted).

¶ 12. Here, the trial court denied Casey's ore tenus motion for subpoenas instanter on the grounds that two of his alibi witnesses, Newsome and Orr, had been avoiding service of process. When the trial court ruled on this matter, it held:

[T]he defense has certainly shown that they have made efforts to contact Ms. Orr and Ms. Newsome. My problem with the case is-I mean with the motion is that this case was set for trial back on the [c]ourt's July docket, and when it was called for trial[,] the defense made a motion for a continuance at that time saying that they had not been able to make contact with some of their witnesses[,] and they felt that they knew where they were and that they would be contacting them within a few days. And defense counsel asked the [c]ourt for a continuance of a week, which I thought was very reasonable and I was ready to grant that[,] and then found out that the case could not be tried on my docket that next week. So I, in fact, granted [the] defense a two-month continuance, not a two-week continuance, because this was going to be the first time I would be available back here in Gulfport for the trial.
So I feel that in spite of the effort[s] that have been made, the [c]ourt [has] already granted a lengthy continuance in the case. And the-there's been nothing brought before the [c]ourt by way of motion prior to today to ask the [c]ourt for assistance in serving these alleged witnesses. So I'm going to deny the motion for a continuance and the bench warrant.

¶ 13. In Pilgrim v. State , 19 So.3d 148, 153 (¶ 15) (Miss. Ct. App. 2009), this Court held that "reversal on the grounds of a trial court's denial of a motion for continuance requires a showing that the trial court's decision resulted in a manifest injustice." Here, no manifest injustice has been demonstrated. At the July 15, 2015 hearing, Casey's counsel assured the trial court that he had found Orr and Newsome. Counsel then said:

That leads me, your Honor, to my motion for continuance. All I'm asking for, judge, is one week. One week. Move us to next Monday, Judge, and we'll be ready to go to trial.
....
Judge, we've done everything in due diligence to get these witnesses. We're close to getting them. All I'm asking for, your Honor, is one week.

The continuance was granted, and the trial did not begin until two months later on September 15th. The trial judge then ruled:

So I feel that in spite of the effort[s] that have been made, the [c]ourt's already granted a lengthy continuance in the case. And the-there's been nothing brought before the [c]ourt by way of motion prior to today to ask the [c]ourt for assistance in serving these alleged witnesses. So I'm going to deny the motion for a continuance and the bench warrant.

(Emphasis added).

¶ 14. There were at least four continuances granted over a two-year period. A continuance was granted on July 16, 2014, and the case was set for trial on November 3, 2014. Then, the case was reset for trial on January 5, 2015. On March 2, 2015, Casey's request for a continuance was granted, and the case was reset for June 22, 2015. On June 22, 2015, Casey received another continuance, and the case was reset for July 13, 2015. On July 13, 2015, Casey asked for another continuance, and the case was set for trial in September.

¶ 15. Throughout these continuances, Casey identified an issue with finding Orr and Newsome. At one point, Casey indicated they had been found or would be found a short time later. The trial judge did not arbitrarily refuse to issue the subpoenas instanter. Instead, the trial judge clearly considered Casey's representations and the fact that Casey had several months to bring any issues to the court's attention to ensure the September trial went forward.

¶ 16. We do not find that the trial judge abused his broad discretionary powers in failing to grant yet another continuance. Indeed, there is nothing in this record demonstrating that the denial of a last-minute continuance after the seating of the jury resulted in a "manifest injustice" to Casey personally or to our present system of criminal justice. The supreme court has held that trial judges have broad discretionary powers in granting or refusing to grant a continuance. Pauley v. State , 113 So.3d 557, 561 (¶ 7) (Miss. 2013).

¶ 17. As to the question of whether the trial court erred by denying the request for subpoenas instanter, the record indicates that throughout the discussion of this case, Casey's counsel voiced his concerns about locating Orr and Newsome so they could appear and testify. The trial court did not deny Casey's right to have compulsory process to obtain witnesses in his favor; instead, the trial court denied the request because this issue had been identified for months, and Casey's counsel previously had assured the court that they would appear. Then, with a two-month continuance, Casey's counsel did not ask the court to address this issue in advance but waited until after the jury was selected to bring it to the court's attention. We find no error by the trial court.

¶ 18. We find no Mississippi case that requires the trial court to issue subpoenas instanter to preserve the defendant's Sixth Amendment right to compulsory process, especially when the issue was addressed by the court for months. It is clear that the trial judge believed this matter should have been addressed at the fourth continuance, which occurred two months before the scheduled trial. We find no error and affirm.

¶ 19. AFFIRMED.

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

¶ 20. While I agree with the majority that the trial court did not err in denying Casey's motion for a continuance, I find the court's denial of his request to issue subpoenas instanter for two witnesses constitutes reversible error, and I would reverse and remand for a new trial.

¶ 21. As the majority notes, there is no Mississippi case requiring a trial court to issue a subpoena instanter to preserve a defendant's right to compulsory process. But the Mississippi Supreme Court has held that a trial court's failure to do so warrants a finding of reversible error when it affects a defendant's due-process right to a defense. In Hentz v. State , 542 So.2d 914, 915 (Miss. 1989), the trial court quashed subpoenas for several witnesses, as the defendant "had not established that the witnesses' testimony would be material and beneficial." The supreme court reversed and remanded for a new trial, concluding:

[Larry] Hentz'[s] defenses were entrapment and duress. Hentz'[s] "proffer" regarding the [witnesses] suggests that they had relevant and material knowledge, at least on the issue of duress. Their testimony was vital because without it Hentz had no defense. While Hentz'[s] proffer should have been more detailed, denial of any defense whatsoever cannot be ignored. Due process requires that a criminal defendant be allowed the opportunity to defend himself. Having made a sufficient showing of colorable need in relation to [the witnesses], Hentz'[s] right to compulsory process, guaranteed by Section 23 of the Mississippi Constitution and the Sixth Amendment to the United States Constitution, was violated. We have no alternative but to reverse and remand for a new trial.

Id. at 917 (emphasis added).

¶ 22. In United States v. Moudy , 462 F.2d 694, 696-97 (5th Cir. 1972), the United States Court of Appeals for the Fifth Circuit determined that a trial court committed reversible error in denying a defendant's request for a subpoena the day before trial for a psychiatrist who had examined the defendant.

In 1966[, Federal Rule of Civil Procedure 17(b) ] was amended to make issuance [of a subpoena] mandatory upon "a satisfactory showing that the presence of the witness is necessary to an adequate defense." That requirement leaves broad discretion in the district court by allowing the trial judge to weigh numerous factors, including materiality, relevancy, and competency, in deciding whether to grant the request for a subpoena.
....
It does not appear from anything in the record that the request was frivolous or the averments untrue. Such testimony would have been material and relevant to the only factual question really in issue.... It is true that the motion for a subpoena addressed to Dr. Murney was filed the day before trial, which is a late hour.... Last minute tactics designed to bring the trial process to a halt are not to be countenanced, but considering the court's awareness of appellant's previous unsuccessful attempt to secure a subpoena for an expert to testify regarding his sanity and the apparent relevance of the desired witness' [s ] testimony, and considering also that the record does not demonstrate that in fact the trial would have been delayed, we conclude that the need for Dr. Murney's presence was sufficient to render the court's refusal to issue a subpoena for him reversibly erroneous.

Id. at 697-98 (emphasis added) (internal citations omitted).

¶ 23. Similarly, the trial court here was well aware of Casey's attempts to serve a subpoena on the two witnesses, acknowledging that "the defense has certainly shown that they have made efforts to contact Ms. Orr and Ms. Newsome." Two months before trial, defense counsel informed the trial court and the State that Orr and Newsome may have information, which would provide an alibi defense for Casey. At the July 13, 2015 hearing, defense counsel argued to the court: "I found two witnesses, and Annette Newsome, who should be able, if they told the truth, are going to say that some time between 10:15, 10:30, quarter to 11, Mr. Casey [and] Jessica Orr went to Annette Newsome's house. They were there a period of time." On the morning of trial, the investigator told the court that issuing a warrant was the "only way you're going to get those two." Seward had attempted for three months to find them, stating that they were the "hardest that I've ever tried to serve." It was apparent that neither woman was going to testify voluntarily, and their presence would need to be compelled.

¶ 24. Therefore, despite the "late hour" of Casey's request for the subpoenas, as in Hentz and Moudy , I find that Casey articulated a "colorable need" for the witnesses' testimonies, and the record reflects they had "relevant and material knowledge" of the events of that evening. Moreover, nothing indicates that the trial would have been delayed by the court's issuance of subpoenas for their appearance-the trial lasted three days. See Rogers v. State , 891 So.2d 268, 273-74 (¶¶ 26-28) (Miss. Ct. App. 2004) (affirming the trial court's denial of a defendant's motion for a continuance but noting that the trial court "assisted" the defendant by issuing subpoenas instanter during the trial for witnesses the defendant alleged would testify on his behalf.). Here, there is no reason for the trial court's refusal to grant Casey's request for the subpoenas. If the women were not served in time for them to appear as witnesses, the trial would continue without them.

¶ 25. In Washington v. Texas , 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), the United States Supreme Court declared:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

"A corollary to the accused's right to compulsory process is the court's obligation to ensure ... that right is not violated for procedurally pretextual reasons." McTerry v. State , 680 So.2d 953, 955 (Ala. Crim. App. 1996). In light of Casey's Sixth Amendment right to compulsory process, and his diligent, yet unsuccessful, effort to obtain material witnesses for his defense, I find the trial court's denial of Casey's request to issue subpoenas instanter for Orr and Newsome was an abuse of discretion and a violation of Casey's right to present a defense.

¶ 26. Accordingly, I would reverse the judgment of convictions and remand for a new trial with Casey assisted by the compulsory process of the court.

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

      The trial court in Patton actually granted the defendant's request for a subpoena but dismissed the witness after the defendant failed to articulate a colorable need for his testimony. Id. at 73 (¶¶ 11-12). The supreme court upheld the court's decision, finding Edgar Patton had "failed to demonstrate that [the witness's] anticipated testimony was relevant and material to [his] defense." Id. at 79-80 (¶ 40).

      While not known by the trial court when he ruled on Casey's motions, the trial testimony reflects the two women were involved to some degree in the events that transpired that evening. Holmes, the victim, testified that Newsome was his cousin, that he knew Young from seeing him at Newsome's home, and that Orr and Young were friends. Young corroborated this testimony, stating that he was buying the drugs for Orr and Casey; he had "run into them" at Newsome's home that evening. He had been driving Newsome around that afternoon, helping her with errands.