author: TINDELL, J., FOR THE COURT:

text:
    Paul POSEY and Robert Posey, Appellants v. Dorothy POPE and Willard Posey, Appellees
    NO. 2017-CA-00104-COA
    Court of Appeals of Mississippi.
    August 28, 2018
    ATTORNEY FOR APPELLANTS: STEVEN DETROY SETTLEMIRES, Philadelphia
    ATTORNEYS FOR APPELLEES: G. TODD BURWELL, Ridgeland, EMILY KINCSES LINDSAY
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   TINDELL, J., FOR THE COURT:

¶ 1. This appeal arises from a dispute among siblings Paul Posey and Robert Posey (collectively, the Proponents) and Dorothy Pope and Willard Posey (collectively, the Contestants) as to the validity of a 2008 will (the 2008 will) executed by their mother, Gladys Posey. Following Gladys's death in 2013, Paul submitted the 2008 will to probate and recorded three warranty deeds (the 2013 deeds) that transferred portions of Gladys's real property to the Proponents' children and grandchildren. The Contestants subsequently filed a complaint in Neshoba County Chancery Court and alleged the Proponents procured both the 2008 will and the 2013 deeds through undue influence. In a bifurcated trial solely on the issue of the 2008 will's validity, a Neshoba County jury returned a verdict in favor of the Contestants. Citing Mississippi Rule of Civil Procedure 54(b), the Neshoba County Chancery Court entered a final judgment that revoked Gladys's 2008 will.

¶ 2. The Proponents appeal both the chancellor's final judgment and his denial of their motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. On appeal, the Proponents raise the following arguments: (1) the chancellor's evidentiary rulings on the parties' motion-in-limine requests resulted in the admission of evidence that was unfairly prejudicial, confused the issues, and misled the jury; (2) the chancellor erroneously gave jury instructions that were too numerous and that misled and confused the jury; and (3) insufficient evidence supported the jury's verdict that the Proponents procured the 2008 will through undue influence.

¶ 3. Finding no error, we affirm.

FACTS

I. The 2007 Deeds and the 2008 Complaint

¶ 4. In 1996, Madison Posey executed a will that left all his real property to his wife, Gladys. If Gladys predeceased Madison, his will directed that his real property be equally divided among five of the couple's six children, including the Proponents and the Contestants. Gladys's will mirrored the provisions of Madison's will.

¶ 5. In 2004, Madison died and left Gladys approximately 138 acres of land in Neshoba County, Mississippi. At the time of Madison's death, Gladys was in her mid-eighties. Through two separate warranty deeds signed on September 13, 2007 (the 2007 deeds), Gladys conveyed approximately 132 acres of her property to the Proponents. On April 10, 2008, she executed a general durable power of attorney that appointed her son Paul her attorney-in-fact.

¶ 6. On June 30, 2008, the Contestants filed a complaint (the 2008 action) to cancel the 2007 deeds based on undue influence and to confirm their title to part of the conveyed land through adverse possession. In a January 30, 2012 final judgment, the chancellor found the Contestants had sufficiently proven their claims of undue influence and adverse possession. As a result, the chancellor set aside the property conveyed to the Proponents through the two 2007 deeds and granted the Contestants' claims of title by adverse possession. On appeal, this Court found the Proponents lacked standing to appeal the chancellor's judgment. Posey v. Pope , 130 So.3d 1183, 1185 (¶ 5) (Miss. Ct. App. 2014). We therefore dismissed the appeal. Id.

II. The 2008 Will, the 2013 Warranty Deeds, and the 2013 Action

¶ 7. Gladys died on May 21, 2013. The same day, Paul recorded the three 2013 deeds, which conveyed portions of Gladys's real property to only the Proponents' children and grandchildren. Several days later, on June 6, 2013, Paul filed a petition to open Gladys's estate and for the issuance of letters testamentary. Paul submitted for probate the 2008 will, which considerably changed the distribution of Gladys's property to favor the Proponents. While Gladys's 1996 will had evenly distributed her property among the Proponents, the Contestants, and one other sibling, her 2008 will bequeathed four of her children, including the Contestants, only $100 each and devised and bequeathed the remainder of her estate to the Proponents.

¶ 8. On June 12, 2013, the chancellor entered an order to admit the 2008 will to probate. The chancellor also appointed Paul executor of Gladys's estate and issued letters testamentary. In August 2013, the Contestants filed a complaint (the 2013 action) to set aside the 2008 will and the property conveyed through the three 2013 deeds. The Contestants also filed a successful motion to remove Paul as executor of Gladys's estate and to consolidate their complaint with the estate proceedings.

¶ 9. Prior to trial, the Proponents filed two motions in limine in which they sought to (1) prohibit any mention to the jury of the undue-influence judgment related to the 2007 deeds; and (2) bifurcate the trial to first determine the validity of the 2008 will. The Contestants likewise filed a motion in limine that sought to restrict the trial to the issue of the 2008 will's validity. The Contestants' motion in limine also sought the exclusion of the following: (1) any mention of or testimony about "the [w]ill executed by Madison; the adverse possession of the real property at issue in the 2008 [action]; and[ ] how any of the property, whether real or personal, in ... Gladys['s estate] should be distributed"; (2) any testimony offered by the Proponents to rebut a presumption of undue influence; (3) any hearsay regarding Gladys's opinion of the Contestants and how Gladys wished to dispose of her assets; and (4) any hearsay regarding statements Dorothy allegedly made to third-party entities about Gladys and Paul. Along with their motion in limine, the Contestants filed a motion to bifurcate the trial so that the jury only received facts and evidence related to the 2008 will's validity.

¶ 10. Following a March 17, 2016 hearing, the chancellor granted the parties' requests to bifurcate the trial. The chancellor therefore restricted the trial to the sole issue of the will contest and reserved all other issues for a later determination. As to the parties' motion-in-limine requests, the chancellor found the Proponents could provide testimony to rebut any presumption of undue influence. However, the chancellor excluded testimony of alleged statements Dorothy made to third-party entities about Gladys and the Proponents as irrelevant, speculative, and hearsay. With regard to evidence about the undue-influence and adverse-possession rulings in the 2008 action and any statements Gladys made about her opinion of the Contestants or how she wished her property to be distributed, the chancellor reserved his decision "until trial or such other time that [he] deem[ed] appropriate." In a subsequent order, however, the chancellor determined that the parties' prior litigation, and the resulting findings of undue influence and adverse possession, "would be unfairly prejudicial should the jury hear about the same and [should therefore] be excluded from the will contest[ ] unless the party attempting to exclude the evidence ... open[ed] the door by introducing evidence that such party [had attempted] to exclude." The chancellor explained, though, that his ruling did not prohibit the parties from offering evidence presented in the prior litigation about the two 2007 deeds.

¶ 11. Over the course of a three-day trial in September 2016, the parties presented evidence and testimony about the validity of Gladys's 2008 will and whether the Proponents had used undue influence to procure the will. At the close of the Contestants' case-in-chief, the Proponents moved for a directed verdict and argued the Contestants had failed to establish a presumption of undue influence. In denying the motion, the chancellor concluded the Contestants had proven the existence of a confidential relationship between Gladys and the Proponents. The chancellor also found that a triable jury question existed as to whether the Proponents had abused their relationship with Gladys by either asserting dominance over her or by substituting their intent for hers.

¶ 12. After considering all the parties' evidence, the jury returned a verdict in favor of the Contestants. On October 6, 2016, the chancellor entered a final judgment pursuant to Rule 54(b) that revoked Gladys's 2008 will. The Proponents filed an unsuccessful motion for a JNOV or, in the alternative, a new trial. Aggrieved by the chancellor's final judgment and his denial of their posttrial motion, the Proponents timely appeal.

DISCUSSION

I. Evidentiary Rulings

¶ 13. The Proponents argue the chancellor's rulings on the parties' motion-in-limine requests resulted in the admission of evidence that was irrelevant, unfairly prejudicial, and confusing to the jury. In particular, the Proponents challenge the chancellor's decision to admit into evidence the 2007 deeds, Gladys's bank records, and the 2013 deeds.

¶ 14. "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the case." M.R.E. 401. Unless the United States Constitution, the Mississippi Constitution, or the Mississippi evidentiary rules provide otherwise, relevant evidence is admissible. M.R.E. 402. However, a "court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." M.R.E. 403. We review the trial court's admission or exclusion of evidence for abuse of discretion. Ehrhardt v. Donelson , 221 So.3d 393, 396 (¶ 15) (Miss. Ct. App. 2017). "Where error involves the admission or exclusion of evidence, [the appellate courts] will not reverse unless the error adversely affects a substantial right of a party." Magers v. Diamondhead Resort LLC , 224 So.3d 106, 112 (¶ 11) (Miss. Ct. App. 2016) (quoting Whitten v. Cox , 799 So.2d 1, 13 (¶ 27) (Miss. 2000) ).

a. The 2007 Deeds

¶ 15. In one of their motions in limine, the Proponents specifically asked the chancellor to prohibit any mention to the jury about the facts and matters related to the 2008 action. In ruling on the parties' various motion-in-limine requests, the chancellor determined that the 2008 action and the resulting undue-influence and adverse-possession rulings should be excluded from the present will contest. However, the chancellor explained his decision did not prohibit the parties "from offering facts that were presented in the prior litigation concerning the deeds that were at issue ...."

¶ 16. Based on the chancellor's ruling, the Contestants sought to admit into evidence the two 2007 deeds that conveyed part of Gladys's property to the Proponents. The Proponents objected to the admission of the 2007 deed conveying land to Paul on the ground of relevance. They asserted no other objection to the exhibit's admission, and they raised no objection at all to the admission of the 2007 deed conveying land to Robert. In overruling the Proponents' objection, the chancellor found the deed was admissible "to establish a pattern" of conduct between Paul and Gladys. On appeal, the Proponents acknowledge the 2007 deeds may have been potentially relevant to the will contest. However, they still assert their admission was unfairly prejudicial, confused the issues, and misled the jury.

¶ 17. Upon review, we agree with the chancellor that the 2007 deeds were probative to the question of the 2008 will's validity. The Contestants sought to prove that the Proponents had a confidential relationship with Gladys and that suspicious circumstances surrounded the 2008 will's preparation and execution. Like the chancellor, we find the 2007 deeds provided relevant evidence regarding the pattern of conduct that existed between the Proponents and Gladys in the period leading up to the 2008 will's preparation and execution. Despite the Proponents' assertions on appeal, we cannot find that any unfair prejudice or tendency to confuse the issues or mislead the jury substantially outweighed the 2007 deeds' probative value. See M.R.E. 403. We therefore find no abuse of discretion in the chancellor's decision to admit the 2007 deeds.

b. Gladys's Bank Records

¶ 18. The chancellor also allowed the Contestants to introduce into evidence the bank records from a joint checking account Gladys shared with Paul. The Proponents objected that the bank records bore no relevance to the issue of the 2008 will's validity. On appeal, the Proponents argue that the chancellor's admission of the bank records "inject[ed] collateral issues, to be decided at a later date, into the will contest[,]" unfairly prejudiced them, and resulted in a verdict of passion.

¶ 19. Upon review, we find the disputed bank records were relevant to support the Contestants' claim that a confidential relationship existed between Gladys and the Proponents until the date of her death. Whether a person maintains a joint account with another is a factor to consider in determining the existence of a confidential relationship. Kimbrough v. Estate of Kimbrough , 134 So.3d 281, 284-85 (¶ 12) (Miss. 2014). Thus, the bank records were clearly probative to show whether such a relationship existed between Gladys and the Proponents. Furthermore, the bank records established who wrote which checks from the joint account, such as the check Paul filled out for the payment of the 2008 will's preparation. In addition, the bank records showed to what extent the Proponents had access to and control over Gladys's finances. Because we find the bank records' probative value substantially outweighed any danger of unfair prejudice or tendency to confuse the issues or mislead the jury, we find no abuse of discretion in the chancellor's admission of the records. Accordingly, we find this argument lacks merit.

c. The 2013 Deeds

¶ 20. Finally, the Proponents contend the chancellor abused his discretion by admitting into evidence the 2013 deeds.

The Proponents argue the 2013 deeds lacked relevance to the will contest because Paul executed them four years after the 2008 will. Furthermore, the Proponents assert the 2013 deeds' probative value was substantially outweighed by the danger of unfair prejudice and a tendency to confuse the issues and mislead the jury.

¶ 21. At trial, Paul testified he really only used his mother's power of attorney when she had to "go to the hospital or something, [and] I had to sign for her ...." Paul further testified about the instructions Gladys gave him on the division of certain real property among her grandchildren. According to Paul, he always followed his mother's instructions for the disposition of her property.

¶ 22. On cross-examination, the Contestants sought to impeach Paul's credibility by introducing into evidence the 2013 deeds. Paul executed the 2013 deeds pursuant to the power of attorney. In addition, the 2013 deeds conveyed part of Gladys's property to only the Proponents' children and grandchildren rather than to all of Gladys's grandchildren and great-grandchildren. Overruling the Proponents' objection to the 2013 deeds' relevance, the chancellor allowed the Contestants to admit the 2013 deeds for the limited purpose of impeaching Paul's credibility.

¶ 23. After considering the evidence, we find no abuse of discretion in the chancellor's decision to admit the 2013 deeds. As discussed, the Contestants only sought to admit the 2013 deeds to impeach Paul's direct-examination testimony. Since the chancellor allowed the 2013 deeds for that limited purpose, their admission did not inject collateral issues into the will contest. The parties presented no arguments regarding the validity of the 2013 deeds, and thus, the sole issue before the jury remained the validity of Gladys's 2008 will. Furthermore, on redirect examination, Paul had an opportunity to explain his actions in executing the 2013 deeds pursuant to the power of attorney. For these reasons, we find this assignment of error lacks merit.

II. Jury Instructions

¶ 24. The Proponents next argue the chancellor erred by giving too many jury instructions, which they claim confused and misled the jury. According to the Proponents, the chancellor should have followed Uniform Rule of Circuit and County Court 3.07 and limited each party to the submission of only six jury instructions. As support for their contention that the overall number of instructions confused the jury, the Proponents point to a written question the jury submitted to the chancellor during its deliberations.

¶ 25. We review a trial court's decision to give or refuse jury instructions for abuse of discretion. Magers , 224 So.3d at 109 (¶ 6). "When jury instructions are challenged on appeal, we do not review them in isolation: rather, we read them as a whole to determine if the jury was properly instructed." Id. at 109-10 (¶ 6) (internal quotation marks omitted). Where the jury instructions as a whole fairly announce the relevant caselaw and create no injustice, we will find no reversible error. Id. at 110 (¶ 6).

¶ 26. At the beginning of the jury-instruction conference, the Proponents objected that the fourteen instructions the Contestants submitted were too numerous and would confuse the jury. In response, the Contestants explained that, since the chancellor did not usually instruct a jury, they submitted a number of basic court instructions. The Contestants further argued that, since the litigation was complex "in terms of the shifting of burden of proof[,]" good cause existed for the submission of more than six jury instructions. After considering the parties' arguments, the chancellor decided not to limit the number of jury instructions the parties could submit. The chancellor further provided, though, that he would determine whether to actually give each instruction as it was discussed.

¶ 27. During the jury's deliberations after the trial, the chancellor received a note from the jury that stated as follows: "Explain Question # 3 more. Acted independently and without undue influence when she executed her will? The process before or the actual signing." After discussing the jury's note, the chancellor and the parties' attorneys concluded the question referred to jury instruction C-15, which contained four questions the jury had to answer either affirmatively or negatively. The third question contained in instruction C-15 asked: "Do you find, by a preponderance of the evidence, that Gladys Posey acted independently and without undue influence when she executed her will?" Without objection from either party, the chancellor responded to the jury by writing that the answer to their question was set out in instruction C-8. Following the chancellor's response, the jury continued its deliberations and then returned a verdict without asking for further guidance.

¶ 28. The Mississippi Supreme Court has explained "that the number of instructions submitted to the court and the jury 'lies within the sound judicial discretion of the trial judge[,] who may limit or expand for good cause shown.' " Blue v. State , 716 So.2d 567, 573 (¶ 25) (Miss. 1998) (quoting Young v. State , 451 So.2d 208, 211 (Miss. 1984) ). The supreme court has further held that the six-instruction limit acts as a "numerical beginning point" rather than an "inflexible rule[.]" Id. In the present case, we find no abuse of discretion in the chancellor's decision to allow the Contestants to submit more than six jury instructions. In addition, we find no abuse of discretion in the chancellor's decision to give more than six of the Contestants' submitted instructions. While the Proponents renew their trial objection as to the number of jury instructions given, they neither discuss which specific jury instructions may have confused or misled the jury, nor do they argue that any of the Contestants' instructions provided an incorrect statement of law. Furthermore, the Proponents assert no claim that the chancellor incorrectly responded to the jury's question during its deliberations. Thus, after reading the given jury instructions as a whole, we find they fairly announced the applicable caselaw and created no injustice. See Magers , 224 So.3d at 109-10 (¶ 6). We therefore find this assignment of error lacks merit.

III. Sufficiency of the Evidence

¶ 29. In both their motion for a directed verdict at the end of the Contestants' case-in-chief, and again in their posttrial motion for a JNOV, the Proponents challenged the sufficiency of the evidence supporting the finding of undue influence. When reviewing the sufficiency of the evidence, we consider "the trial court's ruling at the last time the sufficiency of the evidence was challenged." Warren v. State , 187 So.3d 616, 627 (¶ 29) (Miss. 2016) (quoting Wales v. State , 73 So.3d 1113, 1120 (¶ 19) (Miss. 2011) ). We therefore review the chancellor's denial of the Proponents' motion for a JNOV. In so doing, we "view[ ] the evidence in the light most favorable to the [nonmoving party], and if substantial evidence supports the verdict, we will affirm the judgment of the trial court." Cope v. Thrasher Constr. Inc. , 231 So.3d 989, 993 (¶ 5) (Miss. 2017) (citing Adcock v. Miss. Transp. Comm'n , 981 So.2d 942, 948 (¶ 25) (Miss. 2008) ); accord Hall v. State , 245 So.3d 396, 401 (¶ 21) (Miss. 2018).

¶ 30. The Proponents admit that sufficient evidence existed to demonstrate a confidential relationship between Paul and Gladys. However, they also correctly assert this fact alone fails to give rise to a presumption of undue influence. See Estate of Phelps v. Phelps , 180 So.3d 835, 840 (¶ 23) (Miss. Ct. App. 2015). "A presumption of undue influence arises where: (1) a confidential relationship existed between the testator and a beneficiary, and (2) there existed suspicious circumstances-such as the testator's mental infirmity-or the beneficiary in the confidential relationship was actively involved in some way with preparing or executing the will." Id. Here, the Proponents contend the Contestants presented insufficient evidence to prove the second prong of the undue-influence analysis.

¶ 31. In denying the Proponents' motion for a JNOV, the chancellor found the Contestants presented sufficient evidence for the jury to determine whether the Proponents were actively involved in the 2008 will's preparation or execution or whether suspicious circumstances existed that negated any independent action by Gladys. During the trial, the Contestants established that Gladys and her husband, Madison, had used Mont Mars for their legal matters, including the preparation of their wills in 1996. While Gladys also used Mars to prepare the 2007 deeds, she did not use him a year later to prepare her 2008 will. Instead, Gladys hired Wade White, who had not previously done any legal work for her. White testified that he had known Gladys his entire life. He stated he was related to Willard's wife and was related by marriage to Paul's son, Eddie Posey, and to Eddie's wife. In addition, White testified that, in his capacity as the attorney for the Neshoba County Board of Supervisors, he worked closely with Eddie, who was the county road manager.

¶ 32. At the time Gladys signed the 2008 will, Paul was her primary caretaker. Gladys was 89 years old, and two of her daughters, Clara Benson and Elaine Powell, testified that cataracts had caused their mother's eyesight to greatly deteriorate. Although White testified that Gladys herself called him to discuss the preparation of her 2008 will, Clara disputed whether her mother could have looked up the number in the phone book. According to Clara, Gladys's eyesight had become so poor that Gladys had difficulty reading or even seeing a glass of water in front of her. Clara further testified that Gladys needed help dialing phone numbers and would ask Clara to dial the numbers for her.

¶ 33. White testified he could not tell whether Gladys was by herself when the two initially discussed the preparation of the 2008 will because they spoke over the phone. After their telephone conversation, White prepared the 2008 will and took it to Gladys's house for her to review and sign. White testified that Gladys remained seated in a recliner during the visit and that Paul's son, Jeffrey Posey, had to let White and his secretary into the house.

¶ 34. Unlike Gladys's prior will, the 2008 will left her entire estate to the Proponents with the exception of a $100 bequest to Clara, Elaine, and each of the Contestants. White testified that he did not recommend to Gladys that she distribute her property that way. White further testified that Gladys did not pay him during his visit to her house. Instead, White later received a check from the joint banking account Gladys shared with Paul. The check was dated the same day that Gladys executed the 2008 will. Paul testified that he went to his mother's house the day she signed the will. Upon arriving, Paul stated that he learned about the 2008 will for the first time and that his mother gave him a check to pay White. Paul testified that his mother was capable of filling out checks herself but that she only signed the check for White. As a result, Paul stated that he dated and filled out the check and then delivered it to White's office.

¶ 35. Based upon the evidence the Contestants presented during their case-in-chief, the jurors could have reasonably found the Proponents participated in the 2008 will's preparation or execution or that suspicious circumstances existed that negated any independent action by Gladys. As a result, the jury could have found sufficient information to support a presumption of undue influence. Once the presumption of undue influence arose, the burden shifted to the Proponents-the will beneficiaries-to prove the following: "(1) [g]ood faith on the part of the beneficiar[ies]; (2) the testator's full knowledge and deliberation of [her] actions and their consequences; and (3) independent consent and action on the part of the testator." Estate of Phelps , 180 So.3d at 841 (¶ 31). The Proponents were required to prove each of these factors by clear and convincing evidence. See id.

a. Good Faith

¶ 36. To determine the Proponents' good faith, we consider the following: "(a) the identity of the initiating party seeking preparation of the will; (b) the place of the execution of the will and in whose presence; (c) the fee paid; (d) by whom it was paid; and (e) the secrecy or openness surrounding the execution of the will." Id. at (¶ 32).

¶ 37. As discussed, Gladys and her husband had traditionally used Mars for all their legal matters. Even for the 2007 deeds, Gladys used Mars. However, for the preparation of her will just a year later, Gladys hired White, who was related to Paul's son and daughter-in-law by marriage and worked closely with Paul's son. Due to their mother's deteriorating eyesight, Clara and Elaine disputed whether Gladys had the ability to locate and dial an unknown telephone number without assistance. Nevertheless, White testified that Gladys initiated the will's preparation herself and that he spoke to no other family members about the document. White stated, though, that he only spoke to Gladys over the phone about the will's preparation. As a result, White could not confirm that Gladys was actually alone when she called.

¶ 38. Even though Paul testified he knew nothing of the will beforehand, he admitted that he arrived at Gladys's home the same day she executed the new will. Although Gladys was still able to write her own checks, Paul testified that his mother only signed the check for the payment of the will's preparation. Paul stated that he actually filled out the check from the joint account he shared with his mother and then personally delivered the payment to White's office. According to Paul, he also placed the 2008 will in his personal safety deposit box and never told the Contestants about the document. Paul further testified that, although he mentioned the 2008 will's existence to Clara and Elaine, he never related to them the contents. Based on such testimony, the jury could have concluded the Proponents failed to prove by clear and convincing evidence that they acted in good faith.

b. Knowledge and Deliberation

¶ 39. We next consider the following factors to determine whether Gladys had full knowledge and deliberation of her actions and their consequences:

(a) whether [Gladys] was aware of her total assets and their worth; (b) whether [Gladys] understood who her natural inheritors were and how her action would legally affect prior wills; (c) whether [Gladys] knew nonrelative beneficiaries would be included or excluded; and (d) whether [Gladys] knew who controlled her finances and how dependent [Gladys] was on anyone handling her finances.

Estate of Phelps , 180 So.3d at 841 (¶ 33).

¶ 40. The Contestants and Clara testified that Gladys was not aware of the value of her assets. Based on White's limited conversations with Gladys, he also could not testify that Gladys knew her total assets and their worth. According to White, he and Gladys never discussed the details of her estate. Instead, Gladys simply instructed him to prepare a will that left Clara, Elaine, and each of the Contestants $100 and the Proponents the remainder of her estate.

¶ 41. The record reflects no dispute that Gladys had full knowledge of her natural inheritors. However, while the Proponents assert that Gladys had good reason to be upset with several of her children and to change the amount they inherited under the 2008 will, they offered no testimony to show by clear and convincing evidence that Gladys understood how her actions would legally affect her prior will.

¶ 42. As for the final factor, the Proponents acknowledge in their appellate brief that Paul helped Gladys with her finances because Gladys "was virtually physically unable to pay bills and such." In June 2007, Gladys was hospitalized for several weeks. On the day Gladys was discharged, Paul drove her to the bank so she could add him as a joint account owner. The following year, in April 2008, Gladys executed a power of attorney that appointed Paul as her attorney-in-fact. Paul testified that he often wrote checks from the joint account. While Gladys sometimes filled out checks, Paul testified there were many other times when he filled out the checks and his mother simply signed them. Based on the testimony and evidence, the jury could have found the Proponents failed to prove by clear and convincing evidence that Gladys had full knowledge of who controlled her finances.

c. Independent Consent and Action

¶ 43. One way for the Proponents to prove Gladys exhibited independent consent and action was to demonstrate that Gladys sought advice from (a) a competent person; (b) who was disconnected from the 2008 will's beneficiaries; and (c) who was wholly devoted to Gladys's own interest. See In re Estate of Hart , 20 So.3d 748, 756 (¶ 22) (Miss. Ct. App. 2009).

¶ 44. No dispute exists that White was competent to legally advise Gladys on the 2008 will. However, White testified that he did not advise Gladys about the substance of her will because she had already decided what she wanted. He simply prepared a will to reflect her stated wishes. "The jury is the final arbiter of a witness's credibility" and "weighs the weight and worth of any conflicting testimony." Williams v. State , 794 So.2d 1019, 1028 (¶ 59) (Miss. 2001). After assessing the evidence, the jury could have found the Proponents failed to prove by clear and convincing evidence that Gladys exhibited independent consent and action.

¶ 45. Viewing the evidence in the light most favorable to the Contestants, we conclude a reasonable juror could have found the Contestants met their evidentiary burden to establish the second prong for undue influence. We further find sufficient evidence existed for a jury to determine the Proponents failed to rebut the presumption of undue influence by clear and convincing evidence. Because substantial evidence supports the jury's verdict, we refuse to reverse the chancellor's denial of the Proponents' motion for a JNOV. See Cope , 231 So.3d at 993 (¶ 5). We therefore find this assignment of error lacks merit.

CONCLUSION

¶ 46. Because we find no merit to the Proponents' assignments of error, we affirm the chancellor's final judgment and his denial of their motion for a JNOV.

¶ 47. AFFIRMED.

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

      Although Paul executed two of the deeds in 2012, he waited until 2013 to record all three deeds. As a result, we collectively refer to these three warranty deeds as the 2013 deeds.

      The record contains contradictory evidence as to the date of Gladys's death. However, because the letters testamentary identify May 21, 2013, as the day Gladys died, we use that date throughout our opinion.

      Acting as Gladys's attorney-in-fact, Paul had previously executed two of the deeds on September 10, 2012, and the third on January 9, 2013.

      As needed, we will relate any additional facts during our discussion of the issues the Proponents raise on appeal.

      In relevant part, Rule 3.07 states:
      At the conclusion of testimony, the attorneys must select no more than six jury instructions on the substantive law of the case from the instructions prefiled and present them to the judge. The court, for good cause shown, may allow more than six instructions on the substantive law of the case to be presented.
      URCCC 3.07.

      White testified he could not remember if Jeffrey was already present to let him into Gladys's house or if someone had to call Jeffrey and ask him to let White into the house. Jeffrey testified he thought he arrived at Gladys's house at the same time as White, let White into the house, and then waited outside while White spoke to Gladys. Jeffrey testified that, at the time, his grandmother had an ulcer on her leg that required daily redressing. Because of his healthcare background, Jeffrey testified that he checked on his grandmother each day and helped her redress the wound.

      The Contestants' attorney clearly conveyed that the Contestants were not accusing White of any wrongdoing; rather, White just "had the pleasure and privilege" of being the attorney who drafted the disputed will.


source: Caselaw Access Project

author: GREENLEE, J., FOR THE COURT:

license: Public Domain

text:
    Tremaine WHITTAKER a/k/a Tremaine Whitaker a/k/a Tremaine A. Whittaker a/k/a Tremaine A. Whitaker, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00566-COA
    Court of Appeals of Mississippi.
    August 28, 2018 Rehearing Denied December 11, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN A. SUBER, GEORGE T. HOLMES, Jackson, DANIEL HINCHCLIFF, Clarksdale
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, Jackson
    BEFORE GRIFFIS, P.J., BARNES AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. Tremaine Whittaker challenges his convictions for statutory rape, sexual battery of a minor child, and gratification of lust. The Hinds County Circuit Court sentenced him to serve thirty years for statutory rape, thirty years for sexual battery of a minor child, and fifteen years for gratification of lust, with all three sentences to run concurrently in the custody of the Mississippi Department of Corrections. Whittaker appeals.

¶ 2. He alleges that: (1) cumulative error deprived him of his right to a fundamentally fair and impartial trial; (2) the search warrant deprived him of his Fourth and Sixth Amendment rights provided by the United States Constitution; and (3) the circuit court erred in allowing the testimony from Katherine Bullie and Jessica Jones. We affirm the conviction.

FACTS AND PROCEEDINGS BELOW

¶ 3. On a sunny morning in late spring of 2011, a fourteen-year-old girl was waiting at her school-bus stop. This young girl-whom we will refer to as "A.T." to protect her identity-turned to see an unusual purple car drive around the corner. She recognized the driver. He was Tremaine Whittaker, a thirty-one-year-old man who had married one of her close relatives and whose daughter was A.T.'s best friend. Whittaker drove up to A.T., got out of the car, and forced the young girl inside.

¶ 4. He drove A.T. to an apartment and dragged her into the bedroom, where he inserted his penis into her vagina and mouth.

¶ 5. Whittaker then drove A.T. to her school around noon. He signed her in and he used a different name. Because A.T. had arrived late and Whittaker-not her registered guardian-had dropped her off, school officials notified A.T.'s guardians and law enforcement.

¶ 6. A.T. then relayed the events to Jackson Police Department officials, and was taken to a hospital for examination and to Children's Advocacy Centers of Mississippi for a forensic interview.

¶ 7. In September 2012, a jury found Whittaker guilty of statutory rape, sexual battery of a minor child, and gratification of lust. The circuit court sentenced him to thirty years for statutory rape, thirty years for sexual battery of a minor child, and fifteen years for gratification of lust, with all three sentences to run concurrently.

¶ 8. Whittaker moved for post-conviction relief (PCR) in September 2013. The circuit court denied his PCR motion, and Whittaker sought an out-of-time appeal from this Court. We reversed and remanded for the circuit court to conduct an evidentiary hearing on whether he should be granted an out-of-time appeal. Whittaker v. State , 199 So.3d 1261, 1265 (¶ 11) (Miss. Ct. App. 2016). Relief to allow an out-of-time appeal was granted, and he now appeals.

DISCUSSION

I. Cumulative Error and the Right to a Fundamentally Fair and Impartial Trial

¶ 9. In Mississippi, the cumulative-error doctrine stems from the harmless-error doctrine, found in Mississippi Rule of Civil Procedure 61. Ross v. State , 954 So. 2d 968, 1018 (¶ 138) (Miss. 2007). The cumulative-error doctrine "holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial." Id.

¶ 10. Whittaker asserts that cumulative error deprived him of his right to a fundamentally fair and impartial trial. But he only describes one instance of alleged error: that the circuit court failed to declare a mistrial when the State used the word "rape" in front of the jury.

¶ 11. Whittaker alleges that the circuit court should have declared a mistrial when the State used the word "rape" before the jury because the term is prejudicial and inflammatory. The State, during direct examination of A.T.'s legal guardian, asked, "At some point did you learn that [A.T.] had been raped?" Whittaker objected, the court excused the jury from the courtroom, Whittaker moved for a mistrial, and the court denied the motion for mistrial but sustained the objection, reasoning:

As everyone is aware, I read the indictment to the jury, so the jury's well aware of what the defendant is charged with. One of those charges was statutory rape. I'll also note that the witness has yet to answer any of the-any of the question that was just posed to her.

Whittaker did not seek an instruction to disregard the question that drew the objection.

¶ 12. If an objection is sustained and no request is made that the jury be told to disregard the objectionable matter, then there is no error. Carter v. State , 195 So.3d 238, 243 (¶ 16) (Miss. Ct. App. 2016). Furthermore, the circuit court is in the best position to determine if an alleged objectionable remark is prejudicial. Roundtree v. State , 568 So.2d 1173, 1177 (Miss. 1990). This is why we accord the greatest weight and respect to the court's reasons as stated for the record. Crosby v. State , 760 So.2d 725, 726 (¶ 6) (Miss. 2000).

¶ 13. The record reveals that Whittaker cited no caselaw in his objection to the word "rape." Additionally, Whittaker's brief also fails in caselaw citations. Instead, he merely asserts that the usage of the word caused "the jury [to] look[ ] at the defendant as a monster, essentially confirming their growing suspicion." Frankly, we are not convinced that the word "rape" damaged Whittaker's case. Cf. Lee v. State , 910 So.2d 1123, 1128 (¶ 19) (Miss. Ct. App. 2005) (noting the State's use of the word "criminal" did not strike the Court as "a statement that caused serious and irreparable damage" to the defendant's case). And any error was harmless given the overwhelming weight of the evidence. See Havard v. State , 928 So.2d 771, 797 (¶ 54) (Miss. 2006).

¶ 14. Thus, we find no error; therefore, there was no violation of Whittaker's due-process rights based on the cumulative-error doctrine.

II. Search Warrant

¶ 15. Whittaker challenges the validity of his search warrant. He purports that because the warrant was secured based on statements made by a third party, those statements were hearsay and could not serve as "underlying facts and circumstances." Therefore, he alleges that the warrant was invalid and evidence gathered as a result is inadmissible.

¶ 16. "A search warrant is validly issued when based upon probable cause." Cooper v. State , 93 So.3d 898, 900 (¶ 7) (Miss. Ct. App. 2012) (quoting Phinizee v. State , 983 So.2d 322, 328 (¶ 18) (Miss. Ct. App. 2007) ). And "[p]robable cause means more than a bare suspicion but less than evidence that would justify condemnation." Wagner v. State , 624 So.2d 60, 66 (Miss. 1993). In reviewing a finding of probable cause, we look for a substantial basis for the determination of probable cause. Thompson v. State , 92 So.3d 691, 695 (¶ 7) (Miss. Ct. App. 2012). In doing so, we "look both to the facts and circumstances set forth in the affidavit for search warrant and as well, the sworn oral testimony presented to the issuing magistrate." Williams v. State , 583 So.2d 620, 622 (Miss. 1991).

¶ 17. In Mississippi, "probable cause is determined by assessing the totality of the circumstances."

Phinizee v. State , 983 So.2d 322, 328 (¶ 18) (Miss. Ct. App. 2007) (internal quotation mark omitted) (quoting Rooks v. State , 529 So.2d 546, 554 (Miss. 1988) ). "Under the totality-of-the-circumstances test, the task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the veracity and the basis of the knowledge of persons supplying hearsay information." Thompson , 92 So.3d at 696 (¶ 10) (internal quotation marks omitted) (quoting State v. Woods , 866 So.2d 422, 425 (¶ 10) (Miss. 2003) ). Hearsay can provide a proper basis for a search warrant under certain circumstances. See Walker v. State , 473 So.2d 435, 438 (Miss. 1985).

¶ 18. Here, Detective Hartzog submitted underlying facts and circumstances to support the issuance of the search warrant:

On May 20, 2011, I, Detective Janice Hartzog, received a call from Officer Michael McClendon, I.B.M. 384, in reference to a sexual assault of a 14 year old female. On scene, I talked with the reporting part[y], Tommie Miller. Ms. Miller stated that her niece, [A.T.] was picked up from her bus stop by Tremaine Whitaker, taken to his apartment and raped. Whitaker brought [A.T.] to school around 12PM. Mr. Whitaker is on camera bringing [A.T.] into the school and into the office. [A.T.] stated that Tremaine Whitaker had oral sex on her then made her have oral sex on him, then he rape her. [A.T.] was taken to C.M.M.C. by her aunt, Tommie Miller. An examination was done and the evidence has been logged in at police headquarters.

¶ 19. Upon review, we find that there was substantial evidence to support the judge's finding of probable cause to issue the warrant. Under the totality-of-the-circumstances test, the warrant was justified.

III. Testimony of Katherine Bullie and Jessica Jones

¶ 20. Whittaker alleges that the circuit court should have deemed testimony from both Katherine Bullie-the forensic interviewer employed by Children's Advocacy Centers of Mississippi-and Jessica Jones-the registered nurse employed by Central Mississippi Medical Center-as inadmissible hearsay.

¶ 21. In reviewing the admissibility of testimonial evidence, we apply an abuse-of-discretion standard. Harris v. State , 861 So.2d 1003, 1018 (¶ 41) (Miss. 2003). Furthermore, reversal is only warranted when the abuse prejudices the accused. Cox v. State , 66 So.3d 182, 186 (¶ 19) (Miss. Ct. App. 2010).

¶ 22. Bullie testified to her experiences at Children's Advocacy Centers of Mississippi and to the process she used in conducting her interview of A.T. Furthermore, she testified as to the recommendations that she made after the interview. She did not testify as to A.T.'s statements made during the interview. Thus, Bullie's testimony was not reciting an out-of-court statement but was testifying about what she did. It was not hearsay. See M.R.E. 801(c).

¶ 23. Jones gave testimony, noting that she treated A.T. that day. She read the medical history from A.T.'s medical records: "[A.T.] states the perpetrator, Tremaine Whitaker, met her at the bus stop for school this morning at 6:50 where he forced the patient to get in his vehicle and go to his apartment where he sexually assaulted [A.T.] vaginally as well as orally."

¶ 24. This reading of A.T.'s medical records accords with the recognized hearsay exception that allows statements made for the purposes of medical diagnosis and treatment. M.R.E. 803(4). Our decision in Cox supports this conclusion. Cox addressed whether the admission of a social worker's testimony regarding a rape victim's medical diagnosis under Rule 803(4) was appropriate. Cox , 66 So.3d at 186 (¶ 18). We held that it was, because the statements were made just after the victim was brought to the hospital and in the company of a nurse and police officer, resulting in enough trustworthiness to admit the statements. Id. at (¶ 20). We also find that our decision in Marshall v. State , 812 So.2d 1068 (Miss. Ct. App. 2001), warrants our conclusion. There, we turned to whether a statement made by a child to a medical professional that she was sexually abused and identifying the perpetrator is pertinent to the treatment. Id. at 1075 (¶ 18). We held that it was, particularly to prevent the further abuse of the child. Id. (citing Hennington v. State , 702 So.2d 403, 414 (¶ 44) (Miss. 1997) ).

¶ 25. Applying both Cox 's and Marshall 's common-sense conclusions, we find that Jones's testimony was properly admitted. This issue is without merit.

CONCLUSION

¶ 26. Therefore, we find that cumulative error did not deprive Whittaker of his right to a fundamentally fair and impartial trial. We find that the search warrant was valid and did not deprive Whittaker of his Fourth and Sixth Amendment rights. Furthermore, we find that the circuit court did not err in allowing testimony of Katherine Bullie and Jessica Jones. Thus, we affirm Whittaker's convictions.

¶ 27. AFFIRMED.

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

      We synopsize the event rather than describe it in graphic detail.

      In its brief, the State wavers between search warrants and arrest warrants. This is further confused by the exhibit titled "Underlying Facts and Circumstances," in which Detective Hartzog requested "that a Bench Warrant be issued for the detainment of Tremaine A. Whitaker." But the transcript reveals that Detective Hartzog submitted that document "[i]n order for the judge to know exactly what [she] needed the search warrant for."


author: IRVING, P.J., FOR THE COURT:

text:
    Douglas Lee TOMLIN, a/k/a Douglas Tomlin, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00760-COA
    Court of Appeals of Mississippi.
    September 4, 2018
    ATTORNEY FOR APPELLANT: DOUGLAS LEE TOMLIN (PRO SE)
    ATTORNEY FOR APPELLEE: ABBIE EASON KOONCE, JACKSON
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Douglas Lee Tomlin appeals the dismissal of his motion for post-conviction relief (PCR) by the Circuit Court of Jackson County. Because we find that his PCR motion was untimely, we affirm its dismissal.

FACTS

¶ 2. Tomlin was indicted on June 14, 2007, by a Jackson County grand jury for one count of capital murder and one count of possession of a weapon by a convicted felon. Pursuant to a plea agreement, the State agreed to nolle prosequi the latter charge, and Tomlin agreed to plead guilty to capital murder. During the plea hearing, conducted by the circuit court on November 2, 2007, Tomlin stated that no one had promised him anything in exchange for his guilty plea, and that no one had threatened him to plead guilty. Additionally, the following conversation took place:

COURT: All right. Mr. Tomlin, do you understand that charge of capital murder?
TOMLIN: Yes, ma'am.
COURT: Is that the charge you're now attempting to plead guilty to?
TOMLIN: Yes, ma'am.
COURT: What do you understand is the most you can get for that charge?
TOMLIN: The death penalty.
TOMLIN'S COUNSEL: Your Honor -
COURT: If done by a jury.
TOMLIN'S COUNSEL: By the jury.
COURT: If done by this [c]ourt, what do you understand the maximum to be?
TOMLIN: Life without.
COURT: Life in the Mississippi Department of Corrections without parole?
TOMLIN: Yes, ma'am.
* * * *
COURT: All right. Mr. Tomlin, what do you understand the State is going to recommend in your case?
TOMLIN'S COUNSEL: Your Honor, the recommendation is life without parole, a fine and court cost, and the State to [nolle pros] Count II.
COURT: And is that your understanding?
TOMLIN: Yes, ma'am.
* * * *
COURT: Mr. Tomlin, based upon your plea of guilty to this charge of capital murder, you're hereby sentenced to serve life in the Mississippi Department of Corrections. That sentence is to be served without any benefit of parole or early release. You are to serve every day of it or stay in the penitentiary until you die there.

¶ 3. Subsequently, the circuit court issued an order in which it sentenced Tomlin to life with the possibility of parole or other relief in the custody of the Mississippi Department of Corrections (MDOC). A few days later, the court issued a second order that sentenced Tomlin to life without parole or any other relief in the custody of the MDOC.

¶ 4. On April 15, 2016-nearly nine years after he pleaded guilty-Tomlin filed a PCR motion, asserting two issues: (1) that his sentence was illegal because he had been told that he would be given a sentence of life with the possibility of parole upon pleading guilty to capital murder, and that he did not learn that he had actually been sentenced to life without the possibility of parole until he saw his inmate time sheet at the MDOC; and (2) that his plea of guilty had not been adequately "Boykinized " -i.e., that it was not entered knowingly, voluntarily, or intelligently. Tomlin also argued that he was confused by the court's issuance of the two sentencing orders.

¶ 5. On November 9, 2016, the circuit court dismissed Tomlin's PCR motion on the basis that it was time-barred under Mississippi Code Annotated section 99-39-3 (Rev. 2015). Notwithstanding the time bar, the court provided the following:

[H]aving reviewed the record and the [m]otion, it is clear to the [c]ourt that no relief would be afforded the petitioner. Tomlin answered affirmatively each time the [c]ourt inquired of his understanding of the State's plea recommendation and his parole ineligibility and was, therefore, fully aware of the sentence to be imposed. The record is void of any mistake that would cause the [c]ourt to revisit this conviction or sentence.

¶ 6. Tomlin now appeals, arguing (1) that he agreed to a guilty plea on the basis of receiving a sentence of life with the possibility of parole, and that the court records sustain such an agreement; and (2) that the sentencing court did not have authority to pronounce any term that the jury did not recommend. The State, in response, maintains that Tomlin's PCR motion was properly dismissed as untimely because Tomlin filed it nine years after he was convicted. Further, the State asserts that Tomlin's PCR motion has no merit because (1) Tomlin's guilty plea was knowing and voluntary, and (2) the trial court had the authority to sentence Tomlin as it did.

DISCUSSION

¶ 7. "When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Creppel v. State , 199 So.3d 715, 718 (¶ 8) (Miss. Ct. App. 2016).

¶ 8. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that, in the case of a guilty plea, a PCR motion must be brought "within three (3) years after entry of the judgment of conviction." Section 99-39-5(2) provides some exceptions to this three-year time bar, including where the petitioner can demonstrate either:

(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or (ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.
(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Further, "[i]n addition to the statutory exceptions afforded by [ section 99-39-5(2) ], we have provided that an exception to the procedural bars exists for errors affecting certain constitutional rights." Creppel , 199 So.3d at 719 (¶ 11). "The movant possesses the burden to prove [that] an exception to the three-year statute of limitation applies." Id.

¶ 9. As stated, Tomlin filed his PCR motion on April 15, 2016-nearly nine years after he pleaded guilty on November 2, 2007. As the State points out, Tomlin makes no argument as to any exception allowing for his time-barred PCR motion to survive the procedural bar and does not present any evidence that his fundamental constitutional rights have been violated. Given these facts, we find that Tomlin's PCR motion was properly dismissed as time-barred.

¶ 10. AFFIRMED.

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

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


text:
    MISSISSIPPI DIVISION OF SONS OF CONFEDERATE VETERANS, Appellant v. UNIVERSITY OF MISSISSIPPI, Appellee
    NO. 2017-CA-00546-COA
    Court of Appeals of Mississippi.
    September 4, 2018
    ATTORNEY FOR APPELLANT: MICHAEL CLAYTON BAREFIELD, Long Beach
    ATTORNEYS FOR APPELLEE: J. CAL MAYO JR., Oxford, SARAH KATHERINE EMBRY
    BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Mississippi Division of Sons of Confederate Veterans (SCV) appeals the judgment of the Lafayette County Circuit Court. SCV makes the following arguments: the chancery court erred in transferring the case to the circuit court for lack of subject matter jurisdiction; the circuit court erred in assuming subject matter jurisdiction over the case; the circuit court erred in dismissing the case; and the circuit court erred in ruling that this case is a mandamus action. Finding no error, we affirm.

FACTS

¶ 2. SCV filed its original petition on September 18, 2014, in the Lafayette County Chancery Court, requesting an injunction against the University of Mississippi (UM), in response to UM's diversity plan that set out to move, rename, or recontexualize confederate monuments, street names, and building names on its Oxford, Mississippi, campus. The petition requested that UM be prevented from altering, desecrating, attacking, removing, or renaming any of the confederate monuments or insignia on campus. A Rule 81 Summons was issued for UM, but the record does not show if it was served. Nevertheless, on October 17, 2014, two lawyers entered their appearances on behalf of UM. After almost two years of inactivity, on April 29, 2016, the chancery court entered an order removing the case from its trial docket and dismissing it without prejudice. On May 9, 2016, SCV filed an amended petition for injunction and other relief. By that time, UM had begun moving forward with its diversity plan and had renamed Confederate Drive. It had also placed a placard near a confederate monument on campus to recontexulaize its presence. In its amended petition, SCV requested that those actions be reversed, in addition to requesting that no further changes be made.

¶ 3. UM responded to the amended complaint and filed a motion to dismiss pursuant to Rule 12(b)(1) of the Mississippi Rules of Civil Procedure for lack of subject matter jurisdiction. After responses to the motion to dismiss had been filed and the case had been set for hearing, SCV filed a motion to have the case reinstated. The motion stated that neither party was aware of the dismissal, and with the court's approval, the case was reinstated by agreement between the parties.

¶ 4. According to SCV, at an informal hearing in the judge's chambers, the chancery court found that SCV sought mandamus relief and that it lacked subject-matter jurisdiction to hear the case, as that jurisdiction resides with the circuit court. Rather than dismiss the action, the chancery court entered an order denying dismissal and transferring the action to the circuit court. SCV did not file a motion for reconsideration or any other motions stemming from that order.

¶ 5. After the transfer to the circuit court, UM filed a motion to dismiss for lack of standing. SCV filed a motion to determine jurisdiction and to transfer back to chancery court. After responses and rebuttals to both motions, a hearing was held before the circuit court on March 7, 2017. The circuit court ruled that the case was a mandamus action and not simply a case for injunctive relief, denied SCV's motion, and granted UM's motion to dismiss for lack of standing to bring a mandamus action. SCV appealed.

DISCUSSION

¶ 6. This Court "reviews errors of law, which include summary judgments and motions to dismiss, de novo." Aldridge v. West , 929 So.2d 298, 300 (¶ 6) (Miss. 2006). "Jurisdiction is a question of law that is reviewed de novo. When considering the ruling on a motion to transfer from chancery court to circuit court, our review is de novo." Big River Oilfield Servs. LLC v. Wilcox Drilling Co. , 109 So.3d 123, 125 (¶ 5) (Miss. Ct. App. 2012).

¶ 7. The nature of this controversy is the alleged violation of Mississippi Code Annotated section 55-15-81 (Rev. 2014), which states in pertinent part:

(1) None of the following items, structures or areas may be relocated, removed, disturbed, altered, renamed or rededicated: Any ... War Between the States ... statues, monuments, memorials or nameplates (plaques), which have been erected on public property of the state or any of its political subdivisions, such as local, municipal or county owned public areas, and any statues, monuments, memorials, nameplates (plaques), schools, streets, bridges, buildings, parks preserves, reserves or other public items, structure or areas of the state or any of its political subdivisions, such as, local, municipal or county owned public areas, which have been dedicated in memory of, or named for, any historical military figure, historical military event, military organization or military unit.
(2) No person may prevent the public body responsible for maintaining any of the items, structures or areas described above from taking proper measures and exercising proper means for the protection, preservation, care, repair or restoration of those items, structures or areas. The governing body may move the memorial to a more suitable location if it is determined that the location is more appropriate to displaying the monument.

SCV asserts that UM's diversity plan, which includes recontextulizing confederate monuments and renaming streets, violates section 55-15-81. SCV argues that it requested injunctive relief and not mandamus relief under Mississippi Code Annotated section 11-41-1 (Rev. 2012) (emphasis added), which states:

On the complaint of the state, by its Attorney General or a district attorney, in any matter affecting the public interest, or on the complaint of any private person who is interested , the judgment shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law.

SCV contends that UM is simply acting ultra vires and the mandamus statute is not applicable.

I. Subject-Matter Jurisdiction: Chancery Court

¶ 8. SCV argues that the chancery court erred in transferring the case to the circuit court for lack of subject matter jurisdiction. "It goes without saying that in every lawsuit subject[-] matter jurisdiction needs to be determined, and determinable, at the outset." Penrod Drilling Co. v. Bounds , 433 So.2d 916, 924 (Miss. 1983) (Robertson, J., specially concurring). "[E]very court has jurisdiction to determine its own jurisdiction." Id. "To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought." Derr Plantation Inc. v. Swarek , 14 So.3d 711, 716 (¶ 11) (Miss. 2009). SCV asserts that in both the original petition and the amended petition-it requested injunctive relief-but it did not request relief pursuant to the mandamus statute. As such, the case should have stayed in chancery court.

¶ 9. UM responds that upon the chancery court's entry of the transfer order, SCV had three options: (1) move the chancery court to reconsider under Rule 60(c) of the Mississippi Rules of Civil Procedure, (2) petition this Court for an interlocutory appeal under Rule 5 of the Mississippi Rules of Appellate Procedure, or (3) accept jurisdiction in the circuit court. UM argues that SCV chose option three and simply accepted jurisdiction in the circuit court. , UM contends that SCV cannot now, after final resolution in the circuit court, challenge the chancery court's transfer order.

¶ 10. We agree with UM. After the chancery court entered an order denying dismissal and transferring the action to the circuit court, SCV could have filed a motion for reconsideration or a motion for an interlocutory appeal, but instead, it failed to challenge the judgment from the chancery court transferring the case. This issue is without merit.

II. Subject-Matter Jurisdiction: Circuit Court

¶ 11. SCV asserts that the circuit court erred in assuming subject matter jurisdiction over the case. "[A] failure of subject-matter jurisdiction may be raised at any stage of a proceeding." Crowe v. Smith , 603 So.2d 301, 308 (Miss. 1992). SCV argues that the petition sought injunctive relief and that the chancery court was the appropriate place for it to be heard. However, even assuming that the petition sought some form of mandamus relief, SCV argues that the chancery court would still be able to decide the issue of law, along with the equity issues. SCV requests that this Court remand this case to the chancery court.

¶ 12. We agree with UM's argument that the circuit court correctly determined that it had subject matter jurisdiction over this action and correctly denied SCV's motion to transfer the case back to chancery court. As pointed out by UM, the circuit court had two independent bases for jurisdiction: (1) Mississippi Code Annotated section 9-7-83 (Rev. 2014), which states that the "circuit court shall have jurisdiction of all cases transferred to it by the chancery court ...;" and (2) Mississippi Code Annotated section 11-41-3 (Rev. 2012), which gave the circuit court exclusive jurisdiction because SCV sought mandamus relief. As such, subject matter jurisdiction was proper. This issue is without merit.

III. Circuit Court Dismissal

¶ 13. SCV argues that, assuming this Court agrees that SCV lacks standing to bring a mandamus action, there remained a claim for equitable relief in the form of an injunction to prevent UM from continuing its diversity plan and disturbing further monuments in violation of the law. The circuit judge stated:

I believe that this probably has elements of both mandamus and injunctive relief. University, we want the court to make you remove the plaque and make you rename the street. I think is in the nature of a mandamus action. University, quit doing other things in the future, renaming buildings and that kind of thing. I think is in the nature of injunctive action.

SCV argues that the court was in error for dismissing the entire action for a lack of standing after admitting that part of the requested relief was injunctive in nature and not mandamus. Assuming the circuit court's jurisdiction was proper, it had the right to decide all of the issues before it.

¶ 14. UM responds that SCV seeks to compel it to do or not to do an act, the performance or omission of which section 55-15-81 specifically enjoins. Although SCV did not explicitly apply for mandamus relief in its complaint, "[t]he reviewing court must look to the substance, not the form, of a claim to determine whether that claim is legal or equitable." Derr Plantation Inc ., 14 So.3d at 716 (¶ 11). As is discussed more fully below, we agree that SVC, despite its argument to the contrary and the nomenclature used, sought mandamus relief; as such, the circuit court was correct in dismissing the entire action.

IV. Mandamus Action

¶ 15. Finally, SCV argues that the circuit court erred in ruling that this case was a mandamus action. In order to give context to the difference between mandamus relief and injunctive relief, SCV cites Madison County v. Mississippi State Highway Commission , 191 Miss. 192, 198 So. 284, 287 (1940), in pertinent part:

In 38 C. J., page 545, par. 12, it is said: "Injunctions and mandamus are not interchangeable, but present several well defined points of difference. Mandamus is strictly a legal remedy while the remedy of injunction is solely equitable and cognizable in no other forum than a court of equity. Also, mandamus is a remedy to compel action while injunction is a remedy to prevent action, and while there are a limited number of cases in which the rule is apparently denied altogether, or greatly limited, it is very generally held that mandamus is not the proper remedy where the relator does not ask that defendant be compelled to do an act, but demands on the contrary that he be forbidden to do certain acts, and that mandamus cannot be made to perform the office of an injunction. And on the other hand, mandamus and not injunction is ordinarily the proper remedy where nothing is sought but the enforcement of a legal duty, although under some circumstances a mandatory injunction will issue to compel the performance of a duty of this character if for any reason mandamus is not available.

SCV asserts that, at the time the original petition was filed, it did not seek to compel any action by UM, but simply demanded that UM be forbidden from taking certain acts in violation of section 55-15-81. Before the filing of the amended complaint, UM had begun to implement its diversity plan and, according to SCV, had violated section 55-15-81 in the process. SCV asserts that jurisdiction is determinable as of the date of the filing of an action; therefore, UM should be enjoined not only from implementing the remaining aspects of its diversity plan in the future, but should also be enjoined from continuing its violations of section 55-15-81, which commenced subsequent to the filing of the complaint. It contends that the mandamus statute is in no way applicable, as the case at bar does not seek to require UM to perform an official duty enjoined upon it by law or an official act that pertains to its duties as a state university. Rather, the nature of this action, according to SVC, is to prevent UM from violating section 55-15-81, as to which UM has no official duty, yet acted in blatant violation thereof, contrary to law.

¶ 16. UM responds that to bring a mandamus action, a petitioner must satisfy four essential elements:

(1) the petitioner must be authorized to bring the suit, (2) there must be a clear right in petitioner to the relief sought, (3) there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel, and (4) there must be no other adequate remedy at law. In addition to the four essentials, petitioners for writs of mandamus must also show that they have an interest separate from or in excess of that of the general public in order to have standing to seek the writ.

Bennett v. Bd. of Sup'rs of Pearl River Cty. , 987 So.2d 984, 986 (¶ 6) (Miss. 2008). UM asserts, and this Court agrees, that SCV had no interest separate from or in excess of that of the general public. This matter affects the public interest and may be brought, if at all, only by the Attorney General or a district attorney. We find that SCV's members have no private right that entitles them to require that UM refrain from implementing its diversity plan. This issue is without merit.

¶ 17. AFFIRMED.

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

      The original petition lists the Petitioner as "Mississippi Division Sons of Confederate Veterans." Later, an amended petition lists the Petitioner as "Mississippi Division of the United Sons of Confederate Veterans." The final order lists the Petitioner as "Mississippi Division United Sons of Confederate Veterans." For clarity, this opinion will address the petitioner as "Mississippi Division of Sons of Confederate Veterans."

      "An order transferring a case to another court will become effective ten (10) days following the date of entry of the order.... If a motion for reconsideration is filed, all proceedings will be stayed until such time as the motion is ruled upon ...." M.R.C.P. 60(c).

      "A party aggrieved by the trial court's grant or denial of a motion to transfer may seek relief by pursuing an interlocutory appeal." Derr Plantation Inc. v. Swarek , 14 So.3d 711, 716 (¶ 10) (Miss. 2009).

      The circuit court considered and denied SCV's "Motion to Determine Jurisdiction and Transfer to Chancery Court."

      "If there is some doubt, the case is better tried in circuit court because it is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law." Big River Oilfield Servs. LLC , 109 So.3d at 126 (¶ 12).

      Article 6 recognizes the circuit court as a court of general jurisdiction and the chancery court as one of limited jurisdiction. To determine whether a court has subject matter jurisdiction, we look to the face of the complaint, examining the nature of the controversy and the relief sought. If it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, then a chancery court may hear and adjudge legal claims. Conversely, if the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction and adjudge pendant equitable claims.
      Big River Oilfield Servs. , 109 So.3d at 126 (¶ 11).