author: CHAMBERLIN, JUSTICE, FOR THE COURT:

text:
    MISSISSIPPI SAND SOLUTIONS, LLC v. Bessie OTIS, Sherry Fisher, Connie Fisher Walker, Dennis Roy Holmes, Robbie Jean Holmes Ware, Maggie Fisher, Greg Cooper, Shirley Fisher Gray, Horace Darryl Fisher, Derrick Fisher, Ray W. Fisher, Sr., Larry Fisher, Michael C. Fisher, Sr., Cornelius Fisher, Sr., Diane Fisher Williams, Sharon Fisher Hill, Sheila Fisher Keys, Bridgett Winters, Ledoria Fisher Baldwin, Johnny L. Wright, James Fisher, Jr., Jimmy L. Wright, Membsey Fisher, Deceased, and Maggie Fisher, Deceased
    NO. 2017-CA-00013-SCT
    Supreme Court of Mississippi.
    May 17, 2018 Rehearing Denied August 9, 2018
    ATTORNEY FOR APPELLANT: KENNETH B. RECTOR
    ATTORNEY FOR APPELLEES: KEVIN E. GAY
    BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
   CHAMBERLIN, JUSTICE, FOR THE COURT:

¶ 1. Mississippi Sand Solutions, LLC ("MSS") appeals the Warren County Chancery Court's decree that MSS does not have an easement of any type across property owned by a group of heirs, the "Fisher Property." MSS's predecessors used the alleged easement across the Fisher Property to access another parcel of land from which they mined gravel and sand throughout the years. The Fisher heirs, who owned the Fisher Property, claimed that this access was by permission, evidenced by lease agreements with MSS's predecessors. As a result, the Fisher heirs filed a declaratory action against MSS, seeking to have the alleged easement declared invalid. After a trial, the chancellor ruled that MSS did not have an easement across the Fisher Property. MSS now appeals. Given the standard of review and the sufficient evidence in the record, we affirm the chancellor's judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. The parcel of land subject to this suit is a 99-acre tract in Warren County, Mississippi. Membsey and Maggie Fisher purchased the Fisher Property in 1935. To the east, the Fisher Property is bordered by a tract of land that is owned by C.J. Fisher (the "C.J. Fisher Property"). To the west, the Fisher Property is bordered by a parcel of land that was purchased by MSS in 2014 (the "MSS Property").

¶ 3. C.J. Fisher Drive is a private road that runs westerly from Mississippi Highway 27 across the C.J. Fisher Property. The road continues from the C.J. Fisher Property across the Fisher Property and into the MSS Property. The use of the portion of C.J. Fisher Drive that crosses the Fisher Property is the subject of the easement dispute on appeal. Unless otherwise noted, our reference to C.J. Fisher Drive is that portion of the road which crosses the Fisher Property.

¶ 4. The Fisher heirs were the heirs of Membsey and Maggie Fisher. The seven initial Fisher heirs were C.J. Fisher, Maggie Lee Otis, Frank J. Fisher, Mabel Peterson, Horace M. Fisher, Membsy Fisher and James M. Fisher. Membsey predeceased Maggie, and Maggie passed away in 1962. Upon Maggie's death, Peterson was appointed as the administratrix of the Fisher Estate. The Fisher heirs also include Robbie Jean Holmes Ware and Dennis Roy Holmes-the children of Peterson-as well as the other six initial heirs' children who were joined in this action (collectively, the "Fisher Heirs").

¶ 5. Throughout the years, W.J. Runyon used C.J. Fisher Drive to access the MSS Property (before it was owned by MSS) and the Fisher Property to mine gravel from both properties. Ware testified that Peterson handled all of the leases concerning the Fisher Property. She maintained that she saw "papers" and a lease agreement that provided that Runyon could remove sand and gravel from the Fisher Property. The chancellor, in the final amended decree, noted the existence of two separate mineral leases (one before November 1967 and one in 1968) between various Fisher Heirs and Runyon. Ware also testified that the Fisher Estate received income from the leases from Runyon throughout the years. Janice Turner, one of C.J. Fisher's daughters, testified that her father also received compensation from Runyon.

¶ 6. At trial, Runyon's son-in-law John Frazier also testified that Runyon used C.J. Fisher Drive to transport gravel from the pits on the MSS Property across the Fisher Property. To weigh the gravel trucks, Runyon installed scales on C.J. Fisher Drive on the Fisher Property. Near the scales, Runyon had a small office with fuel pumps to fuel the trucks. During busy times, one of Runyon's employees was stationed there.

¶ 7. Frazier agreed that Runyon did have a lease on the Fisher Property that allowed Runyon to mine sand and gravel. According to Frazier, the only entities to use the road from 1972 to 2002 were Runyon and the Fisher Heirs. To Frazier's knowledge, the Fisher Heirs never objected to Runyon's use of the road.

¶ 8. Pete Buford claimed to have purchased the MSS Property in 2002. He admitted, though, that the property was placed in the name of his "business partner" R.O. Henley, who was Buford's nephew. The 2002 deed reflects that Runyon's widow transferred the MSS Property to Henley. While Buford claimed that he "was paying the notes" and that he paid the purchase price for the MSS Property, he admitted that there was no legal document to show his claimed ownership interest in the MSS Property until 2008. Buford also admitted that he did not disclose his claimed interest in the property to his wife during their divorce because he "didn't want to muddy the waters." According to Buford, Henley "didn't do anything" other than hunt on the MSS Property. In 2008, Henley transferred the MSS Property to B.P. Buford, LLC.

¶ 9. From 2002 until 2014, Buford mined sand, gravel and dirt on the MSS Property. During this period, he used C.J. Fisher Drive to access the property. Buford testified that he believed he had a prescriptive easement over the Fisher Property.

¶ 10. Early in 2002, Buford testified that one of the Fisher Heirs built a gate across C.J. Fisher Drive. He maintained that he "snatched it down" with his truck and a chain. Buford claimed that, fifteen minutes after he pulled the gate down "Mr. Fisher showed up and he said, who tore the gate down and I said I did. He said, I'm going to put it back up. I said, well, I'm going to tear it back down." At first, Buford maintained that the gate was on the Fisher Property-not the MSS Property. He claimed it was somewhere between the scales and Highway 27. On cross-examination, when asked whether the gate was on the Fisher Property or the C.J. Fisher Property, Buford responded, "I don't have any idea. I assume it was between the two pieces of Fisher property." After this incident, no one built another gate.

¶ 11. James Harrell, one of Buford's former truck drivers, testified concerning the gate incident. Harrell testified that Buford did pull down the gate that was across C.J. Fisher Drive about two weeks after Buford had begun operations on the MSS Property. Harrell admitted that he was Buford's friend and that this was the first time since 2002 that he had been asked to recollect the incident. Harrell also testified that the gate that Buford pulled down was the gate on his own property line.

¶ 12. In 2013, Pete Buford sued Fisher Heirs, seeking judicial recognition of an easement over the Fisher Property. Buford later dismissed the suit, but Ware testified that the dismissal was after the Fisher Heirs met and withdrew permission for the use of the portion of C.J. Fisher Drive that crossed the Fisher Property to any other entities.

¶ 13. B.P. Buford, LLC, conveyed the MSS Property to MSS in 2014. Under the deed of trust, MSS's obligation to pay Buford $32 million did not begin until MSS began to sell sand and gravel from the MSS Property.

¶ 14. The Fisher Heirs brought their complaint for declaratory judgment against Buford, Buford Partners, LLC and John Does 1-10 on August 1, 2014, in Warren County Chancery Court. The Fisher Heirs amended their complaint on October 7, 2014, to add MSS. They sought to have the chancery court declare the easement over the C.J. Fisher Property and the Fisher Property invalid.

¶ 15. MSS responded with its answer and counterclaim against the Fisher Heirs. MSS claimed an easement across the C.J. Fisher Property and the Fisher Property by express grant or, in the alternative, by prescription. The Fisher Heirs answered the counterclaim and requested that it be dismissed.

¶ 16. The suit went to trial on August 1, 2016. At trial, MSS stipulated that it did not have an express easement over the Fisher Property. After trial, the chancellor entered a final decree. Upon reconsideration, the chancellor issued an amended final decree. The original decree and the amended final decree, which is discussed below, both found that MSS did not have any type of easement across the Fisher Property.

¶ 17. MSS now appeals from the chancellor's determination that it does not have an easement by prescription or necessity. In its brief, MSS raises ten issues. For clarity, we re-frame the issues on appeal as follows:

I. Did the chancellor abuse her discretion in finding that MSS did not have a prescriptive easement across the Fisher Property?
II. Did the chancellor abuse her discretion in finding that MSS did not have an easement by necessity across the Fisher Property?

STANDARD OF REVIEW

¶ 18. This Court has described its standard of review of a chancellor's decision:

"A chancellor's findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. However, the Court will not hesitate to reverse if it finds the chancellor's decision is manifestly wrong, or that the court applied an erroneous legal standard. A chancellor's conclusions of law are reviewed de novo."

Paw Paw Island Land Co. v. Issaquena & Warren Ctys. Land Co., LLC , 51 So.3d 916, 923 (Miss. 2010) (quoting Lowrey v. Lowrey , 25 So.3d 274, 285 (Miss. 2009) ).

ANALYSIS

I. Did the chancellor abuse her discretion in finding that MSS did not have a prescriptive easement across the Fisher Property?

¶ 19. MSS argues that the chancellor abused her discretion in determining that MSS was not entitled to an easement by prescription. MSS maintains it was entitled to a presumption of hostility under McCain v. Turnage , 238 Miss. 44, 117 So.2d 454, 455 (1960). In the alternative, MSS claims Buford's use of C.J. Fisher Drive from 2002 to 2014 satisfied the hostility requirement of a prescriptive easement.

¶ 20. This Court has described the law governing prescriptive easements:

To establish a prescriptive easement, use must be proven by clear-and-convincing evidence. Each of the following elements must be met by the same clear and convincing standard. The use must be: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years. Sharp v. White , 749 So.2d 41, 42 (Miss.1999). Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription since adverse use is lacking. Id. Whether use is prescriptive or permissive is ordinarily a question of fact to be determined by the chancellor. Id. at 43.

Paw Paw Island , 51 So.3d at 923-24. Here, the chancellor found that MSS had failed to show that its use was hostile to the Fisher Heirs.

¶ 21. Sufficient record evidence supports the chancellor's conclusion such that we cannot say that this finding by the chancellor was manifestly wrong. As her last finding of fact, the chancellor determined that "[t]he initial use by [MSS's] predecessors was permissive." Ware testified that she had seen lease documents that demonstrated that the Fisher Property was used with permission. In addition, the chancellor recognized that a lease between Runyon, C.J. Fisher and others was referenced in an assignment of a gravel and sand lease that Peterson accepted in November 1967. The chancellor also found another mineral lease between Runyon and the Fisher Heirs in 1968. Frazier also admitted that Runyon leased the Fisher Property from the Fisher Heirs. Further, as the chancellor recognized, Frazier's ineffectual attempt to obtain an express easement over the Fisher Property evidences that the property was used by permission. Last, Ware testified that the Fisher Estate received regular payments from Runyon, and Turner maintained that Runyon paid her father C.J. Fisher throughout the years.

¶ 22. The evidence of the various lease agreements also is proof of MSS's predecessors' belief that they needed the Fisher Heirs' permission to use C.J. Fisher Drive. At the least, Runyon and Frazier functioned under the belief that they needed permission to use C.J. Fisher Drive. In other words, they did not believe they had a claim of right over the alleged easement. As such, we cannot say that the chancellor erred in determining that the initial use of C.J. Fisher Drive over the Fisher Property was by permission.

¶ 23. MSS's argument that the lease on the Fisher Property was only to remove gravel from the Fisher Property and not to transport gravel from the MSS Property across the Fisher Property is unavailing. It was undisputed at trial that Runyon installed and regularly used scales and a small office on the Fisher Property for his entire operation on the Fisher Property and the MSS Property. Thus, the chancellor's finding that "[t]he use in this matter was either implied by the lease or licensed by the lease" is not manifestly wrong.

¶ 24. In her conclusions of law, the chancellor stated, "At the beginning of the use of the Fisher Heirs['] land, there was a lease by W.J. Runyon and Son to recover sand and gravel from the heir land." This conclusion that a lease existed at the beginning of the use of C.J. Fisher Drive is unsupported by the evidence but does not affect our disposition. The chancellor, though, correctly found that "[i]f permission is granted to use the road, as was here, that permission will never ripen into a prescriptive easement." This conclusion is supported by sufficient record evidence such that we cannot day that it is manifestly wrong.

¶ 25. MSS claims the chancellor erred by not applying the presumption of hostility espoused in McCain . McCain , 117 So.2d at 455. In McCain , this Court held that "where ... a use of the lands of another for roadway purposes has been open, visible, continuous, and unmolested since some point in time anterior to the memory of aged inhabitants of the community, such use will be presumed to have originated adversely." Id. In McCain , we recognized that

The road, the right to whose use across appellees' land is the subject of this case, has been used by appellants and their predecessors in title, and by other persons and members of the public who had business in the neighborhood, openly, visibly, continuously, and without permission of appellees or their predecessors in title, and without molestation, for more than fifty years.

Id. at 454-55.

¶ 26. We find MSS's argument that the McCain presumption should apply here unpersuasive. The McCain Court narrowly tailored the presumption to the record before it. Id. at 454-55. There, the use had been "without permission of appellees or their predecessors in title, and without molestation, for more than fifty years." Id. at 455. Further, this evidence, in McCain , was "without dispute" in the record. Id. at 454. In contrast, the record here is disputed as to initial permission and conceded against MSS as to subsequent permission. Unlike the claimant in McCain , it is undisputed in the record that MSS's predecessors-for a significant period of time-used C.J. Fisher Drive with permission.

¶ 27. Even if the McCain presumption should have been applied, any error on the part of the chancellor does not affect the outcome of the case, as the 1967 lease would have rebutted the presumption. While MSS cites Wilson v. McElyea , 815 So.2d 462, 464-465 (Miss. Ct. App. 2002), for the proposition that unilateral permission cannot subsequently convert hostile intent, the lease would have been a bilateral acknowledgment of permission between the parties. Further, MSS had the burden to establish that it was entitled to the presumption and the burden to establish that the presumption satisfied the prescriptive period. On this record, there is insufficient evidence to find that the chancellor would have abused her discretion had she first applied the McCain presumption and then found that the 1967 lease converted the hostile intent to permissive use by MSS's predecessors.

¶ 28. Also, the chancellor did not err in determining that Buford's account of having to tear down a gate on the Fisher Property was insufficient to show hostility. Again, the elements of a prescriptive easement must be proven by "clear-and-convincing evidence." Paw Paw Island , 51 So.3d at 923-24. It is not at all clear from the record where this gate was on the various properties. Buford admitted that he did not know which specific piece of property that the gate was on, and Harrell testified that the gate was on Buford's property line. Further, even Buford was unsure as to which Fisher Heir had erected the gate. He also claimed to have never seen him before or after the event but knew that he had passed away.

¶ 29. Sufficient evidence in the record supports the chancellor's findings and conclusions of law concerning the prescriptive easement. We cannot say that the chancellor erred in her ruling; thus, we affirm the determination that MSS does not have a prescriptive easement.

II. Did the chancellor abuse her discretion in finding that MSS did not have an easement by necessity across the Fisher Property?

¶ 30. MSS contends that it never has asserted a claim for an easement by necessity. It argues that the chancellor erred in ruling on the issue. The Fisher Heirs acknowledge MSS's claim on appeal that it never sought an easement by necessity and do not argue that MSS sought such an easement at trial.

¶ 31. In their complaint, though, the Fisher Heirs sought "declaratory relief to properly adjudicate that subject easement over the property is invalid." The Fisher Heirs claimed that they "would further show that the Defendants are not entitled to an easement by necessity as there is other access to the Defendant[']s property." In its counterclaim, MSS claimed an easement, first, by express grant (which it later abandoned during the trial) and, second, by prescription. MSS framed its claim of an express easement with some terms that suggested an easement by necessity but did not claim an easement by necessity. At trial, evidence was introduced concerning alternative access to the MSS Property. In the final decree, the chancellor found:

Defendants also fail to establish an easement by necessity because there are other ways to access the pit. In addition, and importantly, Defendants failed to prove the pit and the Fisher Heir property were once joined as a common property. Burnham v. Kwentus , 174 So.3d 286 (Miss. Ct. App. 2015).

¶ 32. "An easement by necessity requires proof that (1) the easement is necessary; (2) the dominant and servient estates were once part of a commonly owned parcel; (3) the implicit right-of-way arose at the time of severance from the common owner." Borne v. Estate of Carraway , 118 So.3d 571, 584 (Miss. 2013) (citing Leaf River Forest Prods., Inc. v. Rowell , 819 So.2d 1281, 1284 (Miss. Ct. App. 2002) ).

¶ 33. We affirm the chancellor's determination that MSS did not have an easement by necessity, as the Fisher Heirs requested that the chancellor "adjudicate the subject easement" and the record supports the chancellor's ultimate conclusion. While the chancellor focused on the lack of evidence as to the second element of an easement by necessity, we will focus on the proof offered by the Fisher Heirs to demonstrate that the first element was not met. Sufficient record evidence of alternative access to the MSS Property exists so that we cannot say that the chancellor was manifestly wrong.

¶ 34. At trial, the Fisher Heirs introduced a tax map that demonstrated that C.J. Fisher Drive crossed the MSS Property, continued through two other parcels and joined Halls Ferry Road. Frazier also testified that, at some point in the past, there had been an alternative access to the MSS Property. Frazier maintained that this access was through another entity's property and had not been used since Runyon's company shut down in 2001 or 2002. Frazier conceded that Runyon had a "right-of-way" with the property owner in the past. Buford supported Frazier's testimony that someone else owned the access to the southern side of the MSS Property. Buford claimed that there was "[n]ot ... a road, but it's a path down through there." Further, Dennis Roy Holmes, Peterson's son, testified that a gravel road was visible from Halls Ferry Road, leading to the gravel pits on the MSS Property. In light of this record evidence, we cannot determine that the chancellor erred in ruling that MSS did not have an easement by necessity.

¶ 35. MSS hotly contests the introduction of the tax map by the Fisher Heirs' counsel. In its statement regarding oral argument, MSS claims that counsel for the Fisher Heirs knew or should have known that the tax map was inaccurate before entering it and relying on it. MSS also claims that Holmes "testified falsely that the road existed." These claims, however, are not properly before us. MSS did not make any contemporaneous objection to the evidence, did not cross-examine Holmes and did not raise any of these issues in its post-trial motion to reconsider the judgment. MSS now claims that it could not have objected to the tax map, as the Fisher Heirs introduced it for the purpose of proving the title to the property. This fact did not relieve MSS's duty to object to the use of the map when it was used outside the purpose for which it was introduced. Further, MSS did file a motion to reconsider the judgment but did not raise any issues concerning the tax map or other alternative-access evidence. See Anderson v. LaVere , 136 So.3d 404, 410 (Miss. 2014) ("We will not consider issues raised for the first time on appeal.").

¶ 36. The issue of an easement by necessity, while not thoroughly presented by the parties, was before the chancellor for determination. The record contains sufficient evidence such that we cannot find that the chancellor was manifestly wrong in determining that MSS did not merit an easement by necessity. Thus, we affirm the chancellor's decree here.

CONCLUSION

¶ 37. For the above reasons, we affirm. Sufficient evidence exists in the record to support the chancellor's determination that MSS's predecessors did not obtain an easement by prescription. The record also is sufficient to support the chancellor's finding that MSS did not merit an easement by necessity.

¶ 38. AFFIRMED.

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

      The chancellor apparently took judicial notice of her court file. See M.R.E. 201. On appeal, no party raises any error concerning the chancellor doing so.

      There was a question at trial as to why Runyon paid C.J. Fisher. At her deposition, Turner testified that the checks from Runyon were for C.J. Fisher periodically to visit the asphalt plant on the MSS Property to see if the burners were still lit. At trial, Turner testified that the compensation continued past the period of time that C.J. Fisher was checking the burners.

      In his testimony, Frazier wavered on this point. Frazier initially testified that there was a lease on the Fisher Property before he started working for Runyon in 1972. Later, when asked on cross-examination if a lease existed between Runyon and the Fisher Heirs, Frazier responded, "Could be. I don't know. I probably haven't seen it." On redirect examination, Frazier again affirmed that Runyon did have a lease with the Fisher Heirs.

      The record reflects that Runyon initially had leased the MSS Property. Frazier bought the MSS Property in 1988 and sold it to Runyon. Runyon's wife received the property, presumably after Runyon died.

      MSS argues that this Court should find that Buford held the MSS Property in "constructive trust" from 2002 to 2008. The record testimony is clear, though, that Buford's acquisition of the property in Henley's name was in order to defraud his wife in their divorce action. Thus, we decline to find a constructive trust. Further, there is no proof in the record-other than Buford's testimony-that he financed the purchase. Last, the issue, as discussed below, does not affect the disposition of the case.

      The record is unclear as to who "Mr. Fisher" was. On cross-examination, Buford stated, "He was a Fisher, but I don't remember his name." Buford stated that he never saw him again and that he understood "that he's deceased." He also testified, "It was a real elderly fellow. He was one of the original Fishers. He told me his name, but I don't remember. I never seen him before or since."

      Buford and Buford Partners, LLC, were dismissed by agreed order.

      The chancellor granted MSS's counterclaim to the extent that it possessed an easement across the C.J. Fisher Property, as C.J. Fisher had granted an express easement to John Frazier in 1988. No party appealed this portion of the judgment.

      According to Ware, Runyon used C.J. Fisher Drive by permission only. In fact, Ware testified that all use of C.J. Fisher Drive by any party throughout the years was by permission. This portion of Ware's testimony, though, is subject to exclusion due to MSS's objection on the grounds of hearsay, as Ware admitted that she was not present when permission was given to Runyon to use C.J. Fisher Drive by means of the lease agreements and was told of the permission only after the fact by Peterson. As the statements are unnecessary to support the chancellor's decision, we decline to address whether or not the chancellor properly admitted them under the catchall exception to the hearsay rule. See M.R.E. 804(b)(5). Even without considering this testimony, there is sufficient evidence to affirm the chancellor's decision.

      While Ware testified that her knowledge of a lease between the Fisher Heirs and Runyon was "[b]ased on papers I'd seen," she did not testify when she had seen the lease.

      The chancellor's finding that MSS had offered no proof at trial as to the second element improperly shifted the burden of proof from the Fisher Heirs to MSS. The Fisher Heirs bore the burden at trial on this issue, as they requested that the issue of an easement by necessity be adjudicated. The Fisher Heirs, though, ultimately met their burden by entering evidence that showed that the first element of an easement by necessity was not met.

      The Fisher Heirs certainly did not address each element of an easement by necessity. This was unnecessary for them to succeed, however, as they sought to have the chancellor determine that an easement by necessity was not merited. While there may be questions as to whether the alternative access exists, what condition it is in and whether MSS has permission or an easement over the other landowner's property, there is sufficient evidence in the record before us concerning alternative access. Thus, we are unable to find that the chancellor was manifestly wrong in determining that MSS had alternative access to the MSS Property. It is bedrock law that " '[a] chancellor sits as a fact-finder and in resolving factual disputes, is the sole judge of the credibility of witnesses.' " Tice v. Shamrock GMS Corp. , 735 So.2d 443, 444 (Miss. 1999) (quoting Murphy v. Murphy , 631 So.2d 812, 815 (Miss. 1994) ).


source: Caselaw Access Project

license: Public Domain

text:
    SHARKEY ISSAQUENA COMMUNITY HOSPITAL, Appellant v. Alan ANDERSON and Linda Anderson, Appellees
    No. 2014-IA-00465-SCT
    Supreme Court of Mississippi.
    January 30, 2018
    EN BANC ORDER
   MICHAEL K. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT

¶ 1. The motion for rehearing filed by the Appellant is granted. The previous opinions are withdrawn and this order is substituted therefor.

¶ 2. The Court was divided equally four-four. Consequently, the judgment of the Circuit Court of Sharkey County should have been affirmed for this reason. See Durant v. Essex Co. , 74 U.S. (7 Wall.) 107, 19 L.Ed. 154 (1868) ; Hertz v. Woodman , 218 U.S. 205, 206, 30 S.Ct. 621, 621, 54 L.Ed. 1001 (1910) ; Pascagoula Nat'l Bank v. Barq , 23 So.2d 530, 530 (Miss. 1945) ; Hawkins v. Cmty. Bank of Raymore , --- U.S. ----, 136 S.Ct. 1072, 194 L.Ed. 2d 163, reh'g denied , --- U.S. ----, 136 S.Ct. 2534, 195 L.Ed. 2d 860 (2016).

¶ 3. Accordingly, we remand this case for further proceedings.

SO ORDERED.

NOT PARTICIPATING: MAXWELL, J.


author: CARLTON, J., FOR THE COURT: LEE, C.J., DISSENTING: WESTBROOKS, J., DISSENTING:

text:
    MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS, Appellant v. Candace WEBB, Thomas Harper, and Kathleen D. Webb, Appellees
    NO. 2015-CA-00578-COA
    Court of Appeals of Mississippi.
    April 18, 2017 Rehearing Denied August 15, 2017
    ATTORNEYS FOR APPELLANT: STEPHEN GILES PERESICH, JOHANNA MALBROUGH MCMULLAN
    ATTORNEYS FOR APPELLEES: JOE SAM OWEN, ROBERT P. MYERS JR., THOMAS M. MATTHEWS III
    EN BANC.
   CARLTON, J., FOR THE COURT:

¶ 1. Candace Webb, the legal guardian for minor Shane Webb, and Kathleen Webb, individually and on behalf of the wrongful-death beneficiaries of Christopher Webb (collectively, the Webbs), filed suit against the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) under the Mississippi Torts Claim Act (MTCA), claiming that MDWFP conservation officers acted with reckless disregard for the safety of Shane, Christopher, and other boaters using the Tchoutacabouffa River in Harrison County, Mississippi. See Miss. Code Ann. § 11-46-9 (Rev. 2012) (discussing governmental immunity from liability).

¶ 2. The MDWFP filed a motion to dismiss or, alternatively, for summary judgment, on October 27, 2010, and asserted that exemptions under the MTCA barred the Webbs' claims. On November 5, 2010, the cases were consolidated. Following discovery, the MDWFP filed a supplemental motion to dismiss and/or, alternatively, for summary judgment.

¶ 3. The circuit court denied summary judgment on July 25, 2012, and the Mississippi Supreme Court subsequently denied the MDWFP's petition for interlocutory review. Following a two-day bench trial on February 18-19, 2014, the circuit court held that the MDWFP officers acted in reckless disregard for the safety of others when the officers told a boater to move to a safer area after they stopped him, but the suspect suddenly fled and caused a fatal boat collision. The circuit court conducted a hearing on damages on November 5, 2014, and awarded damages to the Webbs.

¶ 4. The MDWFP now appeals, asserting that the circuit court erred in finding that the MDWFP officers acted with reckless disregard for the safety of others by ordering a suspect to a safer location to conduct a "stop." Finding error, we reverse the judgment of the circuit court and render judgment in the MDWFP's favor.

FACTS

¶ 5. On August 22, 2009, MDWFP conservation officers Barry Delcambre and Michael Thrash witnessed Donald Bernius speeding in a boat on the Tchoutacabouffa River. The officers each navigated their separate patrol boats into the river to investigate and stop Bernius. Bernius saw the officers and came to an initial stop in the middle of the river.

¶ 6. According to the officers' testimony at trial, they recognized that their boats and Bernius's boat were stopped in a "dangerous area" of the river. The officers testified that this particular area of the river, known as Bend 2, has blind spots where boaters heading from either direction cannot see other boaters approaching from the opposite direction. The officers explained that, as a result of stopping and approaching Bernius, the three boats were situated in a position so as to occupy most of the width of the river, which, according to the officers, created an eminent hazard for other boaters. As a result, Officer Delcambre instructed Officer Thrash to have Bernius move to the nearby straightaway down the river to provide a safer location for them to question Bernius. Officer Delcambre proceeded ahead of Officer Thrash and Bernius with the intention of blocking oncoming traffic.

¶ 7. Officer Thrash ordered Bernius to follow them out of Bend 2 into the straightaway, and Bernius agreed to comply with the instructions. Officer Thrash then proceeded to the straightaway after Officer Delcambre so that Bernius could follow him. According to Officer Thrash, Bernius followed him a short distance, and then Bernius abruptly turned his vessel 180 degrees and fled in the opposite direction. Officer Thrash then signaled to Officer Delcambre, and the officers pursued Bernius.

¶ 8. At the same time, John Joachim was traveling down the river in his boat in the opposite direction from Bernius. Joachim provided in his statement that he observed Bernius speeding and recklessly driving on the wrong side of the river. As Bernius's boat approached, Joachim had to use evasive maneuvers to avoid a collision with Bernius. After passing Joachim's boat, Bernius collided with a boat operated by Christopher. The collision resulted in Christopher's death and injuries to Shane, who was a passenger in Christopher's boat.

¶ 9. Neither Officer Delcambre nor Officer Thrash witnessed the collision. Once the officers arrived at the scene of the accident, they began rescue procedures, tended to the injured, alerted authorities, and assisted Bernius out of the water. Bernius was treated at Biloxi Regional Medical Center. Approximately two hours after the accident, a blood sample was drawn from Bernius, which indicated a .25 percent blood-alcohol concentration (BAC) level. Bernius later pled guilty to boating under the influence (BUI) and causing death and injury. Bernius is currently serving a twenty-year sentence in prison. As the record reflects, prior to the incident, Bernius was a paraplegic and wheelchair bound.

¶ 10. In connection with the boating accident, the Mississippi Department of Marine Resources (MDMR) investigated Officer Delcambre's and Officer Thrash's conduct. After interviewing Officer Delcambre and listening to an interview of Bouie, the passenger in Bernius's boat, the MDMR determined that Officers Delcambre and Thrash "acted completely within the scope of their duties ...." The MDMR concluded "that the only people responsible for this boating accident were the people involved in the actual accident." The Webbs subsequently filed suit against the MDWFP under the MTCA, claiming that Officers Delcambre and Thrash acted with reckless disregard for the safety of others when they failed to detain Bernius and instructed him to move to a safer location.

¶ 11. At a bench trial held on February 18 and 19, 2014, Officers Delcambre and Thrash testified to their knowledge and understanding of the MDWFP's Standard Operation Procedures (SOPs) for handling BUI situations. Both officers testified that, in their initial contact with Bernius, his demeanor and handling of his vessel, among other things, failed to indicate he was impaired. Officer Thrash specifically testified that, at the time, he had no reasonable suspicion to believe Bernius was intoxicated.

¶ 12. Officers Delcambre and Thrash testified that their first priority during their initial contact with Bernius was to ensure the safety of other boaters and citizens on the river. Officer Delcambre explained, "On that particular day[,] due to the river traffic and the fluctuations of the traffic coming north and south up the river where we encountered Bernius there in [B]end [2], due to the nature of where we [were] ... I made the judgment to move around the bend for the safety of the people and everybody involved on the river."

¶ 13. Relying on City of Jackson v. Brister , 838 So.2d 274 (Miss. 2003), the circuit court concluded that the present case involved the officers' failure to detain Bernius rather than their pursuit of him or their failure to arrest him. The circuit court found that the officers' instructions to Bernius to move toward the straightaway violated Mississippi boating laws and the MDWFP's SOPs. The circuit court explained that Officers Delcambre and Thrash violated the MDWFP's SOP 04.01, which required the officers to issue boating-related citations "at the scene," and that nothing in the SOP permitted the officers to direct "the offending operator to continue to operate his vessel prior to issuing a citation." The circuit court thus held the officers' conduct in directing Bernius out of the bend was in reckless disregard for the safety of the public.

¶ 14. In making this finding, the circuit court relied on the MDWFP procedures set forth in SOP 07/03 for handling a BUI situation. SOP 07/03 defines "probable cause" and states that an officer's "effort to establish probable cause for BUI will be after an [o]fficer's stopping of a water craft ...." According to the circuit court, the term "will" is mandatory rather than permissive, such that the officers were not permitted to move or have Bernius move to another location for their "stop." The circuit court recognized that law-enforcement officers make decisions every day "concerning their safety and others, [and] that they are not to be faulted and do not become liable to those who may be injured simply because sometimes those decisions were not the best decisions in hindsight ...." Nevertheless, the circuit court found the officers' decision to direct Bernius to move his boat was made with a deliberate disregard for the risk such that the officers "were consciously indifferent to the consequences of their actions and inactions." According to the circuit court, this action constituted a failure to exercise any care, resulting in "wantonness," and not a failure to exercise due care, which would have resulted in negligence.

¶ 15. The circuit court further found that the evidence discovered after the accident failed to determine whether Officers Thrash and Delcambre acted in reckless disregard prior to the accident. However, the circuit court did find that the "after-accident information" did "impact on the credibility of the witnesses and the story told by the officers." The circuit court explained the fact that Bernius was ultimately determined to have a .25 percent BAC "does not mean that the officers knew or should have known of that at the time they stopped Bernius. ... It does, though, call into question the officers' observations (or lack there of) [of] Bernius ... [and] [i]t raises a question in the court's mind about the accuracy of the officers' observations of Bernius or perhaps the accuracy of their testimony."

¶ 16. The circuit court also discussed Joshua Lord's testimony that, after the accident, he heard Officer Delcambre tell other officers that "they stopped Bernius because the [other] passenger was propping Bernius up and that the two men were back to back." The circuit court acknowledged that Officer Delcambre denied making this statement, but the court observed that "[Officer] Delcambre's memory was also questioned concerning the odor of intoxicants on Bernius after the accident." The circuit court explained that Keith Bond's report from the accident "clearly states that Officer Delcambre told Bond at the scene after the accident that he smelled the odor of intoxicants on Bernius's breath upon pulling Bernius from the water following the accident." The circuit court acknowledged that "[Officer] Delcambre agreed that at his deposition he said that he could not recall and said in his deposition that he did not smell that odor. He says that as of the trial he is saying that he could not smell alcohol." The circuit court determined that, since Lord was not affiliated with any party in this case and did not know either Bernius or Officer Delcambre, "there is no reason at all given as to why Lord's testimony should be [in] question concerning the statement."

¶ 17. The circuit court ultimately held that, "considering the totality of the circumstances and the applicable law, as well as the admissions of the officers, the officers acted in this case with reckless disregard." The circuit court found that, whether or not they knew or should have known that Bernius was intoxicated, the officers "admittedly appreciated the unreasonable risk to others on the river in allowing a person to recklessly operate a boat and/or to operate at an unreasonable speed." The circuit court explained:

[The officers] did not exercise any of the care or consideration [that] they were required to do in their dealings with Bernius. They clearly intended that Bernius continue to operate his boat without any restrictions from them and without their having made any inquiries as to his reckless operation, speeding, physical abilities, or use of alcoholic beverages. They "intended to do the act that caused harm to come to the [p]laintiff."

¶ 18. The circuit court ultimately rendered a judgment for the Webbs. The circuit court conducted a damages hearing on November 5, 2014, and awarded damages in the amount of $1,400,000 to the guardianship of Shane, and damages of $100,000 to Kathleen, individually and on behalf of Christopher's wrongful-death beneficiaries. After applying the MTCA's statutory cap on damages, the circuit court ultimately entered a final judgment to the guardianship of Shane in the amount of $466,666.67, and to Kathleen, individually and on behalf of Christopher's wrongful-death beneficiaries, in the amount of $33,333.33.

¶ 19. The MDWFP now appeals the circuit court's judgment, arguing that the circuit court improperly substituted its judgment and misapplied the reckless-disregard standard. The MDWFP submits that the circuit court's findings and conclusions demonstrate an application of negligence, and not the higher reckless-disregard standard that is required to find the MDWFP liable under the MTCA.

STANDARD OF REVIEW

¶ 20. "A circuit court judge sitting without a jury is afforded the same deference as a chancellor." City of Jackson v. Lewis , 153 So.3d 689, 693 (¶ 4) (Miss. 2014). Accordingly, we will not disturb a circuit court's findings following a bench trial where the findings are supported by substantial, credible, and reasonable evidence. Id. However, we must reverse the circuit court's findings where they are manifestly wrong or clearly erroneous, or the court applied an erroneous legal standard. Id. "Although reasonable minds might differ on the conclusion of whether or not the officer in question acted in reckless disregard, it is beyond this Court's power to disturb the findings of the trial judge if supported by substantial evidence." Id. (citing City of Ellisville v. Richardson , 913 So.2d 973, 978 (¶ 15) (Miss. 2005) ). We review questions of law de novo. Richardson , 913 So.2d at 977 (¶ 13).

DISCUSSION

¶ 21. The MDWFP argues that the circuit court erred in its application of the "reckless disregard" standard. The MDWFP submits that the circuit court focused on whether the officers intended the act that caused the harm and ignored the requirement that the act at issue must be made with knowledge of an unreasonable risk and a high probability of harm. The MDWFP asserts that the evidence fails to support the conclusion that the officers acted wantonly or in utter disregard of an unreasonable risk with a high probability of harm to others.

¶ 22. We recognize that "[t]he MTCA is the exclusive remedy for filing a lawsuit against a governmental entity and its employees." City of Jackson v. Jackson , 200 So.3d 1141, 1144 (¶ 10) (Miss. Ct. App. 2016) (citing Brister , 838 So.2d at 278 (¶ 15) ). Section 11-46-9(1)(c) provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim: ... [a]rising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury[.]

¶ 23. Under the MTCA, "immunity applies to an officer acting in the scope of his employment unless it is determined that he acted in reckless disregard of the safety of an individual not engaged in criminal activity." Jackson , 200 So.3d at 1144-45 (¶ 10). In determining what action constitutes "reckless disregard," we look to guidance from the supreme court. In Maye v. Pearl River County , 758 So.2d 391, 394 (¶ 19) (Miss. 1999), the supreme court described reckless disregard as a "conscious indifference" to the consequences of an action, almost evincing a "willingness that harm should follow." In the more recent case of Lewis , 153 So.3d at 693 (¶ 5), the supreme court explained that reckless disregard is "more than mere negligence, but less than an intentional act." (citation omitted). The Lewis court further provided that "reckless disregard occurs when the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." Id. (internal quotation marks omitted); see also Thomas ex rel. Thomas v. Miss. Dep't of Pub. Safety , 882 So.2d 789, 796 (¶ 20) (Miss. Ct. App. 2004) (finding that a police officer's failure to check the driver's sobriety failed to rise to the level of reckless disregard and "that there was sufficient evidence for the trial judge to hold that [the officer's] omission [to check for sobriety] did not rise to the level of gross disregard for [the decedent's] safety").

¶ 24. When determining reckless disregard for purposes of defeating immunity relative to law-enforcement duties under the MTCA, this Court applies a totality-of-the-circumstances standard. Id. at (¶ 12)

. Upon review, we must utilize an objective standard when determining the nature of the officers' actions, keeping in mind all the factors they were confronted with while also "taking into account the fact that the officers must make split-second decisions." Id. (citing City of Jackson v. Powell , 917 So.2d 59, 72 (¶ 47) (Miss. 2005) ). In so doing, "this Court must consider all of the events that occurred." Id.

¶ 25. The MDWFP argues that the record fails to contain sufficient evidence to support the circuit court's following findings: (1) the officers "appreciated a risk" that Bernius would flee; (2) Officers Delcambre and Thrash knew, understood, or realized an unreasonable risk or consciously disregarded a known unreasonable risk; and (3) Bend 2 was not a dangerous section of the river. See Lewis , 153 So.3d at 693 (¶ 5). The MDWFP further submits that the circuit court erred by: (1) applying a negligence standard instead of the standard for determining reckless disregard; and (2) failing to find that Bernius's unlawful actions were the intervening and superseding cause of the boating accident.

¶ 26. The record reflects that, at the bench trial, the circuit court heard testimony from Officer Thrash; Officer Delcambre; Bond, a conservation officer at the MDWFP who was called to the scene to investigate the accident and BUI charges; and Lord, a witness to the incident on the river.

¶ 27. At trial, Officer Thrash testified that he was an expert in boating safety and BUI enforcement. However, Officer Thrash admitted that the incident at issue on August 22, 2009, was the first time he had been involved in a BUI stop and the first time that someone suspected of reckless boating had ever "run" from him while performing a stop.

¶ 28. During cross-examination, Officer Thrash admitted that, as an MDWFP officer, he is obligated to stop any vessel he reasonably suspects is being operated by an individual who may be physically incapacitated and incapable of safely operating the vessel. Mississippi Code Annotated section 59-21-83 (Rev. 2013) prevents the reckless or negligent operation of watercraft vessels on Mississippi waters and states:

No vessel shall be operated within this state in a reckless or negligent manner or at a rate of speed greater than is reasonable and prudent under the then existing circumstances or when the operator is so physically or mentally incapacitated as to be incapable of safely operating such vessel, or while the operator is under the influence of intoxicating liquor or narcotics, or when such vessel is overloaded beyond its reasonable carrying capacity.

Officer Thrash testified that he was unable to enforce section 59-21-83 because he never received the chance to do so. Officer Thrash testified that he stopped Bernius because Bernius was operating his boat in a reckless manner. Officer Thrash explained, however, that he and Officer Delcambre were unable to perform a "complete stop" of Bernius prior to Bernius fleeing because "I pulled up [be]side him, but [with] the wave action and everything I never could get up beside him to do a complete stop."

¶ 29. Regarding whether or not the officers possessed probable cause to suspect that Bernius was operating the vessel under the influence of alcohol or drugs, Officer Thrash admitted that, during the alleged stop, he did not ask Bernius or his passenger whether they had consumed alcohol. Officer Thrash testified that he could not tell if Bernius's speech was slurred because he only heard Bernius say "Okay" in response to the command for Bernius to follow the officers to the straightaway. Officer Thrash also testified that, during the stop, Bernius "was seated on his boat and he appeared to have good posture," and he was never close enough to Bernius to observe if his eyes were bloodshot. Officer Thrash further stated that Bernius exhibited no behavior anomalies suggesting that Bernius was not in complete control of his faculties. Officer Thrash admitted that it would have been reckless of him to not consider whether Bernius was under the influence of alcohol or drugs before he allowed him to continue to operate his boat. However, Officer Thrash testified that his interaction with Bernius during the stop failed to give him reasonable suspicion that Bernius may have been under the influence. The record reflects that, when Officer Thrash commanded Bernius to follow the officers around the bend to the straightaway to conduct the stop, Bernius remained in control of his boat and followed the officers a short distance before fleeing.

¶ 30. Officer Delcambre testified that he worked at the MDWFP for approximately twenty-five years and was an expert in boating safety and BUI enforcement. Officer Delcambre also testified that, between the years 2002 and 2009, he was involved in more than 100 stops for boaters operating their vessels in a reckless manner.

¶ 31. Officer Delcambre testified that, because of the blindspot located in the bend where he and Officer Thrash stopped Bernius, he was not close enough to Bernius's boat to be able to assess Bernius's mental, physical, or sensory faculties. Officer Delcambre explained, "We never engaged [Bernius] in slurred speech. I never engaged him in a conversation. I never engaged him in any of that. My main objective at the point where we made contact was to get him out of the bend of the river." Officer Delcambre instructed Officer Thrash to tell Bernius to follow the officers around the bend so they could safely question Bernius regarding his excessive speeding and reckless operation of the boat.

¶ 32. At the conclusion of the trial, the circuit court entered an order on June 6, 2014, finding that Officers Thrash and Delcambre acted with reckless disregard of the safety and well-being of Shane and Christopher.

¶ 33. As stated, "[a] circuit court judge sitting without a jury is afforded the same deference as a chancellor," and we will not disturb a circuit court's findings following a bench trial where the findings are supported by substantial, credible, and reasonable evidence. Lewis , 153 So.3d at 693 (¶ 4). We will reverse the circuit court's findings only upon a determination that the findings are manifestly wrong or clearly erroneous, or the court applied an erroneous legal standard. Id. Furthermore, it is beyond the power of this Court to disturb the circuit court's findings regarding a determination of reckless disregard where those findings are supported by substantial evidence. Id. (citing Richardson , 913 So.2d at 978 (¶ 15) ). In a bench trial, the trial judge sits as the trier of fact and "has the sole authority for determining the credibility of the witnesses." City of Jackson v. Lipsey , 834 So.2d 687, 691 (¶ 14) (Miss. 2003).

¶ 34. Turning to review the circuit court's findings, the record reflects that, in making its determination regarding whether the officers exhibited reckless disregard, the circuit court discussed section 59-21-83, which governs boating safety. Section 59-21-83 provides in pertinent part:

No vessel shall be operated within this state in a reckless or negligent manner or at a rate of speed greater than is reasonable and prudent under the then existing circumstances or when the operator is so physically or mentally incapacitated as to be incapable of safely operating such vessel, or while the operator is under the influence of intoxicating liquor or narcotics, or when such vessel is overloaded beyond its reasonable carrying capacity.

¶ 35. The record reflects that the circuit court took issue with the MDWFP officers' request for Bernius to move his boat to a straightaway for safety purposes. The circuit court also discussed two MDWFP SOPs: SOP 04.01, which provides the guidelines for making an arrest, and SOP 07/03, which concerns the guidelines for enforcing the BUI law. The circuit court found that, although both Officers Thrash and Delcambre stated they were aware of section 59-21-83 and the SOPs, they failed to comply with the SOPs.

¶ 36. SOP 04.01 provides in pertinent part:

For violations of laws enforced primarily by [M]DWFP, ... custodial arrests will be made only for the following violations:
a) All Class 1 Game and Fish Violations; and
b) Violations of the Alcohol Boating Safety Act;
c) Narcotic[ ]s violations[.]

For violations of laws enforced primarily by [M]DWFP other than those named above, a citation should be issued [at] the scene[,] and the defendant should not be detained further except in extraordinary circumstances.

¶ 37. In examining SOP 04.01, the circuit court found that the SOP provides that citations are to be issued "at the scene," and it "does not provide that the officers may direct the offending operator to continue to operate his vessel prior to issuing a citation. Specifically, it does not provide for directing an operator to move his vessel to another location."

¶ 38. SOP 07/03 provides in pertinent part:

[I]t shall be part of the mission of [MDWFP] to enforce the laws of the United States and the State of Mississippi on the public waters under the jurisdiction of the State of Mississippi so as to protect all persons from injury and/or loss of life and to safeguard property[.]
....
Once a vessel has been stopped, the Officer may then ascertain if there is further probable cause to suspect that the operator of the vessel is under the influence of alcohol, drugs, or a controlled substance. Evidence to warrant proceeding to the screening/intoxication interview include:
1. Slurred speech;
2. Poor balance (not as convincing when on water due to wave action);
3. Bloodshot eyes; and
4. Other behavioral anomalies that suggest the individual is not in complete control of his or her faculties.
....
If, in the Officer's best judgment, the subject displays outward signs of being under the influence, the Officer shall proceed to the screening interview.

In its order, the circuit court found that SOP 07/03 indicates that an officer "is required upon stopping a vessel to begin his efforts to establish probable cause for BUI."

¶ 39. The circuit court recognized that both officers confirmed they were familiar with the SOPs, and the circuit court acknowledged Officer Thrash's testimony that "[t]he SOPs never came into effect because they never had the opportunity to put [the SOPs] in effect." The circuit court determined that "this is so, however, only because the officers chose to make it so." As a result, the circuit court held that "the officers did not comply with the SOPs in this case." The circuit court further determined that "it is also clear that the officers gave no consideration to ensuring that Bernius did not continue to recklessly operate his vessel during their trip down the river."

¶ 40. The circuit court determined that, after the officers performed their initial stop of Bernius for recklessly operating his boat, the officers then lacked authority to direct Bernius to move out of the hazardous area on the river. Precedent, however, reflects that speeding and reckless-driving citations are treated significantly differently from driving-under-the-influence arrests.

¶ 41. The circuit court also found that the officers' defense rested solely on their position that their boats and Bernius's boat were stopped in a dangerous bend of the river and blocking a portion of the river, and that the officers wanted to move the boats around the bend and down river to a different point in the straightaway before proceeding to determine why Bernius had been reckless and speeding. The circuit court acknowledged the officers' argument that this was a reasonable and necessary judgment on their part, and not reckless disregard. However, the circuit court held that "the officers' well-rehearsed mantra of Bend 2 being a blind, dangerous curve is not supported by evidence in the record." The circuit court explained that only Officers Thrash and Delcambre testified as to the bend's dangerousness. The circuit court stated that the photos of the bend admitted into evidence "do not lend themselves to any real assessment that [B]end 2 is a blind curve or dangerous curve," and the court pointed to Officer Delcambre's testimony that no warning signs appeared at Bend 2 concerning any danger or hazard.

¶ 42. The circuit court found the facts of Brister, 838 So.2d at 281 (¶ 23), to be similar to the case at hand. In Brister , the supreme court found the fact that the officers in that case did not intend an accident to occur was "of no concern," and it opined that the officers exhibited "conscious indifference knowing they had not complied with ... the existing governing policy of the police department at that time." Id. The supreme court explained that, "[w]ithout adhering to that policy, the officers should have reasonably expected the possibility of adverse consequences[,] including a fatal accident[;] thus plaintiffs clearly proved reckless disregard to the general public safety." Id. However, Brister addresses a case of high-speed pursuit only and does not address an officer's discretion to conduct a stop in a safe area that does not obstruct traffic.

¶ 43. Mississippi precedent establishes that a violation of a SOP does not alone establish reckless disregard. City of Jackson v. Presley , 40 So.3d 520, 524 (¶ 16) (Miss. 2010). Rather, reckless disregard constitutes "more than mere negligence, but less than an intentional act," and must be shown by conduct that evinces "not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." Jackson , 200 So.3d at 1145 (¶ 11).

¶ 44. In Thomas , this Court examined a case where an intoxicated driver was issued a speeding ticket but the police officer failed to check the driver's sobriety during the traffic stop. Thomas , 882 So.2d at 791 (¶ 3). The driver later wrecked his vehicle, resulting in the death of his son, who was a passenger in the car. Id. at (¶ 4). In reviewing the case, this Court found the circuit court applied a reckless-disregard standard under the MTCA for immunity for liability for the Mississippi Department of Public Safety (MDPS) and its officer who issued the speeding ticket but failed to check the driver's sobriety. Id. at 793 (¶ 14). This Court affirmed the circuit court's judgment that the officer's failure to check the driver's sobriety failed to rise to the level of reckless disregard, and we explained "that there was sufficient evidence for the trial judge to hold that [the officer's] omission [to check for sobriety] did not rise to the level of gross disregard for [the decedent's] safety." Id. at 796 (¶ 20). See also Miss. Code Ann. § 11-46-9(1)(c) (discussing reckless disregard).

¶ 45. The Thomas court distinguished its facts from those in Turner v. City of Ruleville , 735 So.2d 226, 230 (¶ 21) (Miss. 1999), explaining that, "[i]n Turner , the court found reckless disregard on the part of a police officer who allowed a visibly intoxicated driver to continue driving." Id. at 797 (¶ 23). The Thomas court held that, in the case before it, "it was not obvious ... that [the driver] was intoxicated" based on the MDPS officer's observations of the driver during the traffic stop. Id. The Thomas court ultimately determined that "[t]here is no evidence that [the driver] was visibly intoxicated while he was in [the MDPS officer's] presence." Id.

¶ 46. In Bradley v. McAllister , 929 So.2d 377, 380 (¶ 12) (Miss. Ct. App. 2006), this Court acknowledged that, in cases where "officers were held to have acted in reckless disregard of the safety of others[,] ... [t]he common thread ... is that the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." (internal quotation marks omitted) (citing Lipsey , 834 So.2d at 693 (¶ 21) ).

¶ 47. In the case before us, the circuit court found that the officers' conduct violated the applicable SOP, and thus, the court held that the officers' violation of this SOP by requesting that Bernius follow them to a straightaway and out of the hazardous area of the river supported a finding of reckless disregard. However, a review of SOP 04.01 reflects no provision prohibiting officers from requesting a boater pull to a safe area to conduct a traffic stop. Furthermore, we find that the violation of this SOP fails to necessarily establish reckless disregard by the officers.

¶ 48. The record reflects that the Tchoutacabouffa River constituted a public Mississippi waterway. In the context of probable cause and traffic stops, Mississippi precedent reflects that "the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Adams v. City of Booneville , 910 So.2d 720, 723 (¶ 10) (Miss. Ct. App. 2005) (citing Henderson v. State , 878 So.2d 246, 247 (¶ 8) (Miss. Ct. App. 2004) ). Clearly, the MDWFP possessed both the authority to regulate the boating traffic on the Tchoutacabouffa River and the discretion to do so in a safe manner. Disobeying an officer's direction to pull over is a violation of the law. See Miss. Code Ann. § 97-9-72 (Rev. 2014); see also Victor W. Carmody, Kevin T. Stewart & Lance O. Mixon, Mississippi DUI Law and Practice § 13:1 (2012). The United States Supreme Court has held that an officer who lawfully stops an automobile for a traffic violation has the right to order the driver to step out of the automobile. Pennsylvania v. Mimms , 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The Court explained that, "[w]hat is at most a mere inconvenience[,]" such as ordering a driver to exit his vehicle, "cannot prevail when balanced against legitimate concerns for the officer's safety." Id.

¶ 49. In applying the law applicable to traffic stops to the instant case, due to public interest in the officers' safety when conducting a stop, we find that the officers here possessed the discretion to request that Bernius pull out of the hazardous and high-traffic area of the river. Therefore, after reviewing the record, and keeping in mind our standard of review, we find the circuit court erroneously applied the legal standard for reckless disregard to this case. See Thomas , 882 So.2d at 796 (¶ 20). The evidence failed to show that the officers' conduct "evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." See Bradley , 929 So.2d at 380 (¶ 12). As a result, we find the circuit court's judgment lacks credible and substantial evidentiary support. We therefore reverse the circuit court and render judgment in favor of the MDWFP.

¶ 50. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

IRVING AND GRIFFIS, P.JJ., FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE OPINION. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE AND WESTBROOKS, JJ. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J.; ISHEE, J., JOINS IN PART.

LEE, C.J., DISSENTING:

¶ 51. I join in Judge Westbrooks's dissent, but I write separately to emphasize that it is our standard of review that compels me to do so. "When reviewing the circuit court's fact-based findings, we only examine whether the circuit court abused its discretion and whether the record contained substantial credible evidence to support the decision." Booth v. Williams , 200 So.3d 1053, 1061 (¶ 26) (Miss. Ct. App. 2016). While the particular facts of this case are such that I may have decided it differently, our law precludes me from doing so. Our standard of review dictates that "we must affirm the [circuit court's] decision, regardless of what any of us individually might have ruled had we been the judge, unless there is a definite and firm conviction that the court below committed clear error." Ferguson v. Univ. of Miss. Med. Ctr ., 179 So.3d 1060, 1064 (¶ 17) (Miss. 2015) (internal quotation marks omitted). After reviewing the record, I cannot agree with the majority that the circuit court abused its discretion or that there was not substantial credible evidence to support its findings. As such, I would affirm the judgment of the circuit court and thus, respectfully dissent.

ISHEE AND WESTBROOKS, JJ., JOIN THIS OPINION.

WESTBROOKS, J., DISSENTING:

¶ 52. I am of the opinion that there is substantial, credible, and reasonable evidence to support the trial court's finding of reckless disregard. Therefore, I respectfully dissent.

DISCUSSION

¶ 53. MDWFP Officers Michael Thrash and Barry Delcambre witnessed a boat traveling on the Tchoutacabouffa River speeding and operating in a reckless and uncontrollable manner. There was testimony presented that the officers saw Bernius being "propped up" (back to back) by a passenger while Bernius was operating the boat. The officers stopped Bernius in Bend 2, which is a part of the river the officers contended is a dangerous area. The officers did not inquire whether Bernius was able to operate his boat at this time. Instead, Officer Thrash instructed Bernius to move to a straightaway down the river. Officer Delcambre proceeded down the river ahead of Officer Thrash, and Bernuis was ordered to follow Officer Thrash. According to Officer Delcambre's testimony, they were going to move about one hundred fifty yards down the river to further talk to Bernius. At this time, both officers were in front of Bernius.

¶ 54. Bernius followed the officers out of Bend 2, then turned his boat around and recklessly sped off in the opposite direction. John Joachim, a witness of the accident, was traveling down the river and observed Bernius recklessly speeding on the wrong side of the river, traveling away from the officers. Joachim testified he had to maneuver his boat to avoid a collision with Bernius.

¶ 55. A few moments later, Bernius crashed into a boat operated by Christopher Webb. It is unclear how far away Bernius traveled away from the officers; however, the officers did not witness the crash. Christopher was killed in the crash, and Shane Webb and Kailer Harper, passengers on Christopher's boat, were injured. Bernius and a passenger on Bernius's boat, Dexter Bouie, were thrown into the water. Neither Bernius nor Bouie was seriously injured. The Webbs filed suit against the MDWFP under the MTCA. The Webbs asserted the officers acted with reckless disregard for the safety of others.

¶ 56. The trial court held that the officers' conduct in directing Bernius out of the bend was in reckless disregard for the safety of the public. I agree. The majority opines that the officers' deviation from the MDWFP SOPs (standard operating procedures) did not amount to the deliberate disregard for the safety of others. We do not believe that deviating from standard procedure alone is dispositive of the issue of reckless disregard. However, here it is one of the factors the trial court considered alongside the totality of the circumstances to render a finding of reckless disregard. The trial court determined that "the parties have cited numerous cases from the appellate courts of Mississippi." "A review of those cases clearly reveals that, while there are guidelines for applying the reckless disregard standard, the ultimate decision concerning recklessness is very much fact-driven, hence the totality of the circumstances requirement." I agree with the trial court's findings.

¶ 57. "Based on our standard of review, the circuit judge's findings are safe on appeal if they are supported by substantial, credible, and reasonable evidence." City of Jackson v. Brister , 838 So.2d 274, 278-79 (¶ 19) (Miss. 2003). "Furthermore, in a bench trial such as the case at bar, when the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses." Id. (citations omitted). I find the evidence supports a finding that the officers acted in reckless disregard for public safety, because they did not conduct the stop or control Bernius properly. In Brister , the court upheld a trial court's finding of reckless disregard involving two police officers in pursuit of a vehicle. Id. at 281 (¶ 24). A driver was killed as a result of the pursuit. Id. at 276 (¶ 1). The court held:

Thus, the fact here that the officers did not intend that a fatal accident would result as a direct consequence of their high speed chase in violation of Jackson Police Department existing written policy is of no concern. Brister need only show that the officer actions rose to the level of recklessness. Here, it is sufficient that Brister has shown, and the trial judge so found, that the officers initiated a high speed chase with conscious indifference knowing they had not complied with Order 600-20 which was the existing governing policy of the police department at that time.

Id. at 281 (¶ 23) (emphasis added) (internal citations and quotations marks omitted). In this case, both officers allowed Bernius to continue to operate his boat without any restrictions, even though it was against the SOP regarding reckless operation of the boat. Both officers admitted that no distance of operation is permitted for a reckless operator or an operator under the influence of alcohol. As a result of the officers' conscious indifference for failure to control Bernius after they made contact with him, the trial court found their actions rose to the level of reckless disregard, and I agree.

¶ 58. "Reckless disregard is more than mere negligence, but less than an intentional act." City of Jackson v. Law , 65 So.3d 821, 826 (¶ 17) (Miss. 2011) (citations omitted). "Reckless disregard occurs when the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." Id. (internal quotation marks omitted). Bernius was allowed to operate his boat at such a reckless speed after the stop was made that neither of the officers actually witnessed the accident. This demonstrates the officers' failure to control Bernius after the stop. Neither of the officers noticed that Bernius turned his boat around in the opposite direction and proceeded to speed again after the stop. Moreover, neither of the officers took the steps to ensure Bernius was not drunk while operating the boat. The trial court found that neither Officer Thrash nor Officer Delcambre performed any investigation, obtained any information, or made any informed decision regarding Bernius's continued operation of the boat. According to the SOP manual, the officers were required to determine the reason Bernius was operating his boat in a reckless manner, issue a citation, and investigate to determine whether Bernius was intoxicated. However, the officers chose not to follow those procedures in this case.

¶ 59. The SOP 07/03 provides, in part, as follows:

....
Once a vessel has been stopped, the Officer may then ascertain if there is further probable cause to suspect that the operator of the vessel is under the influence of alcohol, drugs, or a controlled substance. Evidence to warrant proceeding to the screening/intoxication interview include:
1. Slurred speech;
2. Poor balance (not as convincing when on water due to wave action);
3. Bloodshot eyes; and
4. Other behavioral anomalies that suggest the individual is not in complete control of his or her faculties.

Officers Thrash and Delcambre testified they did not witness any behavioral abnormalities demonstrating that Bernius was not in complete control of his faculties or intoxicated. However, Joshua Lord, a witness at the trial, testified Officer Delcambre told another officer that Bernius was stopped, because he observed someone propping Bernius up (back to back) while he (Bernius) was operating the boat. Officer Delcambre disputes Lord's testimony regarding his statement. However, the trial court noted that Lord was an uninterested party in the matter and did not appear to have any reason to be untruthful. Officer Thrash testified he noticed Bernuis's wheelchair and colostomy bag after he approached Bernius on the boat. This Court recognizes that the presence of a wheelchair does not in and of itself suggest one is not control of his faculties. However, the presence of the wheelchair and colostomy bag coupled with being propped up while recklessly operating the boat should have given the officers enough heightened awareness to conduct an investigation of some kind in that moment. Moreover, trial counsel asked Officer Thrash if he had a heightened awareness that he had just stopped a boat driving at a recklessly high speed, and that the operator of the boat may have some significant physical issues. He replied in the affirmative. However, the officers chose neither to inquire nor control Bernius at that time.

¶ 60. After the crash, Bernius's BAC was .25 percent-well above the .08 percent legal limit. While Bernius's BAC level was taken after the incident, the evidence calls into question the officers' credibility regarding Bernuis's demeanor and reckless operation of the boat before the accident. Lord testified he detected a strong smell of alcohol coming from Bernius, yet Bernius never uttered a word to him. The evidence shows that a mere investigation or issuance of a citation after stopping the boat would have put the officers on notice of a potential BUI situation. This type of investigation is required under suspicion of BUI according to the BUI handbook.

¶ 61. Officer Thrash also testified he did not come to a complete "stop" because of wave action. However, at the time contact was made with Bernius, his boat had halted and had not continued to move. Bernius's boat did not move again until Officer Thrash ordered him to follow behind him. Interestingly, Officer Thrash testified he was close enough to Bernius to ask Bernius to follow him; however, Officer Thrash did not at least ask Bernius if he had been drinking (as required by the BUI-stop manual). More importantly, both officers admitted they did not have the authority to make their own guidelines regarding the stop, yet they deviated from the SOP.

¶ 62. In Turner v. City of Ruleville , 735 So.2d 226, 227 (¶ 2) (Miss. 1999), Trista Turner was injured in a collision with a drunk driver. Turner filed a complaint in Sunflower County Circuit Court against the drunk driver and the City of Ruleville, "alleg[ing] that although [the officer] knew that [a drunk driver] was intoxicated and incapable of driving his vehicle in a safe and prudent manner, [the] [o]fficer allowed [the drunk driver] to continue driving." Id. "This, Turner charged, constituted reckless disregard of the safety and well being of Turner and others traveling on the highway who were not engaged in criminal activity at the time of injury." Id. The court found that "because willful and wanton are synonymous with reckless disregard[,] and because the officer was alleged to have acted willfully and wantonly, the complaint did state a claim upon which relief could be granted." Id. at 230 (¶ 22). The facts in this case are somewhat analogous to Turner . By allowing Bernius to operate his boat after the initial stop and failure to control him, the officers demonstrated a reckless disregard for the public's safety and the reckless disregard for Bernius's safety.

¶ 63. "The supreme court has[,] however[,] analyzed cases in which officers were held to have acted in reckless disregard of the safety of others in other contexts." Bradley v. McAllister , 929 So.2d 377, 380 (¶ 12) (Miss. Ct. App. 2006). "The common thread of these cases is that the conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved." Id. (citation and quotation marks omitted). In this case, both officers admitted they were obligated to enforce, without exception, the boating laws of Mississippi. The officers asserted the area where they initially stopped Bernius was dangerous, and they agreed to move to a safer location for a stop. However, the trial court found that the officers did not present any evidence that the bend was dangerous other than their own testimony. No "hazardous" or "warning" signs were posted during the time of the crash around Bend 2. No pictures were offered of Bend 2 from the angle in which the officers argued their boats were coming from. The photographs admitted into evidence showed a pier protruding into the river. However, Officer Thrash gave testimony that he did not dock at the pier, because the three boats would have blocked traffic there. However, the trial court found no evidence to support that testimony. The trial court found that surely other boaters would be able to see three boats before coming too close to avoid contact. This conscious indifference of the officers to deviate from the SOP manual resulted in a failure-to-control situation. The trial court determined that, "It is also clear that the officers gave no consideration to ensuring that Bernius did not continue to recklessly operate his vessel during their trip down the river." The officers' conduct evinced not only some appreciation of the unreasonable risk involved (deviation from SOP), but also a deliberate disregard of that risk by allowing Bernius to continue operating the boat and not conducting a BUI investigation at the stop.

¶ 64. The majority applies the laws dealing with traffic stops to this case. They opine that the officers possessed the discretion to request Bernius to pull out of the hazardous and high-traffic area of the river. I assert this is a case of "failure to control" during and after a stop. I am of the opinion that a "stop" of a boat carries greater risk and requires more thought for the safety of the public. Therefore, when the officers deviated from the manual, at a minimum, they should have taken further precaution by asking a simple question and gaining control over Bernius's ability to operate his boat. The SOPs and laws regulating boating safety exist to ensure that accidents of this nature do not occur. Therefore, under the totality of the circumstances, I opine the officers' actions were such that a trial court could render a finding of reckless disregard for the safety of others.

¶ 65. Respectfully, I dissent.

LEE, C.J., JOINS THIS OPINION; ISHEE, J., JOINS THIS OPINION IN PART.

      On June 10, 2010, Candace filed suit against MDWFP and Victor Harrington (the owner of the boat operated by Donald Bernius) on Shane's behalf pursuant to the MTCA. Candace charged that MDWFP officers acted with reckless disregard for the safety of Shane and other boaters using the Tchoutacabouffa River. On June 17, 2010, Thomas Harper, as legal guardian of Kailer Harper, a minor, also filed suit against MDWFP under the MTCA. Thomas's suit also charged that MDWFP officers acted with reckless disregard for the safety of Kailer and other boaters using the Tchoutacabouffa River. MDWFP filed a motion to consolidate the two cases on July 15, 2010, pursuant to Mississippi Rule of Civil Procedure 42(a). The Webb and Harper cases were consolidated on September 23, 2010.
      On August 19, 2010, Kathleen, individually, and on behalf of the wrongful-death beneficiaries of Christopher, brought suit against MDWFP, Harrington, and Bernius. By order dated November 5, 2010, the circuit court consolidated Kathleen's suit with Candace's and Thomas's cases. Bernius and Harrington were subsequently dismissed with prejudice, and the consolidated cases proceeded against MDWFP.
      Four-year-old Kailer was also a passenger in the Webb boat. Although Kailer's guardian, Thomas, initially filed suit on Kailer's behalf, no damages were sought for any alleged injuries to Kailer. As such, discussions in this appeal are directed toward the claims on behalf of Christopher and Shane. Thus, the Appellees are collectively referred to in this opinion as "the Webbs."

      See Miss. Code Ann. § 59-23-3(e) (Rev. 2013) (defining public waters); Miss. Code Ann. § 51-1-4 (Rev. 2016) (discussing the use of public waterways); Miss. Code Ann. § 1-3-31 (Rev. 2014) (defining navigable waters).

      At trial, Officer Thrash clarified that Bernius responded "OKAY!" and appeared to understand what Officer Thrash had asked him to do. Officer Delcambre testified that he also saw Bernius nod his head affirmatively in agreement. Dexter Bouie, a passenger in Bernius's boat, wrote in his statement given after the accident that Bernius agreed to follow the officers into the straightaway.

      See Miss. Code Ann. § 59-23-7(1) (Rev. 2013) (stating that the legal BAC for boating is .08 percent).

      A uniform traffic citation may be issued for reckless driving. Miss. Code Ann. § 63-3-1201 (Rev. 2013); Miss. Att'y Gen. Op., 1992 WL 614053, Gross (July 15, 1992).

      In its order, the circuit court stated that the issues before the court were (1) whether the officers' acts and omissions caused or contributed to the accident, and (2) whether those acts or omissions constitute reckless disregard of the safety and well-being of Shane and Christopher.

      See Miss. Code Ann. § 59-21-83.

      SOP 04.01 provides in pertinent part:
      For violations of laws enforced primarily by [M]DWFP, ... custodial arrests will be made only for the following violations:
      a) All Class 1 Game and Fish Violations; and
      b) Violations of the Alcohol Boating Safety Act[;]
      c) Narcotic[ ]s violations[.]
      For violations of laws enforced primarily by [M]DWFP other than those named above, a citation should be issued [at] the scene[,] and the defendant should not be detained further except in extraordinary circumstances.

      See Miss. Code Ann. § 1-3-31 (defining navigable waters); Miss. Code Ann. § 51-1-4 (discussing the use of public waterways); Miss. Code Ann. § 59-23-3(e) (defining public waters).

      Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      The Supreme Court has balanced the law-enforcement interest in having the driver exit the vehicle against the interest of the driver's privacy. Two public-interest concerns supported the exit order: (1) the officer's safety in avoiding violent confrontations possible in any traffic stop, and (2) minimizing the hazardous accidental injury from passing traffic. See Maryland v. Wilson , 519 U.S. 408, 413-14, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) ; Mimms , 434 U.S. at 111, 98 S.Ct. 330 ; see generally Ohio v. Robinette , 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

      At the time of the crash, Officer Thrash had been employed by MDWFP for just over two and a half years. He received his BUI training roughly two months prior to the accident. According to testimony, this stop was the first time he had ever been involved in a BUI stop or investigation. Officer Delcambre had been employed by the MDWFP for twenty-two years at the time of the accident. He had been involved with over one hundred stops for reckless operation of a vessel.

      Candace Webb, legal guardian for Shane Webb, and Thomas Harper, legal guardian of Kalier Webb filed suits against MDWFP charging that the officers acted with reckless disregard for the safety of Shane and Kailer. These cases were consolidated against MDWFP. Kathleen Webb, on behalf of the wrongful-death beneficiaries of Christopher Webb, brought suit against MDWFP, Bernius, and Victor Harrington (legal owner of the boat operated by Bernius). The claims were heard pursuant to the Mississippi Torts Claims Act (MTCA). As a result, all three cases were consolidated against MDWFP. No damages were sought on Kailer's behalf. Therefore, this appeal discusses the case on behalf of Christopher Webb and Shane Webb ("Webbs").


author: FAIR, J., FOR THE COURT:

text:
    Richard MASON a/k/a Richard Harrison Mason a/k/a the American, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee
    NO. 2017-CP-00179-COA
    Court of Appeals of Mississippi.
    October 24, 2017 Rehearing Denied April 17, 2018 Certiorari Denied July 19, 2018
    ATTORNEY FOR APPELLANT: RICHARD HARRISON MASON (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Richard Mason was convicted of sexual battery in 2005 and was sentenced to serve thirty years in prison. Mason contends that he is eligible for meritorious earned time, a conditional reduction in sentence that operates as an "incentive for offenders to achieve positive and worthwhile accomplishments for their personal benefit or the benefit of others." Miss. Code Ann. § 47-5-142 (Rev. 2015). The Mississippi Department of Corrections disagreed, and after Mason brought this lawsuit, the circuit court found him ineligible as well. Because Mason is a sex offender and statutorily barred from meritorious earned time, we affirm.

DISCUSSION

¶ 2. Mason bases his argument on section 47-5-142(1), which states that "any" offender shall be eligible to receive meritorious earned time, "subject to the provisions of this section ... as distinguished from earned time for good conduct and performance." He points out that he is an offender and that nothing in section 47-5-142 expressly prohibits him from being eligible.

¶ 3. However, Mississippi Code Annotated section 47-5-139(1)(d) (Rev. 2015) provides: "An inmate shall not be eligible for the earned time allowance if ... [t]he inmate was convicted of a sex crime." This Court has repeatedly held that, notwithstanding the broad language in section 47-5-142, eligibility for meritorious earned time is controlled by section 47-5-139. See Riley v. State , 150 So.3d 138, 140 n.2 (Miss. Ct. App. 2014) ; Clark v. Miss. Dep't of Corr. , 148 So.3d 403, 404-05 (¶¶ 8-9) (Miss. Ct. App. 2014) ; Smith v. State , 75 So.3d 82, 83-84 (¶ 5) (Miss. Ct. App. 2011) ; Sykes v. Epps , 963 So.2d 31, 32-33 (¶ 7) (Miss. Ct. App. 2007) ; Golden v. Epps , 958 So.2d 271, 275 (¶ 8) (Miss. Ct. App. 2007).

¶ 4. The circuit court correctly dismissed Mason's complaint because, having been convicted of a sex crime, Mason is not eligible to have his sentence reduced for meritorious earned time.

¶ 5. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.


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

text:
    Michael ISHEE, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01033-COA
    Court of Appeals of Mississippi.
    November 28, 2017 Rehearing Denied April 17, 2018 Certiorari Denied July 19, 2018
    ATTORNEY FOR APPELLANT: W.F. HOLDER II
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Michael Ishee appeals the Harrison County Circuit Court's denial of his motion for post-conviction relief (PCR), after pleading guilty to one count of exploitation of a child under Mississippi Code Annotated section 97-5-33(5) (Supp. 2007). He claims that, at the time of his indictment and conviction, section 97-5-33(5) was overbroad and unconstitutional because it lacked the element of scienter.

FACTS

¶ 2. On December 5, 2011, Ishee was indicted on nineteen counts of exploitation of a child. The indictment charged that, on or about July 12, 2010, Ishee possessed visual depictions of actual children under the age of eighteen years engaging in sexually explicit conduct. These images were found on the hard drive of his computer. The State agreed to pass eighteen counts to the files, and Ishee entered a plea of guilty to Count I. Sentencing was deferred to a later date, at which time Ishee was sentenced to twenty years, with eight years suspended, leaving twelve years to serve, followed by four years of probation. Ishee timely filed his PCR motion; however, it was denied by the circuit court. This appeal followed.

DISCUSSION

¶ 3. We review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the trial court's decision is clearly erroneous. We review issues of law de novo. Under Mississippi Code Annotated section 99-39-11(2) (Rev. 2015), a trial court may deny a PCR motion if it plainly appears from the face of the motion, any annexed exhibits, and the prior proceedings in the case that the movant is not entitled to any relief.

Wilson v. State , 203 So.3d 762, 764 (¶ 6) (Miss. Ct. App. 2016) (internal citations and quotations omitted).

¶ 4. Ishee argues that section 97-5-33(5), as written at the time of his indictment, was unconstitutional because it lacked a scienter requirement. At that time, section 97-5-33(5) read: "No person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct." Effective July 1, 2013, this section was amended to read: "No person shall, by any means including computer, knowingly possess or knowingly access with intent to view any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct." Miss. Code Ann. § 97-5-33(5) (Rev. 2014) (emphasis added).

¶ 5. Count I of Ishee's indictment reads that Ishee

did wi[l]lfully, unlawfully, feloniously possess[ ] visual depictions of actual children, under the age of eighteen years, engaging in sexually explicit conduct: namely that Mike Ishee[ ] did possess visual depictions of actual children, under the age of eighteen years, engaging in sexually explicit conduct on a Western Digital hard drive with a serial number of WMATJ3553758, all in violation of 97-5-33(5) of the Mississippi Code of 1972, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

¶ 6. In support of his argument, as discussed below, Ishee relies on United States Supreme Court rulings in similar cases that require a scienter requirement for conviction. Furthermore, he asserts that the State acknowledged this error when the statute was revised in 2013. The State responds that the issue being raised by Ishee was previously decided in Renfrow v. State , 34 So.3d 617 (Miss. Ct. App. 2009). The State contends that Ishee admitted that he willfully possessed child pornography. He also admitted that he downloaded the child pornography, and knew it was illegal based upon his statements at his plea hearing:

[BY THE COURT]: Mr. Ishee, according to the cause number 11-813, count one, it says that this exploitation occurred on or about July 12, 2010. Tell me about what happened in your case[.]
[BY ISHEE]: I was found to be in possession of something that goes against the statute.
[BY THE COURT]: So tell me. Where were you in possession of it?
[BY ISHEE]: At my home.
* * * *
[BY THE COURT]: So you downloaded it on the computer?
[BY ISHEE]: Yes ma'am.
* * * *
[BY THE COURT]: So you downloaded pictures or videos of children under the age of 18 engaging in sexual explicit conduct, is that correct?
[BY ISHEE]: Yes ma'am.

In this case, there was no challenge to either Ishee's indictment or the statute, before or during his plea hearing. Pursuant to Ryals v. State , 881 So.2d 933, 936 (¶ 13) (Miss. Ct. App. 2004), "[i]n a request for post-conviction relief, a trial court is entitled to place great weight on the testimony given at a plea hearing." Emphasis should be placed on Ishee's statements made at his hearing.

¶ 7. Ishee's counsel relies on New York v. Ferber , 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), in support of his argument-that there must be some form of scienter to sustain convictions for possession of child pornography. He specifically quotes the Ferber court: "As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant." Id. at 765, 102 S.Ct. 3348. Though not referenced by Ishee, we note that the Ferber court also held that "states are entitled to greater leeway in the regulation of pornographic depictions of children." Id. at 756, 102 S.Ct. 3348.

¶ 8. The State contends that under Ferber , this requirement was met when Ishee pleaded guilty to willfully possessing child pornography on his hard drive. Thus, the requirement of scienter was met. Additionally, the State relies on the similar ruling in Renfrow , 34 So.3d at 625 (¶ 19). Renfrow sought to dismiss his case on the basis that there was a lack of scienter in the same statute at issue today. The motion was denied, as willfully possessing child pornography was the basis of scienter for convicting Renfrow. The crux of this case is whether Ishee was convicted under an unconstitutional statute. During his plea hearing, he admitted to willfully possessing child pornography. "Willfully" indicates scienter. Ishee argues that Renfrow is inapplicable, that this Court erred in that decision, and that we should overrule Renfrow in this case.

¶ 9. In addition, Ishee argues that, by inserting elements of a crime into the indictment that were not in the statutory definition of the crime, the State violated the separation of powers as mandated by the Mississippi Constitution. He also argues that this would be an ex post facto law and therefore unconstitutional. The State responds that it was not improper to charge Ishee with willful possession of child pornography. Since Ishee's indictment charged him with willfully, unlawfully, and feloniously possessing child pornography, and Ishee admitted to knowingly possessing child pornography, it was irrelevant that section 97-5-33(5) did not have a mens rea element, just as this Court found in Renfrow.

¶ 10. Again, this Court in Renfrow provided clear guidance on this exact issue in 2009:

[O]ur decision need not turn on whether section 97-5-33(5) is unconstitutionally vague simply because it does not contain a mens rea element. The State charged Renfrow with willful possession of child pornography. That is, Count II of the indictment against Renfrow contained language that included an allegation that Renfrow willfully possessed child pornography. By including that language, the State imposed a mens rea requirement, and it was obligated to prove that aspect of the charge beyond a reasonable doubt. Consequently, under the circumstances, it is irrelevant that section 97-5-33(5) does not include a mens rea element.

Renfrow , 34 So.3d at 625 (¶ 19). The subsequent change in the statute therefore has no bearing on this case. As such, we affirm.

¶ 11. AFFIRMED.

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

BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      We note that Ishee's PCR motion is proper under Mississippi Code Annotated section 99-39-5(1)(c) (Rev. 2015), as he challenges the constitutionality of the statute he was sentenced under. See Conyers v. State , 196 So.3d 170, 171 (¶ 5) (Miss. Ct. App. 2016).