text:
    Albinnie BRYANT, Appellant v. Katie DENT, Christopher Gray, and Cathy Gray, Appellees
    NO. 2017-CA-01322-COA
    Court of Appeals of Mississippi.
    September 18, 2018
    ATTORNEYS FOR APPELLANT: JOSIAH CHARLES BURNS, RONALD C. MORTON, Clinton
    ATTORNEYS FOR APPELLEES: KATIE DENT (PRO SE), CHRISTOPHER GRAY (PRO SE), CATHY GRAY (PRO SE)
    BEFORE LEE, C.J., FAIR AND WILSON, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the chancellor erred in dismissing Albinnie Bryant's complaint against Katie Dent, Christopher Gray, and Cathy Gray. Finding reversible error regarding the applicable statute of limitations, we affirm in part and reverse and remand in part.

PROCEDURAL HISTORY

¶ 2. Prior to his death, Mellie Cooley signed and executed a warranty deed transferring his interest in certain real property located in Hattiesburg, Mississippi, to his sister, Katie Dent. After Cooley's death, Albinnie Bryant, individually and as administrator of Cooley's estate, filed a complaint in the Forrest County Chancery Court against Dent, Christopher Gray, and Cathy Gray, alleging that the deed was void due to Cooley's lack of capacity, undue influence, and fraud. The chancellor dismissed Bryant's complaint, finding that her claims were barred by the three-year statute of limitations. Bryant now appeals, asserting that the chancellor erred in dismissing her complaint.

FACTS

¶ 3. On December 22, 2010, Cooley signed and executed a warranty deed transferring his interest in his home located at 725 Grace Avenue to Dent. Cooley died on January 16, 2011. In April 2011, Bryant was appointed administrator of Cooley's estate. Bryant is Cooley's niece.

¶ 4. In July 2011, Bryant filed her first complaint against Dent in the Forrest County Chancery Court alleging the deed was void due to Cooley's lack of capacity, undue influence, and fraud. Bryant asked the court to confirm and quiet title of the property in the name of Cooley's estate. Bryant also filed a notice of lis pendens in the local land records noting the pending suit as a cloud upon the title of the property. On May 21, 2012, Dent executed a warranty deed transferring title of the property in question to Christopher and Cathy Gray.

¶ 5. Due to lack of prosecution, the chancellor dismissed Bryant's first complaint without prejudice on October 19, 2016.

¶ 6. Bryant refiled her complaint against Dent and included the Grays as defendants (collectively Dent). Bryant then amended her complaint in February 2, 2017, claiming the deed was also void because Cooley's wife, Overa, did not sign the deed as required by Mississippi Code Annotated section 89-1-29 (Rev. 2011).

¶ 7. The defendants subsequently filed a motion to dismiss. After a hearing, the chancellor dismissed Bryant's complaint. The chancellor found Bryant did not maintain a possessory interest in the property, so her claims were barred by the three-year statute of limitations that expired on December 21, 2013. The chancellor further found that filing the new complaint did not toll the statute of limitations, and Bryant's allegation of fraud was not made with particularity as required by Mississippi Rule of Civil Procedure 9(b).

STANDARD OF REVIEW

¶ 8. When reviewing a trial court's grant or denial of a motion to dismiss, this Court applies a de novo standard of review. Scaggs v. GPCH-GP Inc. , 931 So.2d 1274, 1275 (¶ 6) (Miss. 2006). In considering a motion to dismiss, all of the allegations in the plaintiff's complaint must be taken as true, and the motion should be granted only where "it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Id. Issues concerning the statute of limitations are questions of law, which are reviewed de novo. Lincoln Elec. Co. v. McLemore , 54 So.3d 833, 835 (¶ 10) (Miss. 2010).

DISCUSSION

¶ 9. We first note that Dent failed to file an appellee's brief. When the appellee fails to file a brief,

this Court has two options. First, we may take the appellee's failure to file a brief as a confession of error and reverse. This option is favored when the record is complicated or of large volume and the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error. However, if the record can be conveniently examined and such examination reveals a sound and unmistakable basis or ground upon which the judgment may be safely affirmed, we may disregard the appellee's error and affirm.

Jay Foster PLLC v. McNair , 175 So.3d 565, 571 (¶ 15) (Miss. Ct. App. 2015) (quoting Archie v. City of Canton , 92 So.3d 1279, 1282 (¶ 10) (Miss. Ct. App. 2012) ). Here, the record is not complicated, and Bryant's brief makes out an apparent case of error regarding the applicable statute of limitations.

¶ 10. In this appeal, Bryant argues that the chancellor erred in dismissing her amended complaint. Specifically, Bryant argues that the chancellor erred by: applying the wrong statute of limitations; finding that the allegation of fraud did not meet the requirements of Rule 9(b) ; and failing to address her argument that the deed was void for failure to include Cooley's wife's signature.

A. Statute of Limitations

¶ 11. Actions to recover land are subject to the ten-year statute of limitations found in Mississippi Code sections 15-1-7 and 15-1-9. In relevant part, section 15-1-7 provides:

A person may not make an entry or commence an action to recover land except within ten years next after the time at which the right to make the entry or to bring the action shall have first accrued to some person through whom he claims, or, if the right shall not have accrued to any person through whom he claims, then except within ten years next after the time at which the right to make the entry or bring the action shall have first accrued to the person making or bringing the same.

Miss. Code Ann. § 15-1-7 (Rev. 2012). Similarly, section 15-1-9 provides:

A person claiming land in equity may not bring suit to recover the same except within the period during which, by virtue of Section 15-1-7, he might have made an entry or brought an action to recover the same, if he had been entitled at law to such an estate, interest, or right in or to the same as he shall claim therein in equity.

Miss. Code Ann. § 15-1-9 (Rev. 2012). "A suit to remove a cloud on title is considered an action to recover land." Lott v. Saulters , 133 So.3d 794, 799 (¶ 8) (Miss. 2014).

¶ 12. We find the chancellor's reliance upon O'Neal Steel Inc v. Millette , 797 So.2d 869 (Miss. 2001), is misplaced. There, O'Neal sought to enforce a judgment lien, not title or possession of the property at issue. Id. at 874 (¶ 15). The supreme court stated that a "judgment lien does not create in O'Neal a possessory interest in the real property," and "absent any possessory interest in the subject property, O'Neal cannot claim that this litigation is an action to recover land." Id. at 873 (¶¶ 12, 13).

¶ 13. Here, Bryant, as administrator for Cooley's estate and individually as a possible heir of Cooley, seeks possession of the real property deeded away by Cooley, allegedly due to undue influence. In a similar situation, the supreme court held that the ten-year statute of limitations applied. See In re Estate of Reid , 825 So.2d 1, 6 (¶¶ 16-19) (Miss. 2002). There, the decedent's potential heir alleged undue influence in an attempt to set aside the decedent's transfers of real property to her adopted son. Id.

¶ 14. Because the ten-year statute of limitations applies, Bryant's suit is not barred. Thus, we reverse and remand for further proceedings.

B. Fraud

¶ 15. Bryant argues that the chancellor erred by finding that her allegations of fraud did not meet the requirements of Rule 9(b). Rule 9(b) states the following: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other conditions of mind of a person may be averred generally." Furthermore, "[t]he circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated." Howard v. Harper (In re Estate of Harper) , 947 So.2d 854, 861 (¶ 20) (Miss. 2006). In Bryant's amended complaint, she simply stated that Dent "exercised undue influence and/or fraud in the procurement of said warranty deed." Bryant clearly failed to state the circumstances constituting the fraud with particularity; thus, we find no error by the chancellor in finding Bryant did not meet the requirements of Rule 9(b).

C. Wife's Signature

¶ 16. Bryant argues that the deed was void because Cooley's wife did not sign the deed as required by section 89-1-29. The chancellor did not address this issue in her judgment. Because we are reversing on the statute-of-limitations issue, this issue can be revisited if pursued on remand.

¶ 17. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      During the hearing on the motion to dismiss, Dent's attorney stated that Cooley's 2007 will had been filed during probate proceedings. Dent's attorney stated that in this will Cooley left the real property at issue to both Bryant and Dent.


source: Caselaw Access Project

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

license: Public Domain

text:
    Willie Soloman ROBINSON a/k/a Willie S. Robinson a/k/a Willie Robinson, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00786-COA
    Court of Appeals of Mississippi.
    September 25, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES, Jackson
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. Willie Soloman Robinson was convicted of first-degree arson as a habitual offender following a jury trial in the Circuit Court of Harrison County, Mississippi, First Judicial District. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Robinson now appeals, asserting two issues: (1) whether he was wrongly indicted for first-degree arson when the evidence was only sufficient to support an indictment for attempted arson; and (2) whether the verdict was against the weight of the evidence. For the reasons discussed in this opinion, we reject Robinson's arguments and affirm.

FACTS

¶ 2. As of March 20, 2015, Robinson had been renting, for about a month, an extra bedroom in Alice Crandle's house in Gulfport, Mississippi. At some point that day, Robinson and Alice got into an argument, and Alice demanded that Robinson move out. Alice testified at trial that as her two adult sons, Damien and Cedric, were helping Robinson move his things out of her house, she heard Robinson say that he was going to burn her house down. Cedric also testified that Robinson told him that he was going to burn the house down. Cedric further testified that Robinson called Robinson's supervisor and told him that he would not be coming in the next day because he would be in jail. Robinson then called his uncle, who picked him up from the house. Cedric maintained that after leaving his mother's house, he saw Robinson and Robinson's uncle at a gas station. Finally, Cedric testified that about forty-five minutes after he saw Robinson at the gas station, Cedric's mother called him and told him that her house was on fire and that he "jumped in [his] car and [ ] flew to her house" and discovered fire "all along her front porch and on the back door ... on the side of the house." He used a bucket to douse water on the flames and extinguish the fire before going to find help.

¶ 3. Alice testified that around 2:00 a.m. on March 21, 2015, she was in bed when she heard Robinson's voice outside her bedroom window. She got out of bed and looked out the window to see flames on both the front porch and at the back of the house, blocking the front and back doors-the only two doors to her home. Alice then called Cedric.

¶ 4. Officer Brantley Cumberland with the Gulfport Police Department testified that he was patrolling the area around Alice's house at 2:30 a.m. on March 21, 2015, when he was flagged down by Cedric. Cedric informed Officer Cumberland that his mother's house had been set on fire and led Officer Cumberland to the location. Officer Cumberland testified that, upon arriving, he "observed that there was smoke coming from the porch where it actually appeared that the porch had been set on fire." At this point, the fire "was not actively burning, but there was still [sic] burnt embers still smoking coming from the porch." Officer Cumberland made the following observations with respect to the front porch:

The porch, which has an Astro Turf[-]type material on it, there were multiple spots on the porch to where it was burnt down to the wood. The front door, you could see the base of the door where it looked as if a fire had been placed at the base of the door. There was charring going up the door. You could observe the roof above the door where it had melted from the high heat from where the fire appeared to have been placed.
* * * *
[Y]ou could clearly see that a fire had been set on the base due to the blackness on the baseboard and the blackness going up to the door, and you could also see where the paint on the door was also charring as well.

Officer Cumberland also noted that the back door "appeared to have also been burned or appeared as if there was a fire that had been put in front of that doors [sic], as well."

¶ 5. Cedric testified that after the authorities left Alice's house, he stayed and sat out on the front porch to keep an eye out for Robinson. At some point, he saw Robinson "walking up the street towards [Alice's] house with a [gas] can in his hand." Cedric confronted Robinson about starting the fire, to which Robinson replied, "that's what she deserved." Cedric went inside to call the police, at which point Robinson ran off.

¶ 6. Officer Landon Williams with the Gulfport Police Department testified that, around 5:20 a.m. on March 21, 2015, he was patrolling the area near Alice's house when he came across Cedric, who informed him that Robinson had returned to Alice's property. Cedric led Officer Williams to the house, and Officer Williams testified that upon arriving, he "saw Robinson standing in the middle of the road with the gas can in [his] hand." At that point, Officer Williams told Robinson to put the gas can-which was "a quarter of the way filled with [a] liquid substance"-on the ground, and Robinson was taken into custody. Additionally, Officer Joey Fore with the Gulfport Police Department testified that he arrived to the scene as Robinson was being taken into custody, and that he smelled gasoline emanating from the gas can.

¶ 7. Tim Regan, who was a full-time fire investigator/inspector for the City of Gulfport at the time of the incident, testified that he was called to Alice's house on March 21, 2015. He observed that portions of the house exhibited burning "with irregular shape that was consistent with a[n] ignitable liquid pour." He maintained that "someone intentionally attempted to ignite several areas of the structure on fire using some type of ignitable liquid in [twelve] different locations." Investigator Regan collected samples and sent them to the Mississippi Crime Lab for identification. Jacob Burchfield with the Mississippi Crime Lab testified that an ignitable liquid was detected on the samples and that it was identified as gasoline.

¶ 8. Robinson was indicted for first-degree arson as a habitual offender in violation of Mississippi Code Annotated sections 97-17-1 (Rev. 2014) and 99-19-81 (Rev. 2015). After a jury trial, Robinson was convicted and sentenced, as a habitual offender, to fifteen years in the custody of the MDOC. Judgment was entered on May 18, 2017. Robinson filed a motion for a new trial on May 24, 2017, which was denied, and Robinson timely appealed.

DISCUSSION

I. Attempt

¶ 9. Robinson argues on appeal that the State failed to present evidence sufficient to show beyond a reasonable doubt that he committed the completed act of arson; rather, according to Robinson, the evidence only supports an attempt to commit arson, and he should have been indicted for such. In response, the State maintains that there was legally sufficient evidence of actual burning to prove first-degree arson and that Robinson was properly indicted.

¶ 10. The subsection of the statute under which Robinson was indicted, Mississippi Code Annotated section 97-17-1(1), reads as follows:

Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, or any state-supported school building in this state whether the property of himself or of another, shall be guilty of arson in the first degree, and upon conviction thereof, be sentenced to the penitentiary for not less than five (5) nor more than twenty (20) years and shall pay restitution for any damage caused.

Robinson's indictment provides, in pertinent part, that he "did unlawfully, willfully, feloniously[,] and maliciously cause to be burned, a dwelling house." Robinson argues that the language of section 97-17-1(1) distinguishes "setting fire to" from "actually burning" a structure because "setting fire to" connotes an attempted arson, while "actually burning" connotes the completed act of arson. Robinson asserts that his indictment, which includes the language "cause to be burned," requires him to have committed the completed act of arson, rather than a mere attempt. Robinson maintains that the State failed to prove at trial that his act transcended beyond a mere attempt to commit arson; thus, he asserts that the State did not prove the elements of arson as laid in the indictment.

¶ 11. We disagree, as we find the evidence sufficient to show or prove that Robinson caused Alice's house to be burned, which constitutes arson in the first degree. Both testimonial evidence and photographic evidence were offered to show that Alice's dwelling was burned and that Robinson was the person who caused her dwelling to be burned. Alice testified that she overheard Robinson threatening to burn her house down. Cedric testified that Robinson told him directly that he was going to burn Alice's house down. Cedric further testified that Robinson actually called Robinson's work supervisor to tell him that he would not be at work the next day because he would be in jail. Alice testified that she heard Robinson's voice outside her window just before she got up and saw the flames outside. The photographs offered into evidence clearly show charring and burning, to the extent that portions of a doormat and an Astro Turf-type material covering the front porch had been burned, revealing the wooden floor underneath. The front door was black with soot. A portion of the roof over the front porch appeared to have warped and melted from the fire's heat. The back door also indicated charring. The State presented evidence that an accelerant, gasoline, was used to start the fire. Cedric testified that he saw Robinson at the gas station before the fire started. Officer Williams testified that he observed Robinson some hours after the fire was put out, standing in the middle of the road near Alice's house holding a gas can. Officer Fore testified that the gas can was filled with a liquid that smelled like gasoline. As such, we find that Robinson was properly indicted for first-degree arson in violation of section 97-17-1(1), and that his actions and the resulting burning transcended beyond a mere attempt to commit arson.

II. Weight of the Evidence

¶ 12. Robinson argues that the weight of the evidence does not favor the State, such that he should be granted a new trial. When reviewing whether a conviction in a case is

contrary to the overwhelming weight of the evidence, we defer to the discretion of the trial judge, and we will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.

Jackson v. State , 68 So.3d 709, 720 (¶ 37) (Miss. Ct. App. 2011) (internal quotation marks and citations omitted). Due to the overwhelming evidence set forth above, we find no merit to this argument. For these reasons, the judgment of the Circuit Court of Harrison County, First Judicial District, is AFFIRMED .

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


text:
    In the MATTER OF the Last Will and Testament of E. Milton BURRIS Sr., deceased:
    E. Milton Burris Jr., Appellant v. The Estate of E. Milton Burris Sr., deceased, by and through the Executrix Renee Sims Burris, and Renee Sims Burris, Individually, Appellees
    NO. 2017-CA-01160-COA
    Court of Appeals of Mississippi.
    September 25, 2018
    ATTORNEY FOR APPELLANT: MARC E. BRAND, JACKSON
    ATTORNEY FOR APPELLEES: EDWIN L. BEAN JR., McCOMB
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   IRVING, P.J., FOR THE COURT:

¶ 1. E. Milton Burris Jr. (Milt) appeals from the judgment of the Amite County Chancery Court granting summary judgment in favor of Renee Sims Burris on the issues of testamentary capacity and undue influence in the contest of the last will and testament of E. Milton Burris Sr. (Eddie) by his son, Milt. Milt argues that the chancery court erred in granting summary judgment because, in doing so, the chancellor adjudicated facts rather than allowing them to be determined by a jury.

¶ 2. We find that based on the averments of Renee's motion for summary judgment and Milt's response thereto, the chancellor did not err in granting summary judgment. Therefore, we affirm.

FACTS

¶ 3. On February 20, 2012, Eddie executed his Last Will and Testament. Eddie left his entire estate to Renee, his wife and the executrix of his estate, with the exception of a one-dollar bequest that he left to his only child, Milt. Eddie subsequently passed away on February 6, 2015, after a battle with a terminal illness. After Eddie's death, Renee filed a petition to probate the will on February 25, 2015, and an amended petition two days later. The chancery court granted Renee's amended petition on February 27, 2015.

¶ 4. On November 16, 2016, Milt filed a complaint contesting the validity of the will. On November 18, 2016, Renee filed her answer, counterclaim, and motion for sanctions. On December 12, 2016, the case was set for trial in August 2017, with the discovery period ending in March 2017.

¶ 5. On August 12, 2016, Renee had moved for partial summary judgment. The motion for partial summary judgment was scheduled to be heard on May 4, 2017, but it was rescheduled because Milt was allowed to file an amended complaint. The parties agreed that the court would consider the allegations of the amended complaint whenever it ruled on the motion for partial summary judgment. On July 7, 2017, the court granted Renee's motion for summary judgment, finding that there was no genuine issue as to any material fact regarding Eddie's testamentary capacity, nor was there a genuine issue of material fact on the issue of undue influence on the part of Renee. Milt timely appealed.

DISCUSSION

¶ 6. "As an appellate court, we will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, or an erroneous legal standard was applied." In re Estate of McDevitt , 755 So.2d 1125, 1127 (¶ 10) (Miss. Ct. App. 1999). "In reviewing assignments of errors of law, this Court proceeds de novo." Id. at (¶ 14). In its order, the chancery court cited Power v. Scott , 837 So.2d 202, 205 (¶ 7) (Miss. Ct. App. 2002), and Gallagher v. Warden(In re Will & Testament of Launius) , 507 So.2d 27 (Miss. 1987).

¶ 7. The Mississippi Supreme Court in In re Launius , 507 So.2d at 29-30, explained the burden of the contestant of a will facing a motion for summary judgment as follows:

Appellees, as proponents of the will, have the burden of proving the will throughout. They meet this burden by showing the will was duly executed and admitted to probate. When the will is admitted to probate, proponents put on prima facie evidence that the testator had testamentary capacity and further that no undue influence was placed upon him. The burden of going forward then shifts to contestant, who must overcome the presumption raised by proponents that testator had testamentary capacity, (and, therefore, that the testator's execution of the will was a free and voluntary act).
When the Mississippi Rules of Civil Procedure come into play within a situation involving a contest to [a] will, where movants for summary judgment (appellees) have shown there is no genuine issue of material fact vis-a-vis probate of the will, contestant, as the adverse party, may not rest upon the mere allegations of denials of his pleadings, but his response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. M.R.C.P. 56(e).

(Citations and internal quotation marks omitted).

¶ 8. With this in mind, Milt argues that there existed genuine issues of material fact as to his father's testamentary capacity and the presence of undue influence by Renee to defeat the summary judgment motion and continue the case to trial.

A. Testamentary Capacity

¶ 9. Milt contends that the chancellor erred by weighing the evidence presented instead of simply identifying conflicting evidence that creates a genuine issue of material fact. "If any triable issues of fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed. It is not our duty to weigh the competing evidence; it is our duty to determine if there is conflicting evidence for trial." Laurel Yamaha Inc. v. Freeman , 956 So.2d 897, 906 (¶ 36) (Miss. 2007). In In re Last Will & Testament & Estate of Smith , 722 So.2d 606, 610 (¶ 12) (Miss. 1998), the Mississippi Supreme Court addressed testamentary capacity:

A determination of testamentary capacity is based on three factors: 1. Did the testatrix have the ability at the time of the will to understand and appreciate the effects of her act? 2. Did the testatrix have the ability at the time of the will to understand the natural objects or persons to receive her bounty and their relation to her? 3. Was the testatrix capable of determining at the time of the will what disposition she desired to make of her property?

"The key to testamentary capacity is mental competency at the time the will is made. " Lee v. Lee , 337 So.2d 713, 715 (Miss. 1976) (citing Scally v. Wardlaw , 123 Miss. 857, 86 So. 625 (1920) (emphasis added) ).

¶ 10. According to Milt, in July of 2011, Eddie was diagnosed with Non-Hodgkins Lymphoma. Despite attempts to treat it, his condition continued to deteriorate. In addition to the lymphoma, Eddie had a number of other serious medical ailments. As a result, he regularly took opioids and anti-anxiety medications. Milt alleges that Eddie self-medicated using those prescribed medications and alcohol, which affected his mental capacity, causing him to make errors while working at his business. He states that Eddie's personal lawyer and friend, John Ott, had misgivings about his proposed disposition of his estate, as he expressed concerns about him leaving the estate to Renee-excluding Milt and Milt's daughter. Milt argues that the chancellor weighed the evidence and discounted his assessments in favor of medical records and other witnesses' affidavits.

¶ 11. Renee responds that at the time Eddie executed his will, he intended to leave Milt none of his estate. According to Renee, Milt's assertions are self-serving and not supported by any documents or the sworn testimony of any person. Renee points out that-consistent with the chancellor's findings-a reading of the record reveals that no physician or medical provider made comments in Eddie's medical records that he had any mental issues or lacked the capacity to conduct his business.

¶ 12. Contrary to Milt's bare assertions, Renee provided affidavits and medical records to support her contention that the will was validly executed. Ott and Kathy Wright, one of Ott's employees, gave affidavits wherein each of them stated that Eddie was competent to execute the will on February 20, 2012. Ott stated the following in his affidavit:

I knew that he and his son, Milt, were estranged and had an acrimonious relationship. However, I urged him to think about his only grandchild, Milt's daughter. Perhaps leaving her something of significance should be considered. However, he was certain that he only wanted to leave Milt $1.00 and Renee everything else. He was of sound mind at the time he executed his Last Will and Testament which was witnessed by myself and my legal assistant, Kathy Wright, on the date in question.
Over the next [twelve] to [fifteen] months I saw him several times and reminded him that he could change the will if he wished. He did not. He was concerned that Milt would contest the will, so I advised him to counsel with another attorney and get that attorney to draft a second will, even if it was identical to the one executed on February 20, 2012.

To that end, on or about May 24, 2013, Eddie hired another attorney, Stewart Robison, to give him a second opinion regarding the will that had been prepared by Ott. Robison signed an affidavit in which he attached an email correspondence between himself and Ott about his meeting with Eddie. The email stated, in pertinent part:

[Eddie] expressed concerns over Milt's right to contest his will. I know of nothing in the law that provides a child the right to contest a will other than the usual undue influence and lack of testamentary capacity issues, neither of which appear to be an issue here. The will you drafted is quite simple, mentions Milt, ... and in view of leaving his estate to his wife, which is a logical testamentary disposition of his property, I would be very surprised if any lawyer would view the will you drafted as anything other than valid in all respects.

(Emphasis added).

¶ 13. In the decree admitting the will to probate, the court found that Eddie was of sound and disposing mind and memory at the time he executed the will. As stated, the relevant time period for determining testamentary capacity is mental competency at the time a will is made. Lee , 337 So.2d at 715. Milt produced no evidence that his relationship with his father was no longer estranged, nor did he present any evidence that on February 20, 2012, the day Eddie created his will, he had any knowledge of Eddie's mental state. Milt's assertions are not supported by the record and the chancellor did not err in granting the motion for summary judgment on this basis. "[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." M.R.C.P. 56.

B. Undue Influence

¶ 14. The question here is whether Milt produced facts that are some evidence of Renee's undue influence in the formation of the will. "A presumption of undue influence arises in a will contest when a beneficiary occupies a confidential relationship with the testator and there is active participation by the beneficiary in either procuring the will or in preparing the will." Smith , 722 So.2d at 611 (¶ 18). There is no question, nor is it disputed, that Renee and Eddie shared a confidential relationship by way of their marriage; however, that fact does not raise the presumption of undue influence. Here, Milt argues that Eddie's cognitive impairments, as well as Renee's actions in allegedly separating Eddie from his only child, amount to undue influence. He contends that Eddie's firing him on Christmas Eve in 2011 at Renee's bequest is evidence of undue influence exerted by Renee and indicates a lack of cognitive capacity by Eddie. In support of this assertion, Milt points to two things that Eddie did: married Renee after the passage of only eighteen days and executed the will after the passage of only twenty-seven days. Additionally, he argues that Renee did not affirmatively represent that she did not ask Eddie to provide for her in his will, either prior to or after they married.

¶ 15. Renee asserts that Milt produced no evidence that she was present during any of Ott's discussions of the will prior to, during, or after its execution. He also produced no evidence that she was present when Eddie sought additional advice from Robinson roughly fifteen months later. Furthermore, Renee contends that Milt produced no evidence that she arranged Eddie's appointments with the attorneys or paid for their services in the procurement of his will. In contrast, Renee submits that she produced affidavits from witnesses and documents detailing: the estranged relationship Milt had with his father; Eddie's capacity to make the will, including his wish to exclude Milt; observations of his strong-willed personality in general and during the relevant time period; a doctor's observations of Eddie's testamentary capacity to make decisions; and evidence that Eddie understood the nature of the disposition of his estate. Additionally, Renee, in her affidavit, disputed any claims that she influenced Eddie's decision.

¶ 16. The record supports Renee's assessment of the proceedings in the chancery court. While Milt is correct in his assertion that it is improper for a chancellor in a will contest to adjudicate facts unless the parties have agreed to dispense with a jury, he fails to fully appreciate that there must be genuine issues of material facts to be determined by a jury and that after Renee moved for summary judgment, with supporting affidavits, showing no genuine issue of material fact on the issues of testamentary capacity and undue influence, he could not rest on his general allegations and suppositions regarding his father's relationship with Renee and his father's mental health. He, as the contestant of Eddie's will, was required to bring forth an affidavit or affidavits demonstrating "sufficient evidence to establish the essential elements of [his] case on which [he] would bear the burden of proof at trial." Karpinsky v. American Nat. Ins. Co. , 109 So.3d 84, 90 (¶ 17) (Miss. 2013). Our perusal of the record indicates that he did not come close to meeting his burden.

¶ 17. Milt offered no evidence to substantiate his claims at the trial level and does not do so here. The will was created three years prior to Eddie's death, and there is no indication in the record that he lacked the testamentary capacity to create it or that he suffered undue influence from Renee. We hold that the chancellor's findings on this issue are supported by substantial evidence. Therefore, the judgment of the Chancery Court of Amite County is AFFIRMED.

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

      Approximately two months prior to Eddie executing his will, he and Milt, who had been working with Eddie in Eddie's glass-installation business, had a major falling out, resulting in Eddie firing Milt. Even prior to Milt being terminated from his father's business, he and his father were not on good terms.

      It is undoubtedly true that a husband or a wife may exercise undue influence upon the other spouse, but the mere fact that there is a close relationship between the parties in a marriage does not mean that one's influence upon another is undue influence. The influence which a loyal wife, by her virtues, kindnesses and devotion, gains over her husband's affection and conduct, whereby a husband is caused to make a will in her favor, is no ground for refusing to admit the will to probate.
      Genna v. Harrington , 254 So.2d 525, 528-29 (Miss. 1971).


author: LEE, C.J., FOR THE COURT:

text:
    Rob HARRIS, Appellant v. STONE COUNTY BOARD OF SUPERVISORS and Mississippi Public Entity WC Trust, Appellees
    NO. 2017-WC-01396-COA
    Court of Appeals of Mississippi.
    September 25, 2018
    ATTORNEY FOR APPELLANT: YANCY B. BURNS, JACKSON.
    ATTORNEY FOR APPELLEE: WALTER J. EADES, GULFPORT.
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal we must determine whether the Mississippi Workers' Compensation Commission (Commission) erred when it found that Rob Harris was entitled to permanent partial disability benefits rather than permanent total disability benefits following a work-related injury to his left lower extremity. Finding the Commission's decision was not supported by substantial evidence, we reverse the Commission's decision, and reinstate the decision of the Administrative Judge (AJ).

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 29, 2012, Harris suffered a left-knee injury while at work with Stone County. Prior to the work-related injury, Harris had been employed by the County for eleven years cutting grass, keeping up the county buildings, and performing custodial duties. After the injury, Harris underwent multiple surgeries to his left leg and reached maximum medical improvement (MMI) in August 2016. Harris underwent a functional capacity exam (FCE) that showed he was "able to work full time and perform [duties while] sitting frequently and standing occasionally throughout the workday." The FCE recommended that Harris receive a thirty-one percent impairment rating to the left lower extremity. These results and recommendations were adopted by Dr. Robert Dews, Harris's treating physician, at the time he opined Harris had reached MMI.

¶ 3. After reaching MMI, Harris inquired with the County about the possibility of employment that was less physically demanding. The County responded that there were no positions available within Harris's physical limitations. Harris was fifty years old, had earned a high-school diploma, but had no vocational training or clerical or office-job experience. Harris's work history prior to employment for the County included working on an assembly line at a plywood plant and cutting grass and custodial duties at a water park in Wiggins, Mississippi.

¶ 4. In an "Initial Vocational Evaluation and Labor Market Survey" dated November 15, 2016, Kathy Smith, a certified vocational-rehabilitation counselor, opined on behalf of the County that Harris had "the ability to be employed in a very limited number of occupations in and around his current geographical area." Kathy identified seven "potential employment opportunities" paying between $7.25 and $10.00 per hour that were sedentary in nature for which Harris could apply. One month later, Kathy identified another five employment opportunities in a report dated December 14, 2016. Harris applied for these positions from the report, as well as a several other positions, and registered with the WIN Job Center, but he was unable to secure employment through these efforts. Harris's vocational expert, Ronnie Smith, testified by deposition that Harris would have a difficult time securing employment.

¶ 5. The County admitted that Harris had sustained a compensable injury. At a hearing before the AJ, the parties stipulated that (1) Harris sustained a work-related injury to his left knee on or about May 29, 2012; (2) his average weekly wage at the time of the work-related injury was $469.20; (3) there were no issues remaining to be decided regarding the reasonableness and necessity of the medical treatment Harris had received; (4) there were no remaining issues to be decided regarding the existence and extent of temporary disability benefits; and (5) Harris reached MMI on August 18, 2016. The only issue before the AJ was "the existence and extent of permanent disability attributable to Harris'[s] work-related injury." The AJ determined that Harris was permanently and totally disabled and entitled to permanent total disability benefits pursuant to Mississippi Code Annotated section 71-3-17(a) (Rev. 2011) of $312.82 beginning May 30, 2012, and continuing for a period of 450 weeks as compensation for Harris's work-related disability.

¶ 6. The County appealed the decision to the Commission, which reversed the AJ's finding that Harris was permanently and totally disabled and instead found that Harris was entitled to permanent partial disability benefits under section 71-3-17(c) of $312.82 beginning August 18, 2016, and continuing for a period of 175 weeks. Harris now appeals, arguing that (1) the County failed to rebut his prima facie showing of permanent total disability, and (2) he met his burden to establish permanent total disability. We address Harris's issues in turn and include additional facts as relevant to the discussion.

STANDARD OF REVIEW

¶ 7. "It is well-settled law in this State that the Commission is the ultimate finder of fact in workers' compensation cases, and where substantial credible evidence supports the Commission's decision, then, absent an error of law, the decision must stand without judicial interference." Logan v. Klaussner Furniture Corp. , 238 So.3d 1134, 1138 (¶ 11) (Miss. 2018). However, this Court will not hesitate to reverse the Commission's decision "where findings of facts are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious."

Bennett v. Miss. State Dep't of Health , 211 So.3d 773, 776 (¶ 8) (Miss. Ct. App. 2016).

DISCUSSION

¶ 8. Harris claims that the Commission erred when it reversed the AJ's finding that he was permanently totally disabled, and instead found that Harris suffered permanent partial loss to a scheduled member. Specifically, he argues that the County failed to rebut his prima facie showing of permanent total disability and further argues he established he was permanently totally disabled.

¶ 9. "A worker injured in the course and scope of [his] employment is entitled to compensation to the extent that he has been incapacitated to earn wages." Lifestyle Furnishings v. Tollison , 985 So.2d 352, 359 (¶ 18) (Miss. Ct. App. 2008) (internal quotation mark omitted) (citing Marshall Durbin Inc. v. Hall , 490 So.2d 877, 880 (Miss. 1986) ). The claimant bears the burden of proving the existence of a disability and its extent. Id. at (¶ 21). "The order of proof is subject to a burden-shifting scheme." Id.

¶ 10. "To establish a prima facie case for permanent total disability, the claimant has the burden to show he has sought and been unable to find work in the same or other employment." Howard Indus. Inc. v. Satcher , 183 So.3d 907, 912 (¶ 14) (Miss. Ct. App. 2016) (internal quotation marks omitted). "The claimant can also establish a prima facie case for total disability if, after reaching MMI, the claimant reports back to the employer for work and the employer refuses to reinstate or rehire him." Id. (internal quotation mark omitted).

¶ 11. In the present case, it is undisputed by the parties that Harris suffered a compensable work-related injury to his left lower extremity on May 29, 2012. The parties stipulated that Harris reached MMI on August 18, 2016. The record shows that after reaching MMI, Harris inquired with the County about the possibility of employment that was less physically demanding. The County responded that there were no positions available within Harris's physical limitations. As such, Harris established a prima facie case of total disability. At this point, the burden then shifted to the County to rebut the presumption of total disability by showing that Harris only suffered a partial disability or no loss of wage-earning capacity. Lifestyle Furnishings , 985 So.2d at 360 (¶ 21).

¶ 12. The Commission found that the County successfully rebutted the presumption of total disability, citing that Harris "was released to sedentary duty for up to eight (8) hours per day," and "the vocational expert testimony identifying several jobs which [Harris] is qualified to perform that earn $7.25 to $10.00 per hour." This evidence does not, however, support a finding that the County successfully rebutted the prima facie showing of total disability, but rather, supports Harris's contention that he sustained permanent total disability. We discuss the issue below.

¶ 13. Once a claimant makes a prima facie showing of total disability as Harris did, the burden shifts to the employer to rebut or refute the claimant's evidence. Lott v. Hudspeth Ctr. , 26 So.3d 1044, 1049 (¶ 15) (Miss. 2010). Rebuttal is accomplished "by showing that the claimant only suffered a partial disability or no loss of wage-earning capacity." Lifestyle Furnishings , 985 So.2d at 360 (¶ 22). "The employer may present evidence (if any) showing that the claimant's efforts to obtain other employment were a mere sham, or less than reasonable, or without proper diligence." Id. "The employer may accomplish this by setting forth facts showing that suitable work was available to the claimant." Id. "Factors which should be considered in determining loss of wage-earning capacity include the amount of education and training which the claimant has had, his inability to work, his failure to be hired elsewhere, the continuance of pain, and any other related circumstances." Id. at (¶ 25) (internal quotation mark omitted).

In assessing the reasonableness of a claimant's job search, relevant factors for consideration are: the economic and industrial aspects of the local community, the jobs available in the community and surrounding area, the claimant's general educational background, including work skills, and the particular nature of the disability for which compensation is sought.

Id. (internal quotation mark omitted).

¶ 14. The record showed that Harris was fifty years old with no vocational training past high school. His entire employment history was limited to custodial and maintenance work, including with the County for the past eleven years. It is undisputed that due to Harris's work-related injury, he was unable to return to the same type of employment he had previously occupied. Harris applied for all of the jobs listed by the County's vocational expert, as well as other jobs, and was not hired. Additionally, all of the jobs listed by the County's vocational expert required clerical or office skills, which the evidence showed Harris did not possess. The range of pay for these potential employment opportunities, which Harris did not qualify for by education or training, was less than his pre-injury earnings, even at the highest end of the range. The County's vocational expert admitted that Harris's ability to be employed in and around his geographical area was very limited and that he should "participate in retraining or further education to better qualify for sedentary employment." Harris's vocational expert opined that it was unlikely that Harris could secure employment. The medical testimony showed that Harris had sustained permanent impairment with Dr. Dews opining Harris would "no longer be able to be employed in any sort of long-term job that would require any significant physical demands."

¶ 15. We find that the Commission's decision that the County rebutted the prima facie showing of total disability was not supported by substantial evidence in the record. Further, there is not substantial evidence in the record to support a finding that Harris suffered only a permanent partial disability or no loss of wage-earning capacity. As such, the Commission's decision is reversed, and the AJ's decision, which was supported by substantial evidence, is reinstated.

¶ 16. REVERSED AND RENDERED.

IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: TINDELL, J., FOR THE COURT: IRVING, P.J., CONCURRING IN PART AND DISSENTING IN PART:

text:
    ROBERTS CONTRACTING INC. and Fidelity & Deposit Company of Maryland, Appellants/Cross-Appellees v. MERSINO DEWATERING INC., Appellee/Cross-Appellant
    NO. 2016-CA-00945-COA
    Court of Appeals of Mississippi.
    September 25, 2018
    ATTORNEYS FOR APPELLANTS: STEPHEN FRED LIBBY, ADAM M. NAHMIAS
    ATTORNEYS FOR APPELLEE: CHRISTOPHER DANIEL MEYER, BRADLEY BARRON VANCE, Jackson
    EN BANC.
   TINDELL, J., FOR THE COURT:

¶ 1. This appeal concerns a construction-contract dispute between Roberts Contracting Inc. (RCI) and Mersino Dewatering Inc. (MDI). RCI appeals the DeSoto County Circuit Court's holding that RCI's contractual breaches entitled MDI to damages and prejudgment interest. MDI's cross-appeal concerns the failure of the circuit court to delineate the method for calculating prejudgment interest. Our review reveals no error in the circuit court's determination of the contractual dispute between the parties. The only modification we find necessary is in the circuit court's order regarding the type and amount of prejudgment interest awarded by the judgment. Therefore, we affirm and, applying longstanding tenets of contract law, modify the order with our determination that the prejudgment interest applicable to the judgment shall be computed as simple interest at the interest rate of 1.5% per annum from the date of the breach (March 18, 2010).

FACTS

¶ 2. DeSoto County Regional Utility Authority (the Authority) required the Walls-Lagoon Project for improvement and expansion of a portion of DeSoto County's regional sewer system. Phase two of the Walls-Lagoon Project included, among other things, the trenching for and installation of approximately 11,300 lineal feet of sewer line several feet below the ground surface in Walls, Mississippi.

¶ 3. RCI served as the Authority's general contractor on the project and installed the subsurface-mainline-sewer pipe on the project. Due to the project's proximity to certain bodies of water, a necessary component of the project was dewatering. RCI's commencement and completion dates relied upon proper dewatering. Dewatering is the act of removing ground water from a specified area to lower the natural water table.

¶ 4. MDI prepared and sent RCI a proposal for the dewatering aspects of the project. RCI accepted MDI's dewatering contract (MDI contract), and RCI returned the executed MDI contract to MDI. The price provision of the MDI contract was as follows:

Mainline Sewer Dewatering - [MDI] will install deepwells for approximately 11,300 lineal feet of sewer at a per foot cost of $55[ ] per foot for deepwells [seventy] feet deep with a minimum charge of 1,000 lineal feet per mobilization. Each individual system (approximately 1,000 feet per system) will be provided for up to [six] weeks, after which time each well will [be] provided at a rental rate of $600[ ] per well per week. Generators will be provided at.[ ] A mob/demob fee of $6,750[ ] each way will be charged at the start and completion of the job. This puts the total for the project at a cost of $635,000[ ] with[ ]out overruns on the equipment. In the event that the footage is increased, the $55[ ] per foot price will be applied to that.

The MDI contract further contained a detailed scope of work that delineated the responsibilities of both MDI and RCI separately in multiple-bullet point descriptions, which included but were not limited to the following:

[MDI] will be responsible for ...
[d]elivery of equipment to job site ...
[d]rilling and developing wells ...
[g]enerator and electrical distribution to power the dewatering system, ...
[d]emobilization of equipment upon completion ... [, and]
[RCI] is responsible for ...
[a]ll fuel required for the operation of the dewatering system ...
[a]ssistance in loading of equipment on [MDI] trucks upon project completion....

¶ 5. Thereafter, RCI submitted an Associated General Contractors subcontract (RCI subcontract) with a general scope-of-work paragraph and general overall-pricing provision for the sum of $635,000 to MDI. This sum comports with the MDI contract's calculated cost of 11,300 linear feet of dewatering at fifty-five dollars a foot added to an equipment mobilization cost of $6,750 and a demobilization cost of $6,750. Adding to RCI's subcontract, MDI incorporated, by handwritten notation, the detailed scope-of-work provisions from the previously executed MDI contract. MDI executed the RCI subcontract on or about May 12, 2009. Together, these two documents form the contract between the parties for the dewatering aspects of the project.

¶ 6. In addition to the dewatering, MDI provided certain pumps and accessories (trash pumps) as rentals for use on the project to RCI. Those trash pumps allowed the pumping of sewage and solids on the project. There was no signed written agreement between the parties regarding the trash pumps. But, the parties operated in accord with the payment provisions of a trash-pumps rental proposal forwarded to RCI prior to the start of MDI's subcontract work.

¶ 7. Between late May and early June 2009, MDI mobilized on site at the project. From July 24, 2009 until February 2010, MDI provided dewatering-related labor, services, and equipment, along with rental trash pumps. Per the specifications of the project itself, the dewatering operation was to lower and maintain the water table at least five feet below the bottom of the pipe-trench excavation (required level). RCI could not begin installing mainline sewer pipe until that required level was reached. On July 29, 2009, the parties met with Waggoner representatives to discuss delays due to flooding, the amount of rain on the project site, and the slow pace at which the water table was being drawn down. As a result, MDI installed an additional well to aid the dewatering to reach the required level and allow RCI to begin installing mainline pipe. MDI installed and provided this additional work and equipment at no charge.

¶ 8. Waggoner determined when RCI could begin installing mainline pipe and whether MDI had reached the required level. Eventually, Waggoner determined that MDI met the required level in September 2009 but did not permit RCI to begin laying mainline pipe on the project until October 1, 2009. Despite multiple delays to RCI's scope of work, RCI completed the project on time and was not assessed penalties or damages by the Authority for untimely performance.

¶ 9. RCI contends the terms of the MDI contract, particularly the payment terms regarding the use of each deepwell system beyond six weeks, should not be enforced. But, Cotton Roberts, RCI's president, testified that RCI provided the fuel on the project because it was required of RCI pursuant to the scope-of-work provision in the MDI contract. Roberts also testified that the governing agreement between the parties was a unit-price contract as stated in the price-quotation portion of the MDI contract rather than the general overall-price provision in the RCI subcontract. Additionally, the parties performed as detailed in the MDI contract's scope-of-work provision: MDI provided deepwells for dewatering; RCI paid fifty-five dollars per lineal foot of sewer-pipe laid in those dewatered areas; MDI provided generators to power the dewatering system; MDI mobilized and demobilized the equipment needed; and MDI forwarded detailed invoices on a regular basis to RCI.

¶ 10. For the dewatering work and trash-pump rentals, RCI paid MDI a total of $612,448. MDI claimed it was owed an additional $117,690.30. Following a two-day bench trial on December 16-17, 2015, the circuit court entered judgment in favor of MDI in the amount of $67,579.

STANDARD OF REVIEW

¶ 11. "The standard of review for questions concerning the construction of contracts are questions of law that are committed to the court rather than to the fact-finder." Fairchild v. Bilbo , 166 So.3d 601, 605 (¶ 9) (Miss. Ct. App. 2015) (quoting Cherry Bark Builders v. Wagner , 781 So.2d 919, 921 (¶ 5) (Miss. Ct. App. 2001) ).

"Appellate courts review questions of law de novo." Id.

¶ 12. This Court must defer to the circuit court's factual determinations when they are supported by substantial evidence unless the circuit court abused its discretion, was manifestly wrong or clearly erroneous, or applied an erroneous legal standard. Covington County v. G.W. , 767 So.2d 187, 189 (¶ 4) (Miss. 2000) (quoting Church of God Pentecostal Inc. v. Freewill Pentecostal Church of God Inc. , 716 So.2d 200, 204 (¶ 15) (Miss. 1998) ).

DISCUSSION

¶ 13. On appeal, RCI raises six points of error: (1) failure of the circuit court to properly interpret and enforce the multiple contracts between the parties; (2) the circuit court's finding breach on the part of RCI; (3) the circuit court's award of damages to MDI; (4) the circuit court's denial of RCI's motion in limine to exclude certain damage testimony; (5) the circuit court's award of prejudgment interest to MDI; and (6) the trial court's failure to rule on RCI's affirmative defenses. MDI cross-appealed on the issue of calculating prejudgment interest.

I. The Circuit Court Properly Interpreted and Enforced the Contracts Between RCI and MDI.

¶ 14. The parties agree that the MDI dewatering contract of May 8, 2009 and the RCI subcontract of May 12, 2009 constitute a contractual agreement for dewatering of the project site. Separately, the circuit court found the parties entered into a second contract for the rental of trash pumps for the pumping of solids. On this issue, the parties agree there was no executed written agreement regarding the rental of the trash pumps. But, "parties may agree to be bound by their written contract even though it is not signed by either one of them, or when it is signed by only one of them." McInnis v. Se. Automatic Sprinkler Co. , 233 So.2d 219, 221 (Miss. 1970) (quoting 17 C.J.S. Contracts § 62 (1963) ). The record shows that MDI provided, and RCI utilized and paid for, at least two trash pumps and related accessories between June 2009 to January 2010. MDI's provision of trash pumps and accessories, and RCI admitted use of and payment for those pumps, reflects the parties's agreement to be bound by the MDI trash-pump proposal.

II. The Payment Terms in the Dewatering Contract Regarding the Use of each Deepwell System Beyond Six Weeks Was Clear and Unambiguous.

¶ 15. RCI's issue with the circuit court's interpretation of the contracts concerns: (1) a conflict about the terms and conditions of RCI's dewatering contract with the Authority and the specific terms and conditions of MDI's dewatering subcontract with RCI; and (2) the application of the MDI subcontract-payment terms to the actual services and equipment MDI provided.

¶ 16. In interpreting contracts, courts generally first determine whether the express wording of the contract is ambiguous. Miss. Comm'n on Envtl. Quality v. Bell Utils. of Miss. LLC , 135 So.3d 868, 878 (¶ 27) (Miss. 2014). Only then if that wording is ambiguous do we construe the wording against its drafter. Miss. Comm'n on Envtl. Quality , 135 So.3d at 878 (¶ 27).

¶ 17. The MDI contract defines an individual system to be approximately 1,000 feet of installed deepwell for dewatering. The MDI contract-price quotation is listed at an expected 11,300 lineal feet and $55 per lineal foot for deepwell-system installation and six weeks of use. After six weeks of use, the MDI contract lists each system's rental cost for use thereafter at a rental rate of $600 per deepwell system per week. Mobilization and demobilization was set to cost $6,750 each way. The MDI contract delineates that, at this pricing, and including regular preventative maintenance, the total cost of the project is set to be $635,000 "without overruns on the equipment." The MDI contract further explains that the stated rental rates apply only after the stated initial-use time frame of six weeks. In this contract language, we agree with the circuit court, find no ambiguity, and find no conflict. The MDI contract-description provision states that the price quotation includes the cost of mobilization, installation, equipment, maintenance and demobilization. Because the price provisions are not ambiguous, the circuit court properly enforced the plain meaning of those provisions as written. Id. ; McFarland v. McFarland , 105 So.3d 1111, 1119 (¶ 23) (Miss. 2013).

¶ 18. RCI's contract with the Authority called for dewatering payments simply on a per-lineal-foot completed basis. MDI's dewatering subcontract with RCI more specifically set forth the respective duties of RCI and MDI and specifically delineated a pricing schedule based on a six-week time period of use for each dewatering system. Use of any of the individual dewatering systems for any period longer than six weeks, as an overrun, required additional rental payments to MDI per additional week of use.

¶ 19. Defining the specific commencement of the time frame for the six-week rental period for each dewatering system constituted a primary dispute between the parties. Marco Mersino, a MDI employee, testified that billing on the dewatering systems began "from the date of pumping." Mersino explained that pumping was required to perform the defined service of "dewatering," and that, in line with typical industry standards, once a system started pumping, the six-week rental period began on that system. Although Mersino testified to communicating that the system rental began upon pumping to "Cotton Roberts and the engineer," Cotton Roberts and Brad Roberts, RCI's vice president, denied being informed that the rental periods for the systems began when the water started pumping. The RCI witnesses testified that they understood the rental period would begin only when the system reached the required level of dewatering.

¶ 20. Without a bright-line defined commencement date in the MDI subcontract, we find an ambiguity highlighted in these conflicting views on the MDI dewatering subcontract term for the commencement of the system rental period. The trial testimony seems to provide two reasonable interpretations of the system rental commencement terms. On review, we adhere to long-standing contract law to evaluate the terms of a contract that are subject to more than one reasonable interpretation. This is a question properly submitted to the fact-finder. Royer Homes of Mississippi, Inc. v. Chandeleur Homes, Inc. , 857 So.2d 748, 752 (¶ 8) (Miss. 2003). In a bench trial, as here, the fact-finder is the trial judge. The circuit court reviewed the contracts, viewed the witnesses, heard their testimony, and determined that system rental began upon commencement of pumping. Upon review of the circuit court's interpretation of the dewatering payment provisions, we find no error.

III. RCI Breached the Contract.

¶ 21. To recover for a breach of a contract, MDI had the burden to prove by a preponderance of the evidence: (1) the existence of a valid and binding contract; and (2) RCI's breach of the contract. Bus. Commc'ns Inc. v. Banks , 90 So.3d 1221, 1225 (¶ 11) (Miss. 2012). We have discussed the valid and binding contracts that existed between the parties. On this point of error, MDI had the burden at trial to show that RCI breached those contracts in failing to pay for the equipment and services provided. The circuit court's factual findings cover six pages of well-delineated support for its determination that RCI failed to pay certain calculable amounts due to MDI for the equipment and services provided under the contracts.

¶ 22. After our thorough review of the record and the circuit court's precisely descriptive order, we find the circuit court's factual determination that RCI failed to pay for numerous specific items to be supported by substantial evidence. Therefore, this point of error is without merit.

IV. The Circuit Court Properly Denied RCI's Motion in Limine Regarding MDI's Business Records.

¶ 23. RCI's motion in limine to exclude MDI's business records was thoroughly argued by the parties and discussed by the circuit court in the record. RCI argued that MDI's invoices failed to satisfy Mississippi Rule of Evidence 803(6)'s business-records exception requirements.

¶ 24. Prior to trial, RCI filed a motion in limine to exclude testimony and evidence regarding MDI's damages, specifically: MDI's memorandum of billable charges, a MDI supervisor's workflow drawings, and MDI's invoices (disputed documents). In that motion, at trial and on appeal, RCI argued that this evidence was inadmissible and not in compliance with Mississippi Rule of Evidence 803(6).

¶ 25. "This Court grants a high degree of deference to the trial court's decision to suppress or admit evidence and will not find error absent a clear abuse of discretion resulting in prejudice." Cassibry v. Schlautman , 816 So.2d 398, 403 (¶ 17) (Miss. Ct. App. 2001). "Under Rule 803(6), the focus is properly placed on the time period when the documents were created, the trustworthiness of the documents, and whether their creation was in the regular course of business." Ferguson v. Snell , 905 So.2d 516, 519 (¶ 12) (Miss. 2004).

¶ 26. The record reveals that the disputed documents were created in the regular course of business by employees of MDI. Marco Mersino, an MDI employee, testified at trial. Mersino had responsibilities for invoicing the projects he oversaw. Mersino testified that the project site superintendent relayed the dewatering system, station number and footage completion information to him. Thereafter, Mersino used that information to created the billable-charges sheet. In turn, Mersino turned in the billable charges to accounting. Accounting then created an invoice that Mersino approved before it was sent to the customer, RCI. Mersino was not the employee on site visually inspecting the progress of the project, but "it is not necessary to call or to account for all participants who made the record." Miss. Gaming Comm'n v. Freeman , 747 So.2d 231, 242 (¶ 48) (Miss. 1999) ; see M.R.E. 803(6) advisory committee note. "It is only necessary that testimony concerning the source of these documents is offered by an individual with knowledge who is acting in the course and scope of the regularly conducted activity." Ferguson , 905 So.2d at 520 (¶ 12).

¶ 27. MDI used this process on the various projects Mersino oversaw. He testified that he created memoranda of billable charges based on information from the site superintendents or project managers of the various jobs. He testified the billable charges documentation on this project was authored and created at or near the time he received the information. Further, he testified that the memoranda of billable charges are documents MDI kept in the course of its regular business activity. Finally, there is nothing in the record to suggest untrustworthiness.

¶ 28. In compliance with Mississippi Rule of Evidence 803(6) therefore, the circuit court did not abuse its discretion in admitting the MDI memoranda of billable-charge invoicing documentation (memos) and properly denied RCI's motion in limine to exclude them.

V. The Damage Award is Supported by Substantial Credible Evidence.

¶ 29. In its judgment, after first determining the contracts under which the parties were operating and that RCI breached those contracts, the circuit court then moved on to a detailed analysis and computation of the damages. Applying our standard of review, the circuit court's judgment must be affirmed if it is supported by substantial credible evidence. Thompson ex rel. Thompson v. Lee County Sch. Dist. , 925 So.2d 57, 62 (¶ 7) (Miss. 2006). We "must review the record and accept all evidence that would reasonably support the judgment ...." Donaldson v. Covington County , 846 So.2d 219, 227 (¶ 34) (Miss. 2003) (citing Yarbrough v. Camphor , 645 So.2d 867, 869 (Miss. 1994) ). Where there is conflicting evidence, we must give great deference to the circuit court's findings. McElhaney v. City of Horn Lake , 501 So.2d 401, 403 (Miss. 1987).

¶ 30. The circuit court determined the amount of lineal feet dewatered under the parties' contracts to be 10,963 feet. At $55 per lineal foot, the total owed to MDI by RCI for this work equals $602,965. Because MDI invoiced RCI only $12,750 for the separate charges for mobilization and demobilization of this equipment, that is the amount the circuit court awarded. The circuit court specifically determined the amount of time RCI utilized each individual dewatering systems longer than six weeks and allocated the MDI contract price of $600 per system per week to each time period any individual system was overrun. Thus, the total in overruns was calculated to be $37,200. For the trash-pump contract, the circuit court ascertained that MDI was owed a total of $500 for mobilization for each pump used along with $408 rental per day of use. The total owed under trash-pump contract therefore totaled $27,112. In total, RCI owed MDI $680,027 and paid only $612,448. This left a balance due of $67,579. The MDI invoices, charge documents, RCI payment documentation and testimony at trial support the circuit court's calculations in detail. Thus, substantial credible evidence supports the amount of damages the circuit court awarded to MDI. The supreme court held in Greater Canton Ford Mercury, Inc. v. Lane , 997 So.2d 198, 206 (¶ 30) (Miss. 2008), that damage awards are findings of fact that are "only overturned when the trial judge has abused his discretion or in exceptional cases where such awards are so gross as to be contrary to right reason." We find no abuse of the circuit court's discretion, and we do not find the award to be contrary to reason. Accordingly, we affirm the damage award.

VI. RCI's Affirmative Defenses Issue Is Without Merit.

¶ 31. RCI claims that two defenses raised in its answer were "affirmative defenses" that required a ruling from the circuit court. But, RCI provides no support for its argument that the circuit court in a bench trial has any duty to sua sponte specifically address a party's affirmative defenses. Under Mississippi law, the burden regarding affirmative defenses is placed squarely on the defendant. It is the defendant who must timely and reasonably raise and pursue the enforcement of any affirmative defense. Estate of Grimes v. Warrington , 982 So. 2d 365, 370 (¶ 22) (Miss. 2008). Our review of the record reflects that the parties were afforded a full and complete opportunity to present their cases and defenses at trial. It further reveals the circuit court's thorough analysis of both the documentary and testimonial evidence presented at trial. The detail in the circuit court's order reflects consideration of the complaints of MDI and the affirmative defenses of RCI.

A. RCI's First-Material-Breach Defense

¶ 32. RCI explains the first-material-breach affirmative defense to mean that the party to first materially breach "a bilateral contract excuses further performance by the other party." Favre Prop. Mgmt. LLC v. Cinque Bambini , 863 So.2d 1037, 1044 (¶ 20) (Miss. Ct. App. 2004). RCI claims that MDI's first material breach arose from its repeated failures to timely achieve a certain required level of dewatering. Although it is apparent that RCI could not begin its work on the project until a required level was reached, RCI's assertion that MDI owed RCI a duty to reach the required level by a certain date has no support in the record. The MDI contract discussed MDI's duty to sufficiently lower the ground water level, but no date for completion of that part of the dewatering process was set. In fact, in the penultimate paragraph of the MDI contract, the contract expressly states that MDI shall not be held liable for delays. This first-material-breach defense has no support in the record. The terms of the contracts did not impose a duty upon MDI to reach a certain level of dewatering on a certain date. Therefore, the circuit court made no error in effectively denying, by not explicitly addressing, RCI's first-material-breach defense.

B. RCI's Set-off and Reduction of Damages Defense

¶ 33. Although not specifically discussed in the circuit court's order with a rejection or affirmation of RCI's set-off or reduction defense, RCI was in fact given credit by the circuit court for the payments RCI made to MDI. RCI was not charged for the use of generators, and RCI was not charged for certain damage and other charges MDI claimed but not supported with proof. Thus, in granting RCI certain set-offs in the damage calculation, the circuit court properly addressed and applied RCI's set-off or reduction reasoning, to the extent that RCI was entitled to certain set-offs that the circuit court discussed in its detailed order.

VII. Prejudgment Interest Awarded Is Hereby Modified.

A. Liquidated or Unliquidated Damages

¶ 34. The term liquidated damages "refers to damages that are set or determined by a contract when a breach occurs. Moeller v. Am. Guar. & Liab. Ins. Co. , 812 So.2d 953, 959 (¶ 18) (Miss. 2002) (quoting Black's Law Dictionary 395 (7th ed. 1999) ). Unliquidated damages "are [d]amages that have been established by a verdict or award but cannot be determined by a fixed formula, so they are left to the discretion of the judge or jury." Id. at 959-60 (¶ 18). The circuit court here used the actual scope-of-work and payment provisions of the parties' contracts to calculate and reconcile mathematically the damage award. This detailed calculation by the circuit court, following the specific terms set forth in the contracts between the parties, reflects the liquidated nature of the damage award. Here, the circuit court did not abuse is its discretion by finding the award was based on liquidated contractual damages.

B. Prejudgment Interest Calculation

¶ 35. The subject Order of May 11, 2016 provided for interest "at a rate of 1.5% from the date of the breach - i.e. March 18, 2010 (the 31 day following Mersino's submission of the last invoice[ ) ]." The MDI contract provided for interest on unpaid amounts at a rate of 1.5% on unpaid balances that exceed 30 days from the invoice date. Neither the Order nor the Proposal provided whether the interest should be calculated per annum or per month. Given the opportunity to reevaluate the interest issue, the circuit court denied MDI's motion for clarification on the interest issue. It appears from the record that because the notice of appeal by each party preceded the "Motion for Clarification" by five months, the sitting judge who wrote the initial "Order and Opinion" was no longer the judge; the then-sitting judge declined input.

¶ 36. Mississippi Code Annotated section 75-17-7 (Rev. 2016) requires judgments based on a contract to bear interest at the same rate delineated in the contract. Further, "[t]he general rule is that when interest is allowable, it is to be computed on a simple rather than compound basis ...." McNeel v. Miss. Dept. of Human Servs. , 99 So.3d 244, 246-47 (¶ 7) (Miss. Ct. App. 2012) (internal quotation mark omitted). Because neither the circuit court nor the contracts specified that the interest was to be computed on a compound basis, it is our opinion that the interest should be computed on a simple basis at the 1.5% rate noted in the contract and the circuit court's order. See id.

¶ 37. On the issue of computation on a per annum or per month basis, we look to standard and long-standing contract law. We construe ambiguous or vague terms of a contract against the drafter. Kight v. Sheppard Bldg. Supply Inc. , 537 So.2d 1355, 1358 (Miss. 1989). Mississippi law holds that when the terms of a contract are vague or ambiguous, they are always to be construed more strongly against the party preparing the doubtful textual provisions. Royer , 857 So.2d at 759 (¶ 39).

¶ 38. Here, it was MDI who first failed to delineate, in the contract they drafted, the means of calculating the interest called for on unpaid amounts. Further, MDI did not and cannot now provide additional evidence or guidance on terms missing from its own contract. Because we must construe the terms of a contract against the drafter, prejudgment interest should be computed on a simple and per annum basis.

CONCLUSION

¶ 39. The factual findings of the circuit court will not be disturbed on appeal absent a showing that the circuit court was clearly erroneous, was manifestly wrong, or applied an erroneous legal standard. No such error has been shown. Our thorough review of the record reveals sufficient testimony and documentary evidence to support the findings of the circuit court. The only modification we find necessary is in the circuit court's order regarding the type and amount of prejudgment interest awarded by the judgment. Therefore, we affirm and, applying longstanding tenets of contract law, modify the order with our determination that the prejudgment interest applicable to the judgment shall be computed as simple interest at the interest rate of 1.5% per annum from the date of the breach, that is, March 18, 2010.

¶ 40. AFFIRMED AS MODIFIED.

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

IRVING, P.J., CONCURRING IN PART AND DISSENTING IN PART:

¶ 41. I agree with the majority opinion except part VII (B), the discussion regarding the interest calculation. While this Court has jurisdiction to address the interest issue, it is my opinion that we should address only those issues that are properly placed before us by the parties. Since I believe we are procedurally barred from addressing the issue as to the kind of prejudgment interest and the proper calculation of it, I dissent from that portion of the majority opinion. To fully elucidate my point, a brief discussion of the relevant facts surrounding this issue is necessary.

¶ 42. The relevant portion of the circuit court's judgment reads: "Accordingly, pursuant to the terms of the Mersino Proposal, prejudgment interest is awarded at a rate of 1.5% from the date of the breach [,] i.e.[,] March 18, 2010 (the 31st day following Mersino's submission of the last invoice." The relevant portion of Mersino's proposal reads: "The [c]ontractor agrees to pay [i]nterest at a rate of 1.5% on unpaid balances that exceed 30 days from [i]nvoice date."

¶ 43. As can be seen from the quotes from both the circuit court's judgment and Mersino's proposal, the nature of the interest-that is, whether it is simple or compound-is not addressed. The majority acknowledges as much with the following statement: "[N]either the circuit court nor the contracts specified that the interest was to be computed on a compound basis ...." Majority op. at (¶ 36).

¶ 44. There are two problems with the majority's decision finding "that the interest should be computed on a simple basis at the 1.5% rate noted in the contract and circuit court's order." Majority op. at (¶ 36). First, the majority says that "[w]e construe... [the] terms of a contract against the drafter." Majority op. at (¶ 37). That is only true if the contract is ambiguous. I take no issue with the fact that any ambiguity in a contract should be construed against the drafter of the contract. However, the parties's contract is not ambiguous or confusing. The contract is simply silent on whether the interest should be computed on a monthly or annual basis and whether it should be compounded. "Silence on a subject does not create an ambiguity within a contract." Taylor Made Smiles PLLC v. Franklin Collection Service Inc. , 224 So. 3d 565, 570 (¶ 15) (Miss. Ct. App. 2017). Further, as this Court said in Taylor Made Smiles :

[T]he absence of a contractual provision governing a dispute does not necessarily equate to ambiguity in favor of the nondrafter.
Where a contract is silent as to one of its terms, the court is not bound to adopt a construction which is not compelled by the instrument and which no man in his right mind would have agreed to.

Id. at (¶ 16). (Internal quotation mark omitted) I can think of no good reason why Mersino would have agreed to have the interest on money owed to it computed on a simple, rather than compound, basis.

¶ 45. Second, even if the contract is ambiguous, the issue is procedurally barred. The judgment appealed from was entered on May 11, 2016. Neither party filed a motion for clarification or modification of the judgment pursuant to Rule 59 of the Mississippi Rules of Civil Procedure. Roberts Contracting filed its notice of appeal on June 9, 2016, and Mersino filed its notice of appeal on June 10, 2016.

¶ 46. On November 11, 2016, five months after filing its notice of appeal, Mersino filed a motion pursuant to Rule 60 of the Mississippi Rules of Civil Procedure to clarify the court's May 11, 2016 opinion and order, or alternatively, to reopen the evidence for a limited purpose. In the motion, Mersino sought clarification of the circuit court's May 11, 2016 order, noting that the order "fail[ed] to specify whether the stated interest is to be calculated on a monthly or per annum basis." The circuit court denied the motion on April 6, 2017, in an order wherein the court stated:

In this instance, the Court can and will assume that its omission of the method of interest calculation was inadvertent, being that such is integral to the enforcement of the judgment itself. However, because the original trier of fact in this case is no longer available to provide any insight, the undersigned Circuit Court Judge cannot currently state, with any degree of certainty, which method of interest calculation was intended at the time of the entry of the judgment. The Court accordingly cannot and will not rectify the omission by simply entering a supplemental order.
While the Plaintiff has presented a compelling argument for reopening the case [to] introduce evidence related to the calculation of prejudgment interest, the Court finds that the timing of the request warrants further consideration. Though the transcript and record on appeal have not yet been filed with the Supreme Court, they have been prepared and examined by both parties, and any necessary corrections have been proposed. At this stage of the appeals process, especially considering that the outcome of the appeal may render the issue of prejudgment interest moot, the Court finds that the interests of judicial efficiency would best be served by denying the request at this time. Should the Mississippi Supreme Court or Court of Appeals wish that this Court address the issue prior to their consideration of the appeal, the Court will, of course, do so.

¶ 47. Mersino did not file an appeal of the circuit court's denial of its Rule 60 motion. Yet, on appeal, Mersino argues in issue five of its brief that the circuit court erred in denying its motion to clarify.

¶ 48. On these facts, I believe the issue of what kind of interest and how it should be calculated is procedurally barred. The only issue regarding prejudgment interest that is properly before us is the issue presented by Roberts: whether the circuit court erred by awarding prejudgment interest to Mersino. Having said this, I readily agree with the circuit judge's statement, in denying Mersino's motion, that the method of interest calculation is integral to the enforcement of the judgment itself. I also am aware that since we are affirming the circuit court's allowance of prejudgment interest, the issue of the kind of interest and the method of calculation must be resolved. I do not take issue with the law cited and discussed by the majority in paragraphs thirty-six and thirty-seven of its opinion. I simply disagree with the majority's decision to resolve the issue because-on this record-the issue is procedurally barred. This problem could have been avoided had Mersino appealed the denial of its Rule 60 motion and moved to consolidate that appeal with the appeal on the merits.

¶ 49. For the reasons presented, I would affirm the judgment but remand the case to the circuit court for proper calculation of the prejudgment interest.

LEE, C.J., AND WESTBROOKS, J., JOIN THIS OPINION.

      This sentence "Generators will be provided at." omits the weekly rental price of generators and is herein quoted just as incomplete as in the MDI contract. The parties on appeal and the circuit court agreed that this omission entitled RCI to the use of generators at no additional charge.

      RCI denies receiving the signed subcontract from MDI with the handwritten notation incorporating MDI's delineated scope-of-work provision, but work began under that subcontract and, for the most part, in conformance with the MDI contract's scope of work.

      $635,000 equals 11,300 multiplied by $55 plus the sum of $6,750 multiplied by 2.

      Mersino likened this to renting a backhoe. The rental time period does not start on a backhoe when the contractor using the backhoe is finished digging a hole; it starts when the backhoe leaves the rental yard.

      Per the contract the total should have been $6,750 for mobilization and another $6,750 for demobilization (totaling $13,500) but the court awarded MDI only what it invoiced RCI.


author: WESTBROOKS, J., FOR THE COURT:

text:
    Gregory D. PALMER, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01164-COA
    Court of Appeals of Mississippi.
    September 25, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH, JACKSON
    BEFORE LEE, C.J., FAIR AND WESTBROOKS, JJ.
   WESTBROOKS, J., FOR THE COURT:

¶ 1. Gregory Palmer was convicted of gratification of lust in the Newton County Circuit Court in violation of Mississippi Code Annotated section 97-5-23 (1) (Rev. 2014). Palmer was sentenced to fifteen years with three years suspended, leaving twelve years to serve in the custody of the Mississippi Department of Corrections (MDOC). Additionally, Palmer was ordered to serve three years of supervised probation under the supervision of MDOC, as well as register as a sex offender with the Mississippi Department of Public Safety in accordance with Mississippi Code Annotated section 45-33-25 (Rev. 2015). Aggrieved, Palmer appeals. Finding no error, we affirm.

FACTS

¶ 2. Gregory Palmer was indicted and convicted of gratification of lust by a jury on August 7, 2017. Palmer resided at the Hidden Springs Arabian Horse Farm, along with Tricia McGehee, Betty Skinner, and K.S. Skinner was the great aunt and legal guardian of K.S., and K.S. referred to her as her mother. McGehee was Skinner's best friend who had Parkinson's disease and required constant care by others. Skinner and Palmer met at church sometime between 2014 and 2015, and subsequently Palmer asked for work. Skinner hired him as a farmhand and a caregiver for McGehee. Palmer lived on the farm in a house about 200 yards away from the main structure where Skinner, K.S., and McGehee all resided. During the 2016 school year, K.S. was home-schooled by Palmer's ex-wife Jennifer Palmer, but she quit. Skinner asked Palmer if he would serve as K.S.'s teacher, and he agreed.

¶ 3. Palmer and Jennifer had a fourteen-year-old daughter, K.P., who K.S. became friends with. Palmer would often take the girls to the fair, to other events, and places around town. On December 9, 2016, K.S., her brother, E.S., K.P., and another friend, H.H., went to Palmer's house for a sleep over. The goal of the sleep over was to prepare clothes and jewelry to sell at the flea market that Palmer had agreed to take them to the next day. In anticipation for the market, Skinner loaned Palmer her truck. K.S. testified that shortly after arriving she watched a movie with Palmer and E.S., while K.P. and H.H. were in the bedroom "having fun." K.P. and H.H. testified that they were in the other room but not for the entire time. K.P. stated that the bedroom door was always open because she was not allowed to close it and that she was in and out of the living room watching the movie, sometimes staying in the living room for ten minutes at a time. H.H. stated that she was in the room with K.P. sorting items but still watched the movie. Both K.P. and H.H. claimed that K.S. was never alone with Palmer.

¶ 4. K.S. stated that initially she was on the same couch as E.S., but Palmer called her to sit in the recliner chair with him on his lap. K.P. and H.H. testified differently. They claimed that K.S. was sitting on the arm of the recliner, not on Palmer's lap, and that her legs faced away from Palmer. H.H. claimed that K.S. only sat on the arm of the chair for fifteen or twenty minutes. K.S. stated that E.S. and Palmer had fallen asleep at the same point during the movie. She alleged that Palmer awoke, began to rub her shoulders, and touched her chest over and under her shirt thinking she was asleep. K.S. also asserted that Palmer touched her skin under her bra and inside of her underwear on her "private areas" without penetration.

¶ 5. After the alleged incident, K.S. stated that she went into the room with K.P. and H.H. to separate the clothes and jewelry. Shortly after, Palmer came in the room and told the girls to calm down and go to bed. About twenty minutes later, K.S. testified that she snuck out of Palmer's house after sending a text message to Skinner asking her to come get her. Skinner said that she could not leave McGehee unattended and told K.S. to go back to sleep. K.S. replied that she was already coming through the woods, which was not her usual route because she was afraid of spiders and would normally walk the paved way. When K.S. got home, she told Skinner about what happened, and Skinner asked Steve Diamond, a long time employee who also lived on the farm, to go get E.S. and her truck from Palmer's house. Diamond testified that K.S. came to his door "hysterical, terrified, shaking, and crying" to alert him to what was going on. After returning from Diamond's door, K.S. requested Skinner to call Jennifer so that she could protect K.P. from Palmer. Jennifer immediately came to the main structure on the farm. About thirty minutes after K.S. arrived back at her home, Skinner called the police.

¶ 6. Police captain Johnny Martin was dispatched to the farm around 3 a.m. and was told that Palmer touched K.S.'s breast and inside her underwear. Martin stated that K.S. was crying but was not hesitant to tell him the allegations. Martin testified that he did not go to Palmer's house but did speak to Palmer on the phone about the allegations and the possibility of an arrest warrant. There was no inquiry about K.S.'s clothes or seizure of clothes for forensic analysis, no photos were taken, and none of the other people present in Palmer's house at the time were spoken to.

¶ 7. The following Monday, December 12, 2016, K.S. spoke with Newton Police Investigator Bruce McCraw and wrote a statement. McCraw testified that K.S. was "very reluctant to tell the story" and that she seemed embarrassed or withdrawn about speaking to a stranger about the incident. McCraw stated that he did not go to Palmer's house, but he did talk to K.S. on the phone. About five days later, Palmer turned himself in to authorities. During the trial, K.S. testified that she was fifteen years old, K.P. testified that she was fourteen years old, and H.H. testified that she was twelve years old. Palmer was convicted by a jury of gratification of lust. Aggrieved, Palmer appeals.

STANDARD OF REVIEW

¶ 8. "The standard of review for determining whether the evidence is legally sufficient to sustain a conviction in a case tried without a jury is the same as the standard of review of a denial of a motion for a judgment notwithstanding the verdict." Bratcher v. State , 193 So.3d 639, 640 (¶ 5) (Miss. Ct. App. 2015). "This Court may only reverse where one or more of the elements of the offense charged is lacking to such a degree that reasonable jurors could only have found the defendant not guilty." Id. (internal quotation marks omitted).

When reviewing the denial of a motion for a new trial based on an objection to the weight of the evidence, appellate courts will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

Sims v. State , 127 So.3d 307, 313 (¶ 19) (Miss. Ct. App. 2013). "The evidence is viewed in the light most favorable to the [verdict]." Id. "Questions of law are reviewed de novo." Brown v. State , 83 So.3d 459, 461 (¶ 5) (Miss. Ct. App. 2012).

DISCUSSION

I. Whether the evidence was sufficient as to the element of Palmer's age at the time of the alleged offense.

¶ 9. Palmer argues that the State did not affirmatively prove the required element of his age, therefore, the only remedy is reversal of his conviction and a rendering of acquittal. The Mississippi Supreme Court has held that the defendant's age is an "essential element that must be proven for a defendant to be convicted under Section 97-5-23(2)," and it is the State who "bears the burden of proving a defendant's age as an affirmative fact." Campbell v. State , 125 So.3d 46, 54 (¶ 20) (Miss. 2013) (internal quotation mark omitted). The State did not proffer any evidence to prove that Palmer was over the age of eighteen at the time of the alleged event.

¶ 10. But, this Court has also held that "[w]e must acknowledge that the jury may consider all reasonable inferences from the evidence." Jenkins v. State , 101 So.3d 161, 171 (¶ 36) (Miss. Ct. App. 2012). Here, testimony was put forth that at trial Palmer had a fourteen-year-old daughter, along with testimony from Jennifer stating that they had been separated for fifteen years. This evidence, along with the fact the jury observed Palmer during the trial, is sufficient to show the jury could have reasonably inferred that Palmer was over the age of eighteen at the time of the alleged event. Accordingly, this issue is without merit.

II. Whether the guilty verdict was contrary to the overwhelming weight of the evidence.

¶ 11. Palmer's second assignment of error is that the verdict was contrary to the weight of evidence. "In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." Baker v. State , 802 So.2d 77, 81 (¶ 14) (Miss. 2001). In support of his claims, Palmer states that there was no police investigation, the only potential eye witnesses were never interviewed by police, and no physical evidence or photographs were taken.

¶ 12. The Mississippi Supreme Court has held that "[t]he unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence." Giles v. State , 187 So.3d 116, 125-26 (¶ 33) (Miss. 2016) (quoting Massey v. State , 992 So.2d 1161, 1164 (¶ 14) (Miss. 2008) ). "In addition, this evidence is sufficient especially if the conduct of the victim is consistent with the conduct of one who has been victimized by a sex crime." Massey , 992 So.2d at 1164 (¶ 14) (internal quotation mark omitted). Furthermore, the Court held that a "victim's physical and mental condition after the incident and the immediate reporting of a crime is corroborating evidence." Id.

¶ 13. Here, K.S. testified that while watching a movie Palmer woke up, started rubbing her shoulder, and touched her chest over and under her shirt, as well as below the waist inside of her underwear. Minutes after the alleged incident, K.S. left the house and ran home through the woods, something that both Skinner and Diamond testified she would have never done if she was not in distress due to her fear of spiders. Additionally, K.S. immediately reported the incident to Betty and the police were called shortly after. Even days after the initial reporting, Investigator McCraw stated that K.S.'s behavior during the interview was consistent with the actions of a victim of a sex crime.

Q: What was [K.S.]'s demeanor like when you met with her?
A: [K.S.] seemed very reluctant to tell the story. She seemed embarrassed or withdrawn ....
Q: Is that an uncommon behavior in these types of cases - -
A: No.
Q: - - through your experience?
A: Not in my experience, no.

¶ 14. Based on these facts, we cannot say that the jury's verdict was so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

CONCLUSION

¶ 15. Finding that through reasonable inferences the jury could have determined Palmer was over the age of eighteen and that the overwhelming weight of the evidence supports the jury's verdict, we affirm the circuit court's denial of Palmer's motion for a new trial.

¶ 16. AFFIRMED.

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

      The judgment reads "Section 45-33-21, et seq.;" however, the applicable statute is section 45-33-25.

      We refer to the minor children by their initials to protect their identities.