author: BEAM, JUSTICE, FOR THE COURT:

text:
    In the ESTATE OF Patrauna HUDSON:
    Fanny Hudson, Individually and on behalf of the Estate of Patrauna Hudson v. Yazoo City, Mississippi
    NO. 2016-CA-01384-SCT
    Supreme Court of Mississippi.
    June 28, 2018
    ATTORNEYS FOR APPELLANT: DAVID NEIL McCARTY, BARRY W. HOWARD, JACKSON
    ATTORNEYS FOR APPELLEE: ROBERT S. ADDISON, JACKSON, STEVEN JAMES GRIFFIN, FLOWOOD
    BEFORE RANDOLPH, P.J., MAXWELL AND BEAM, JJ.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. This case arises from the tragic 2014 death of nine-year-old Patrauna Hudson, who drowned in flash-flood waters that swept through a drainage ditch that ran alongside her family's residence. Patrauna's estate (the "Estate") filed suit against Yazoo City for wrongful death under the Mississippi Tort Claims Act (MTCA). The Yazoo County Circuit Court granted summary judgment in favor of Yazoo City (the "City") on all claims filed against it by the Estate, having found Yazoo City immune from liability under both the discretionary-function exception and the open-and-obvious exception contained in Mississippi Code Section 11-46-9. Miss. Code Ann. § 11-46-9(1)(d) and (v) (Rev. 2012).

¶ 2. The Estate appeals, maintaining that Yazoo City violated numerous city ordinances, along with certain federal regulations, when the City converted a portion of the drainage ditch downstream from the Hudson residence into a covered tunnel with two side-by-side culverts in 2007. The Estate argues that these laws imposed a ministerial duty upon Yazoo City, and the City breached that duty by failing to comply with all the mandatory requirements prescribed by these laws when the city implemented and carried out the 2007 project. Therefore, the Estate contends, the City is not immune from liability under Section 11-46-9(1)(d).

¶ 3. The Estate further maintains the trial court erred in finding that the "open and obvious" exception provided by Section 11-46-9(1)(v) was applicable in this case. The Estate says the flood danger caused by the City's failure to comply with these mandatory requirements was not open and obvious, and further, subsection (v) is inapplicable to a nine-year-old child who is incapable of negligence.

¶ 4. We find that the Estate's claim that Yazoo City is liable for the wrongful death of Patrauna that resulted from Yazoo City's failure to comply with its ordinances and federal regulations under the National Flood Insurance Program (NFIP), fails as a matter of law for failure to state a cause of action.

¶ 5. We also find that the Estate alleged in its complaint that Yazoo City was liable for negligently failing to maintain its drainage ditches. The Estate, however, abandoned this claim under the auspices of the test adopted by this Court in Brantley v. City of Horn Lake , 152 So.3d 1106 (Miss. 2014), which we recently overruled in Wilcher v. Lincoln County Board of Supervisors , 2016-CA-01429-SCT, 243 So.3d 177, 2018 WL 2371859 (May 24, 2018). Based on our de novo review of the record, there is slight evidence, which if developed further, may create a genuine issue of fact with regard to this claim. We find the Estate should be given the opportunity to do so.

¶ 6. Also, we find the trial court's ruling as to the open-and-obvious exception provided by Section 11-46-9(1)(v) was premature in this instance because factual questions currently remain, according to our review of the record.

¶ 7. Accordingly, we reverse and remand for further proceedings consistent with this Court's opinion.

FACTS AND PROCEDURAL HISTORY

¶ 8. On April 6, 2014, an intense storm system moved through Yazoo City, pouring five to six inches of rain on the area in a short amount of time. Patrauna lived at the corner of Seventh Street and Lamar Avenue with her mother, Fannie Hudson, and several of her younger brothers and sisters, the family having moved there six months earlier.

¶ 9. At approximately 8:00 p.m., Fannie instructed the children to go to their rooms and get ready for bed. When Fannie went to check on the children, Patrauna's eight-year-old sister Patrice told Fannie that Patrauna had gone out the back door to go swimming. Patrice and the clothes she was wearing were soaking wet.

¶ 10. According to Fannie, the family's entire back yard was flooded with water from the ditch that evening, which came up to the back steps of the family home. Fannie did not know exactly how Patrauna had ended up in the water. She said Patrice told her that Patrauna had pushed her (Patrice) into the water, and after Patrice got out, Patrice then had pushed Patrauna into the water. Fannie said according to Patrice, once Patrauna was in the water, Patrauna tried to come back, but the water pulled her back toward the ditch.

¶ 11. Patrice later stated in an affidavit: "On the day my sister drowned [Patrauna] was outside in the backyard playing like she was swimming. When [Patrauna] got out by the clothes line the water start[ed] to pull her. She tried to come back but the water pulled her back until it pulled her into the ditch."

¶ 12. When Fannie went outside to look for Patrauna, she saw a police officer and other individuals on the street that runs alongside her house. They all appeared to be searching around the ditch. Fanny asked them if they had seen a little girl. The officer told Fanny to go back in the house to make sure she was not inside. Fanny went back inside and searched but could not find Patrauna.

¶ 13. Law enforcement and community members searched for Patrauna throughout the evening. Her lifeless body was found by a search team the following evening in a drainage ditch about four blocks from her family's residence.

¶ 14. In March 2015, the Estate filed suit against Yazoo City under the MTCA, claiming Yazoo City had failed to (a) warn Patrauna of the dangerous nature of the Seventh Street drainage ditch; (b) adequately maintain, repair, and inspect the drainage ditch; and (c) require construction and improvements be performed to the drainage ditch in accordance with existing engineering standards, with approval of the appropriate governmental agency.

¶ 15. Discovery ensued, during which numerous depositions were taken. The Estate submitted an affidavit from Gillian Butler, a private civil engineer in the field of hydrologic and hydraulic engineering. For her expert opinion, Butler relied on all the depositions taken in the case, along with Yazoo City ordinances, flood-insurance study reports, National Flood Insurance Program (NFIP) regulations, public-safety guidelines, and other information.

¶ 16. Butler submitted a report with her affidavit, detailing a hydraulic analysis she had conducted on two, side-by-side culverts installed downstream from Patrauna's residence in 2007. Each culvert is approximately 405 feet in length, and forty-eight inches and thirty-six inches in diameter, separately. According to Butler's report, the two culverts increased the flood height upstream by approximately two inches and the velocity of flood water at the culvert inlet by 0.35 feet per second.

¶ 17. Butler opined that, prior to 2007, "storm water appears to have flowed along Seventh Street between Lee Street and Prentiss Avenue in an open ditch (save for the Lee Street crossing)." Based on board minutes taken from a city council meeting held in February 2007 by the Mayor and Board of Aldermen, action was taken to purchase 800 linear feet of drainage pipe for the Seventh Street ditch. The project appeared to have begun in late March or early April 2007.

¶ 18. In Butler's opinion, the decision to convert the Seventh Street ditch between Prentiss and Lee Avenues into culverts should have triggered an application for a "floodplain development permit." In turn, the application should have included an engineering analysis, along with public-safety considerations under the guidelines and standards for the installation of long culverts. According to Butler, Yazoo City did not follow these guidelines and standards, and the failure to do so led to the dangerous condition that caused Patrauna's drowning.

¶ 19. James Wayne Morrison, a private civil engineer who provides engineering consulting services to Yazoo City, explained in his deposition that the Seventh Street drainage ditch is part of the Willis Creek drainage system, which was dug in the 1940s. This system originated as a series of open ditches throughout Yazoo City. Morrison said Yazoo City is protected by a levee, and everything that drains inside the levee eventually makes its way to Lake Yazoo, where it is then pumped over the levee into the Yazoo River.

¶ 20. In describing the course that rainwater runoff takes from Seventh Street to the Yazoo River, Morrison said the "water drains from the hills in a western direction to a lateral ditch through the lateral ditches of [Seventh] Street and then to Martin Luther King and traverses on to the south side of [Seventh] Street [where] it intersects the main trunk line of the Willis Creek Drainage District and then goes south into Lake Yazoo."

¶ 21. According to Yazoo City, the "Drainage District dissolved in 1995, [and] its land interests within the city limits were conveyed to Yazoo City, including the drainage easement that runs along Seventh Street." The only significant improvement project involving the Seventh Street drainage ditch between the time Yazoo City acquired the drainage easement in 1994 and the date of Patrauna's drowning occurred in 2007, when parallel culverts were installed and covered along the ditch from Lee Avenue to Prentiss Avenue.

¶ 22. Morrison said the 2007 project was a joint project with Yazoo County. The county supplied the culverts, the equipment, and most of the manpower. Morrison said the City authorized approximately 800 feet of drainage pipe to be laid on Seventh Street, and the City split the cost with the county. Jimmie Drewery, the county road manager, chose the size of the pipes to match the size of the pipes that already existed under the roadway, one forty-eight inches in diameter, and the other thirty-six inches in diameter. The pipes were laid parallel to each other for approximately 400 feet.

¶ 23. Morrison said his only advice in the project was that the county use bituminous coated pipe "so that the pH of the soil wouldn't eat up the pipe too quickly." Morrison said no hydraulic analysis was performed in 2007. Morrison conducted a hydraulic analysis of the parallel pipes in November 2014, after Patrauna's death. He said the results did not show any increase in the flow of water in the portion of the ditch located beside Patrauna's residence. Morrison clarified, however, that his team did not duplicate the rain conditions of the April 6 event. He said they passed a volume of water equivalent to a ten-year rain event and a twenty-five-year rain event through the pipes. The April 6 event "was a severe extraordinary rain event[,]" much greater than a twenty-five-year rain event-which, according to Morrison, "is a 2 and a quarter inch rain an hour." Morrison said the parallel pipes were sufficient to handle "about a 20, 21 year rain event[,]" because that was the design standard of the existing pipes.

¶ 24. The record indicates that the Seventh Street drainage ditch in front of Patrauna's residence since has been covered. And Yazoo City has been covering other, similar drainage ditches throughout the city on a step-by-step basis.

¶ 25. The trial court granted summary judgment in favor of Yazoo City, finding that the City is immune from liability because the maintenance of drainage ditches is a discretionary function, and also because the ditch was an open and obvious danger.

¶ 26. Relying on Brantley , the trial court said it is required first to determine whether the overarching governmental function at issue is discretionary or ministerial. The court must then examine any narrower duty associated with the activity at issue to determine whether a statute, regulation, or other binding directive renders that particular duty a ministerial one, notwithstanding that it may have been performed within the scope of a broader discretionary function. Brantley , 152 So.3d at 1114.

¶ 27. The trial court found that, while Yazoo City does have ordinances in place that regulate the development of flood-prevention structures, it does not appear these ordinances were intended to assign a ministerial function to the City's ability to build ditches. Therefore, according to the trial court, the city is immune from liability because maintenance of the ditch is a discretionary function under Section 11-46-9(1)(d).

¶ 28. The trial court also found that, based on the MTCA, a "governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care." See Miss. Code Ann. § 11-46-9(1)(v) (Rev. 2012). The trial court found that the drainage ditch was an open and obvious danger in this matter. Fanny repeatedly had warned Patrauna not to play in or near the ditch, and Fanny had warned Patrauna on the night in question not to go near the ditch. The court found the fact that Patrauna was nine years old and that her age possibly affected her ability to appreciate the open and obvious danger did not serve as a bar to the open-and-obvious defense.

STANDARD OF REVIEW

¶ 29. The grant or denial of a motion for summary judgment is reviewed de novo. City of Magee v. Jones , 161 So.3d 1047, 1049 (Miss. 2015). The evidence is viewed in the light most favorable to the party opposing the motion. Id. Only if there is no genuine issue of material fact is the moving party entitled to summary judgment as a matter of law. Id. Questions of law, which include proper application of the MTCA, also are reviewed de novo. Maldonado v. Kelly , 768 So.2d 906, 908 (Miss. 2000).

DISCUSSION

¶ 30. The Estate argues Yazoo City violated numerous ordinances and federal regulations in its decision to convert a portion of the Seventh Street drainage ditch to culverts in 2007, and this change to the city's drainage system created the dangerous condition that caused Patrauna's death.

¶ 31. The Estate maintains that Yazoo City had a ministerial duty to comply with its ordinances and controlling federal regulations.

The Estate argues that because Yazoo City participates in the National Flood Insurance Program (NFIP), the City, as a participant, is governed by certain federal regulations, one of which provides: "These regulations must be legally enforceable, applied uniformly throughout the community to all privately and publicly owned land with flood-prone ... areas, and the community must provide the regulations take precedence over any less restrictive conflicting local laws, ordinances, or codes." 44 C.F.R. 60.1(b) (2009).

¶ 32. The Estate argues that Yazoo City, "in compliance with NFIP federal regulations," has adopted numerous ordinances which together required Yazoo City to "(a) obtain a development permit, (b) submit a plan to the city engineer, (c) conduct a hydraulic analysis, and (d) obtain an engineer's certification before implementing the 2007 project." (Citing Yazoo City, Miss., Code of Ordinances, §§ 11.5-3, 11.5-4, 11.5-5, 11-5.23, 11-5.32, 11-5.43(2), 18.7(a) and (b) (2005) ). The Estate submits that Butler's uncontested expert report sets out that Yazoo City "violated all of these ordinances and this regulation in enacting its ultimately deadly change in the drainage system of Yazoo City." For these reasons, according to the Estate, the duties imposed on Yazoo City were ministerial, not discretionary.

¶ 33. For authority, the Estate points to Mississippi Transportation Commission v. Adams , 197 So.3d 406, 412 (Miss. 2016), in which this Court held that the general discretionary function with respect to placement of traffic control devices was rendered ministerial by the Mississippi Transportation Commission's adoption of the Mississippi Standard Specifications for Road and Bridge Construction (the "Red Book"). Id. at 412-14. Adams reiterated that, under Brantley , even when a duty might be discretionary, there may be instances where "narrower duties encompassed in a broad discretionary function may be rendered ministerial through statute or regulation." Id. (quoting Brantley , 152 So.3d at 1113 ).

¶ 34. According to the Estate, as found in Adams , for purposes of Section 11-46-9(1)(d) immunity, any discretionary function Yazoo City had with the 2007 project was rendered ministerial by the City's adoption of the aforementioned ordinances and participation in the NFIP.

¶ 35. Yazoo City argues, however, that maintenance, inspection, and repair of municipal drainage ditches and channels are discretionary functions as a matter of law. Municipalities such as Yazoo City are authorized-but not required-under Mississippi Code Section 21-19-13 to construct and maintain drainage ditches if they choose to do so. That Section provides, in pertinent part, as follows:

(1) The governing authorities of municipalities shall have the power to establish, alter and change the channels of streams or other water courses, and to bridge the same, whenever so to do will promote the health, comfort and convenience of the inhabitants of such municipality.
(2) The governing authorities of any municipality shall also have the power and authority to incur costs and pay necessary expenses in providing labor, materials and supplies to clean or clear drainage ditches, creeks or channels, whether on public or private property, and to incur costs and pay necessary expenses in providing labor, materials and supplies in order to prevent erosion where such erosion has been caused or will be caused by such drainage ditches, creeks or channels. This paragraph shall not impose any obligation or duty upon the municipality and shall not create any additional rights for the benefit of any owner of public or private property.

Miss. Code Ann. § 21-19-13 (Rev. 2015).

¶ 36. Yazoo City maintains that because no statutes, ordinances, or regulations impose any affirmative duty on Yazoo City to maintain, repair, or inspect its drainage ditches, Yazoo City officials must use their judgment and discretion in determining whether, when, how, and to what extent these activities are conducted, in accordance with available funding and other resources. Yazoo City further contends that the Estate's reliance upon several provisions in Section 11.5 of the Yazoo City Code of Ordinances and the Yazoo County Flood Prevention Ordinance is misplaced. These ordinances require private developers to obtain from the City (or county, if applicable) a development permit before conducting construction activities within areas designated as special flood hazard areas and specify how to obtain such a permit. The City argues that these ordinances did not place a ministerial duty on Yazoo City to obtain a development permit from itself, nor did they place a ministerial duty on the city engineer to obtain his own authorization before commencing the 2007 project.

¶ 37. As mentioned, this Court recently overruled the Brantley test for determining when a claim against a governmental entity enjoys discretionary-function immunity under Section 11-46-9(1)(d), and restored the two-part, public-policy function test adopted by this Court in Jones v. Mississippi Department of Transportation , 744 So.2d 256 (Miss. 1999), for making that determination. See Wilcher , 243 So.3d at 185-86, 2018 WL 2371859.

¶ 38. Under the two-part, public-policy function test, courts were directed to consider (1) whether the act involved "an element of choice or judgment; and if so (2) whether the choice of judgment involved social, economic or political policy [considerations]." Jones , 744 So.2d at 262. Brantley abandoned this test and instead instructed the courts first to "consider the broadest function involved in order to make a baseline determination of whether the overarching function is discretionary or ministerial." Brantley , 152 So.3d at 1112-13. After this determination, further examination was then required to determine whether "any narrower duty associated with the activity at issue to determine whether a statute, regulation, or other binding directive renders that particular duty a ministerial one, notwithstanding that it may have been performed within the scope of a broader discretionary function." Id. at 1114-15.

¶ 39. As Wilcher explained, Brantley 's aim was to create a more workable rule for determining discretionary-function immunity. Wilcher , 243 So.3d at 182-83, 2018 WL 2371859, *3. But while well-intentioned, the new rule manifested an "unworkable departure from longstanding precedent," and overlooked the legislative intent behind Section 11-46-9(1)(d) -most importantly, "policy" considerations. Id.

¶ 40. Wilcher noted that Brantley 's analysis "overcomplicates the process of litigating a claim and places the success of a claim on the ability of the injured party's attorney to sift through the myriad and sometimes arcane regulations-creating extra layers of proof, which may have little or no practical effect on the actual negligent act ." Id. (quoting Crum v. City of Corinth , 183 So.3d 847, 854 (Miss. 2016) (Randolph, P.J., concurring in result only) (emphasis in original) ).

¶ 41. The other (and probably most significant) result of Brantley was the all-too-apparent and prevalent misunderstanding among practitioners, based on their reliance on Brantley , that Section 11-46-9(1)(d) allows for "actions based solely on violations of statutes and/or local ordinances or regulations, which [practitioners] argue impose 'ministerial' duties." Wilcher , 243 So.3d at 184, 2018 WL 2371859, *4. But as Wilcher explained, "this practice is certainly not what the Legislature intended[, and is in fact] completely backwards." Id.

¶ 42. Wilcher reiterated as follows:

Section 11-46-9(1) restores sovereign immunity. Simpson Cty. v. McElroy , 82 So.3d 621, 624 (Miss. Ct. App. 2011). It does not in itself create duties. Id. Furthermore, regulations do not create causes of action, and the MTCA does not grant a right to recover based on a mere violation of statute or regulation. Taylor v. Delta Reg'l Med. Ctr. , 186 So.3d 384, 390-91 (Miss. Ct. App. 2016). The general rule is that 'a mere violation of a statute or regulation will not support a claim where no private cause of action exists.' " Id. (quoting Tunica Cty. v. Gray , 13 So.3d 826, 829 (Miss. 2009) ).

Id.

¶ 43. Wilcher then pointed out:

Despite this, Brantley 's analysis wrongly zeroes in on applicable regulations and ordinances. And if a regulation is 'ministerial,' this Court began to presume that the alleged violation of that regulation or ordinance, itself, establishes a viable cause of action without even questioning if a claim would exist without the regulation.

Id. "As a result of Brantley , what the Legislature intended as a shield-discretionary-function immunity under Section 11-46-9(1)(d) -is flipped on its head and is being used as a sword." Id.

¶ 44. This is what we have in the case before us. Again, the Estate claims that the NFIP's federal regulations and the ordinances adopted by Yazoo City in furtherance of those federal regulations as part of the City's participation in the NFIP program, impose a "ministerial duty" upon the City to comply with those laws, the breach of which-in this instance-allows for a tortious cause of action arising from wrongful death. But we find that neither the NFIP's regulations nor Yazoo City's related ordinances create any such cause of action.

¶ 45. First, as the Fifth Circuit Court of Appeals has explained, the NFIP is a voluntary insurance program, and its rules do not provide a private right of action. United States v. St. Bernard Parish , 756 F.2d 1116 (5th Cir. 1985). "[T]he principal purpose in enacting the NFIP was to reduce through the implementation of adequate land use controls and the availability of subsidized flood insurance, the massive and ever increasing burden of federal flood disaster assistance." Id. But nowhere in the NFIP's language and its legislative history "can we find evidence that Congress had any intent to allow a private cause of action, either expressly or by implication." Id. As the Supreme Court commented in Touche Ross & Co. v. Redington , 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed. 2d 82 (1979), "when Congress wished to provide a private damages remedy, it knew how to do so and did so expressly."

¶ 46. The same goes for the ordinances adopted by Yazoo City in furtherance of its participation in the NFIP. While Yazoo City is required to comply with these ordinances as part of its participation in the NFIP, none of these ordinances establishes a private right of action against Yazoo City either in personal-injury tort or wrongful death.

¶ 47. Nor does Section 21-19-13. This section merely authorizes municipalities to construct and maintain drainage ditches; it does not create a right of action or establish a duty of care owed by a municipality to its inhabitants. Miss. Code Ann. § 21-19-13 (Rev. 2015).

¶ 48. For these reasons, the Estate's claim that Yazoo City is liable for the wrongful death of Patrauna, resulting from Yazoo City's failure to comply with its ordinances and federal regulations under the NFIP, fails as a matter of law for failure to state a cause of action.

¶ 49. That said, the Estate also alleged in its complaint that the Seventh Street drainage ditch constituted a dangerous condition because Yazoo City had failed to properly maintain the ditch by keeping it free of vegetation, trash and debris. This claim is predicated on ordinary negligence, and is entirely different from the Estate's theory of liability with regard to Yazoo City's failure to comply with ordinances and federal regulations associated with the NFIP. The Estate, however, appeared to disregard this claim along the way.

¶ 50. Based upon our de novo review of the record, we cannot tell whether the Estate did so based upon its investigation into the facts of the case, or based upon its reliance on Brantley .

¶ 51. Given that the Estate's case was still pending when Wilcher handed down, overruling the Brantley test and reinstituting the public-policy function test for purposes of Section 11-46-9(1)(d), the applicability of subsection (d) must be decided under the reinstituted public-policy function test. And out of fairness to the Estate, we find the Estate should be allowed the opportunity to fully present its negligence claim, beyond its reliance on the overruled Brantley test.

¶ 52. Furthermore, following careful de novo review of this record, we continue to have questions with regard to the applicability of both subsections (d) and (v) to the current facts in this case. And in fairness to both parties, we decline to enter into a discussion with regard to either exemption under the record in this case.

¶ 53. For these reasons, we reverse the trial court's decision granting summary judgment in favor of Yazoo City, and we remand the case for further proceedings, allowing for additional discovery, as necessary, under the trial court's discretion.

CONCLUSION

¶ 54. The trial court's judgment is reversed, and this case is remanded for further proceedings consistent with this opinion.

¶ 55. REVERSED AND REMANDED .

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

KITCHENS, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶ 56. In Wilcher v. Lincoln County Board of Supervisors , I predicted that "upon this court's return to the public policy function test, litigants and courts will continue to be required to 'scour the state manual' and 'hunt for other regulations and ordinances' in order to make arguments about whether the activity in question involved any policy considerations." Wilcher v. Lincoln Cty. Bd. of Supervisors , 243 So.3d 177, 2018 WL 2371859 (Miss. May 24, 2018) (Kitchens, J., concurring in result only). While I abstain from reiterating my arguments in opposition to the overruling of Brantley v. City of Horn Lake , 152 So.3d 1106 (Miss. 2014), I write here to observe that my prediction regarding the public-policy function test has come to pass.

¶ 57. The majority is correct that Mississippi Code Section 21-19-13 authorizes, but does not require, the governing authority of a municipality to "establish, alter and change the channels of streams or other water courses, and to bridge the same, whenever so to do will promote the health, comfort and convenience of the inhabitants of such municipality" and to "pay necessary expenses in providing labor, materials and supplies to clean or clear drainage ditches, creeks or channels ... and to incur costs and pay necessary expenses in providing labor, materials and supplies in order to prevent erosion ...." Miss. Code Ann. § 21-19-13(1), (2) (Rev. 2015). But that discretionary function is rendered ministerial by narrower requirements that are mandated by city and county ordinances:

1. Yazoo City, Miss., Flood Damage Prevention Ordinance art. I, § 11.5-23-requiring a development permit "prior to the commencement of any development activities in the areas of special flood hazard."
2. Yazoo City, Miss., Flood Damage Prevention Ordinance art. III, § 11.5-32-establishing required procedures for applying for and obtaining a development permit.
3. Yazoo City, Miss., Flood Damage Prevention Ordinance art. III, § 11.5-43(2)-requiring, in special flood hazard areas, that "no encroachments, including fill material or structures, shall be permitted unless certification by a professional engineer is provided demonstrating that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community. The engineering certification must be supported by technical data that conforms to standard hydraulic engineering principles."
4. Yazoo City, Miss., Ordinance 18.7(a) and (b)-requiring a written permit prior to excavation or "any work on or under the surface of the right-of-way of any dedicated street ...."
5. Yazoo Cty, Miss., Flood Damage Prevention Ordinance art. 3, § C-requiring a development permit "in conformance with the provision of this ordinance prior to the commencement of any development activities in the areas of special flood hazard."
6. Yazoo Cty., Miss., Flood Damage Prevention Ordinance art. 3, § D-"[n]o structure or land shall hereafter be located, extended, converted or structurally altered without full compliance with the terms of this ordinance and other applicable regulation."
7. Yazoo Cty., Miss., Flood Prevention Ordinance art. 4, § B-detailing the requirements for obtaining a permit.
8. Yazoo City, Miss., Flood Damage Prevention Ordinance art. I, §§ 11.5-3, 11.5-4, and 11.5-5-setting forth general requirements "to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas ...."
9. Yazoo Cty., Miss., Flood Prevention Ordinance art. 1, §§ C and D-requiring the county "to promote the public health, safety and general welfare and to minimize public and private losses due to flood conditions in specific areas ...."

In addition, the National Flood Insurance Program (NFIP), in which Yazoo City and Yazoo County participate, provides that:

"These regulations must be legally-enforceable, applied uniformly throughout the community to all privately and publicly owned land within flood-prone ... areas, and the community must provide that the regulations take precedence over any less restrictive conflicting local laws, ordinances or codes." 44 C.F.R. § 60.1(b) (2009).

¶ 58. In response to the motion for summary judgment filed by Yazoo City and Yazoo County, Hudson presented uncontradicted expert testimony by Gillian Butler, a civil engineer in the field of hydrologic and hydraulic engineering, in the form of an affidavit. Butler stated that "[t]he standard of care requires that Yazoo County and the City of Yazoo City comply with the provisions of these ordinances" and that "Yazoo County and Yazoo City's failure to comply with the provisions of these ordinances constituted a breach of the standard of care." This breach of the standard of care, Butler opined, "led to the dangerous condition which resulted in the drowning of Patrauna Hudson."

¶ 59. The majority argues that Hudson has failed to state a cause of action because "neither the NFIP's's regulations nor Yazoo City's related ordinances create any such a cause of action." Maj. Op. ¶ 44. The majority continues: "[w]hile Yazoo City is required to comply with these ordinances as part of its participation in the NFIP, none of these ordinances establishes a private right of action against Yazoo City either in personal-injury tort or wrongful death." Maj. Op. ¶ 46. Both of those regulations, however, which create ministerial duties, establish a standard of care and, concomitantly, remove the cloak of immunity from the governmental entity.

¶ 60. In Mississippi Transportation Commission v. Adams , this Court held that, while Mississippi Code Section 63-3-303 is discretionary, the Mississippi Transportation Commission's adoption of the Mississippi Standard Specifications for Road and Bridge Construction (the "Red Book") imposed narrower ministerial duties on the Mississippi Transportation Commission entitling the plaintiff to proceed with her claims. Miss. Transp. Comm'n v. Adams , 197 So.3d 406, 413 (Miss. 2016). The Adams Court held that the plaintiff had "produced evidence that the defendants had breached certain specific ministerial duties imposed by their own duly adopted regulations." Id. Here, as in Adams , the plaintiff has presented uncontradicted expert testimony establishing that Yazoo City and Yazoo County "breached certain ministerial duties imposed by their own duly adopted regulations."

¶ 61. The majority reiterates Wilcher : " '[a]s a result of Brantley , what the Legislature intended as a shield-discretionary-function immunity under Section 11-46-9(1)(d) -is flipped on its head and is being used as a sword.' " Maj. Op. ¶ 43 (quoting Wilcher , 243 So.3d at 184, 2018 WL 2371859, at * 4 ). In his Mississippi Rule of Appellate Procedure 28(k) letter sent following this Court's decision in Wilcher on May 24, 2018, Hudson's counsel stated the following:

Under Wilcher , a municipality must still ensure that unsafe conditions or health hazards are not created through flooding. In this case, Ms. Hudson's suit does not second-guess Yazoo City's decision to spend municipal funds to regulate water runoff. Instead, Ms. Hudson filed suit under the theory that the City created a dangerous condition through its failure to follow a ministerial statute, and then failed to warn or correct this dangerous condition. Indeed the city's engineer admitted under oath that the City never did a site plan or an engineering drawing, as required by law. The lone expert testified that the City's failure to follow its own laws directly led to the dangerous condition which killed the little girl.

It is clear, even under the public-policy function test, that plaintiffs will continue to search out and rely upon the narrowest regulations, statutes, and ordinances in order to establish the existence of a standard of care and the breach thereof.

¶ 62. The quagmire of confusion which has resulted from Wilcher continues. Accordingly, I respectfully concur in result only.

KING, J., JOINS THIS OPINION.

      While this Court, in Wilcher , overruled Brantley , Adams remains untouched.


source: Caselaw Access Project

license: Public Domain

text:
    Sonja Renee BAGGETT v. James Darrell BAGGETT
    2016-CT-00537-COA
    Supreme Court of Mississippi.
    Filed: March 27, 2018 Closed: June 28, 2018
    Certiorari - Denied.


text:
    Artea CHILTON v. STATE of Mississippi
    2014-CT-00330-COA
    Supreme Court of Mississippi.
    Filed: March 27, 2018 Closed: June 21, 2018
    Certiorari - Denied.


text:
    Shannon WESTFALL v. Randy GOGGINS
    2016-CT-00727-COA
    Supreme Court of Mississippi.
    Filed: March 21, 2018 Closed: June 7, 2018
    Certiorari - Denied.


text:
    Edith Davis ELMORE v. DIXIE PIPELINE COMPANY
    2015-CT-01499-COA
    Supreme Court of Mississippi.
    Filed: March 20, 2018 Closed: June 21, 2018
    Certiorari - Denied.


text:
    Jake BIAS v. STATE of Mississippi
    2016-CT-00682-COA
    Supreme Court of Mississippi.
    Filed: April 3, 2018 Closed: June 14, 2018
    Certiorari - Denied.


text:
    Jason ALSTON v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY
    2016-CT-01347-COA
    Supreme Court of Mississippi.
    Filed: March 28, 2018 Closed: June 7, 2018
    Certiorari - Denied.


text:
    Sharon SALLIE v. STATE of Mississippi
    2016-CT-00801-COA
    Supreme Court of Mississippi.
    Filed: March 8, 2018 Closed: June 7, 2018
    Certiorari - Denied.


text:
    Jaime C. PARRISH v. Paul R. PARRISH
    2016-CT-00871-COA
    Supreme Court of Mississippi.
    Filed: March 20, 2018 Closed: June 14, 2018
    Certiorari - Denied.


text:
    Cornelius CANNADY, Sr. v. STATE of Mississippi
    2015-CT-01756-COA
    Supreme Court of Mississippi.
    Filed: April 9, 2018 Closed: June 14, 2018
    Certiorari - Denied.


text:
    Larry LEWIS v. STATE of Mississippi
    2016-CT-01484-COA
    Supreme Court of Mississippi.
    Filed: April 9, 2018 Closed: June 14, 2018
    Certiorari - Denied.


text:
    Grace Ann MCCARTY v. STATE of Mississippi
    2016-CT-00602-COA
    Supreme Court of Mississippi.
    Filed: March 20, 2018 Closed: June 7, 2018
    Certiorari - Denied.


text:
    Bryan MORTON v. STATE of Mississippi
    2016-CT-00804-COA
    Supreme Court of Mississippi.
    Filed: April 10, 2018 Closed: June 28, 2018
    Certiorari - Denied.


text:
    Vincent YOUNG v. STATE of Mississippi
    2016-CT-00542-COA
    Supreme Court of Mississippi.
    Filed: April 13, 2018 Closed: June 21, 2018
    Certiorari - Denied.


text:
    J.A.G. v. C.T.
    2016-CT-00969-COA
    Supreme Court of Mississippi.
    Filed: April 10, 2018 Closed: June 7, 2018
    Certiorari - Denied.


text:
    Edward JOHNSON v. STATE of Mississippi
    2016-CT-01802-COA
    Supreme Court of Mississippi.
    Filed: May 7, 2018 Closed: June 7, 2018
    Certiorari - Denied.


text:
    Dalton Ray STEWART v. DYNAMIC ENVIRONMENTAL SERVICES, LLC
    2017-CT-00467-COA
    Supreme Court of Mississippi.
    Filed: May 21, 2018 Closed: June 21, 2018
    Certiorari - Denied.


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

text:
    Sonja Renee BAGGETT, Appellant v. James Darrell BAGGETT, Appellee
    NO. 2016-CA-00537-COA
    Court of Appeals of Mississippi.
    November 7, 2017 Rehearing Denied March 13, 2018 Certiorari Denied June 28, 2018
    ATTORNEY FOR APPELLANT: CAROL ANN ESTES BUSTIN
    ATTORNEYS FOR APPELLEE: RISHER GRANTHAM CAVES, TERRY L. CAVES
    EN BANC.
   IRVING, P.J., FOR THE COURT:

¶ 1. Renee Baggett filed a complaint for divorce from her husband James Baggett on the bases of habitual cruel and inhuman treatment and habitual drunkenness, or, alternatively, irreconcilable differences. The Chancery Court of Wayne County dismissed her complaint after a short trial. Renee appeals, asserting that the chancery court erred in (1) dismissing her complaint in light of the overwhelming weight of the evidence proving her alleged grounds for divorce, (2) failing to make findings of fact and conclusions of law, and (3) excluding the proffered testimony of Dr. Bharat Patel. We affirm.

FACTS

¶ 2. James and Renee married on August 27, 1998. The couple raised Renee's two children. At the time that Renee filed her complaint, the couple had recently adopted Renee's grandchild and were raising him.

¶ 3. For fourteen years prior to trial, James worked as an oil-rig manager, which required him to work away from home for two weeks, then stay home for two weeks. Both Renee and James testified that he drank alcohol when he was home. When asked at trial if James "got drunk every[ ]day," Renee replied, "I guess with him there's stages of drunkenness .... He can drink a lot of alcohol[,] and some people wouldn't even think he's drunk." Renee also testified that James's behavior would change depending on how much he had had to drink. Renee stated that she "begged [James] to quit drinking over twenty years," and that while he might sometimes quit for months, he would always begin drinking again. James testified that Renee knew before they married that he drank alcohol-as the couple had dated for several years and lived together prior to marrying-and she married him anyway. Renee responded that she and James had discussed his drinking prior to their marriage, and that she had relied on James's assertions that he hoped to stop drinking once he settled down and had a family.

¶ 4. Both Renee and James testified that they had separated on multiple occasions throughout the marriage. However, until their most recent separation, they had always reconciled, even after James was arrested and pleaded guilty to domestic violence in August 2006. At trial, Renee and James presented differing versions of the events leading to James's arrest: Renee asserted that James punched her in the face and beat her until the police came, while James testified that he merely grabbed Renee. Renee stated that, in addition to this particular incident, James would often push or grab her by her arms or clothes. Renee also testified that James was emotionally abusive, in that he would scream at her, call her names, and make derogatory comments.

¶ 5. Renee filed her complaint for divorce on June 25, 2015, on the grounds previously stated. James initially filed a counterclaim, in which he asserted his own grounds for divorce; however, he later withdrew his counterclaim. Trial was conducted before the chancery court, during which James, Renee, and six other witnesses-Patsy Harper (Renee's mother), Benton Harper (Renee's stepfather), Brittany Welborn (Renee's daughter), and three of Renee's friends: Michelle Collins, Felicia Sellers, and Sandy Toombs-testified.

¶ 6. Patsy and Benton both testified that they had lived with James and Renee for about a year in 2014; however, they presented differing accounts of James and Renee's marriage: Patsy testified that, while she lived at the home, she observed that James was easily angered and that he was drunk once or twice in the two-week spans that he lived at home; however, Benton testified that he did not see anything unusual with James and Renee's marriage. Brittany, who lived in a mobile home on James and Renee's property, corroborated Patsy's statement that James was easily angered, testifying that he "would be normal for a minute and then you never knew when ... he was gonna wig out on you.... [Y]ou may be having a normal conversation and the next thing you know, he-one of us has said something wrong or it was taken the wrong way." Brittany further testified that she had observed James drink and get drunk a "[c]ouple nights a week." Brittany also testified that while she had never personally observed physical violence between James and Renee, on the date of the August 2006 domestic-violence incident, she had personally observed that "the whole left side of [Renee's] face was bruised."

¶ 7. Michelle lived with Renee and James from about 2003 to 2005; she testified that, at the time of trial, she lived next door to Renee and saw her nearly every day. However, she had not been inside Renee and James's home on a regular basis "in the last few years." While she had never seen James hit Renee, she had "seen him push her and be in her face, [and] cuss her in front of several people." Michelle also testified that she had seen Renee with a "horrific black eye." Michelle maintained that James drank "[a]s much as he could hold" every day, and that he would begin drinking at least by lunch.

Michelle testified that she had seen him leave the house and come home drunk "[m]any times." Felicia and Sandy testified that Renee and James argued, and that Renee had expressed concern about James's drinking. Felicia further testified that Renee had told her about James inflicting physical violence on her, but that she had never witnessed Renee with any injuries. Several witnesses-including Patsy, Michelle, and Renee-testified that James's conduct had negatively impacted Renee's mental health.

¶ 8. At the end of the trial, Renee's counsel sought to introduce the deposition of Dr. Patel. James objected on the basis that Renee had only given notice of the deposition to opposing counsel on January 25, 2016, when the deposition itself was to take place on January 26, 2016. Due to such short notice, James's counsel had been unable to attend the deposition. The chancellor denied Renee's request on the bases that notice was untimely and that opposing counsel had not been present for the deposition.

¶ 9. After the chancellor denied Renee's attempt to introduce Dr. Patel's deposition, James's counsel moved to dismiss Renee's complaint under Rule 41(b) of the Mississippi Rules of Civil Procedure. The chancellor granted the dismissal on the basis that Renee only presented one incident of domestic violence occurring over ten years prior to the filing of her complaint, which was insufficient to constitute habitual cruel and inhuman treatment. Further, the chancellor ruled that Renee had only presented evidence that James habitually drank, not that he was habitually drunk, which was insufficient to constitute habitual drunkenness. Renee filed this timely appeal.

DISCUSSION

¶ 10. "In domestic-relation cases, our review is limited to whether the chancery court's findings were manifestly wrong or clearly erroneous, or [whether] the court applied the wrong legal standard." Lomax v. Lomax , 172 So.3d 1258, 1260 (¶ 5) (Miss. Ct. App. 2015) (citation and internal quotation marks omitted). "If there is substantial evidence in the record to support the chancery court's findings of fact, we will not reverse its decision on appeal." Id. (citation omitted). However, "[w]hen reviewing a chancellor's interpretation and application of the law, our standard of review is de novo." Smith v. Smith , 90 So.3d 1259, 1262 (¶ 8) (Miss. Ct. App. 2011) (citation omitted).

I. Whether the chancellor erred in dismissing Renee's complaint

¶ 11. Rule 41(b) states in pertinent part:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court may then render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.

The Mississippi Supreme Court has expounded upon this rule, providing the following:

The standard of review applicable on [a] motion to dismiss under Rule 41(b) is different [than] that applicable to a motion for a directed verdict. In considering a motion to dismiss, the judge should consider the evidence fairly, as distinguished from in the light most favorable to the plaintiff, and the judge should dismiss the case if it would find for the defendant. The court must deny a motion to dismiss only if the judge would be obliged to find for the plaintiff if the plaintiff's evidence were all the evidence offered in the case. [An appellate court] applies the substantial evidence/manifest error standards to an appeal of a grant or denial of a motion to dismiss pursuant to [ Rule] 41(b).

Stewart v. Merchs. Nat'l Bank , 700 So.2d 255, 258-59 (Miss. 1997) (internal citations and quotations omitted and emphasis removed from original).

¶ 12. Here, Renee asserts that the chancellor erred in dismissing her complaint because she presented overwhelming evidence in favor of both habitual cruel and inhuman treatment and habitual drunkenness.

A. Habitual Cruel and Inhuman Treatment

¶ 13. "A chancellor's determination that a spouse's conduct rose to the level of habitual cruel and inhuman treatment is a determination of law, which we review de novo." Smith , 90 So.3d at 1262 (¶ 8) (citation omitted). To obtain a divorce on the grounds of habitual cruel and inhuman treatment, the offended spouse must show by a preponderance of the evidence that the offending spouse's behavior either:

(1) endanger[s] life, limb, or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or
(2) [is] so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Horn v. Horn , 909 So.2d 1151, 1155 (¶ 7) (Miss. Ct. App. 2005) (citations omitted). The offending spouse's conduct must exceed "unkindness or rudeness or mere incompatibility or want of affection" and "must be shown to have been systematic and continuous." Id. (citations omitted). Further, the offended spouse must show a causal connection between the offending spouse's conduct and the impact on the offended spouse. Smith , 90 So.3d at 1263 (¶ 11). Such an inquiry is subjective, and "[t]he focus is on the effect the conduct has on the particular spouse, not its effect on an ordinary, reasonable person." Id. (citation omitted).

¶ 14. "Although in cases of violence a single incident may be sufficient for a divorce, generally the plaintiff must show a pattern of conduct." Id. at (¶ 13) (citation omitted). As the chancellor noted, Renee only presented one instance of domestic violence at trial. While egregious, this incident occurred over ten years prior to the filing of Renee's complaint and was not the cause of the separation of the parties. The record reflects that Renee allowed James back into the home after he was released from jail. Further, the witnesses that Renee offered gave no testimony to suggest that this singular incident of domestic violence was the ultimate cause of the parties' separation. No witness testified as to any other incident where he or she had actually witnessed James inflict physical violence upon Renee, beyond Michelle's testimony that she had seen James "push" Renee before. However, Michelle did not specify whether she witnessed this when she lived with James and Renee in the early 2000s, or more recently. Without more evidence to suggest that the August 2006 incident was the direct cause of Renee and James's separation, or that James exhibited a pattern of violent conduct, the evidence provided by Renee was insufficient to meet the standard required by our caselaw for a divorce on the basis of habitual cruel and inhuman treatment. Accordingly, we find that the chancellor did not err in dismissing Renee's complaint on this ground.

B. Habitual Drunkenness

¶ 15. "A court may grant a divorce on the ground of habitual drunkenness if the plaintiff proves that: (1) the defendant frequently abused alcohol; (2) the alcohol abuse negatively affected the marriage; and (3) the alcohol abuse continued at the time of the trial." Lee v. Lee , 154 So.3d 904, 906 (¶ 7) (Miss. Ct. App. 2014) (citation omitted).

¶ 16. Renee cites two cases in her brief in support of her assertion that James's conduct rose to the level of habitual drunkenness. In Sproles v. Sproles , 782 So.2d 742, 744-45 (¶¶ 4, 7) (Miss. 2001), the Mississippi Supreme Court affirmed a chancellor's finding that the wife was entitled to a divorce on the grounds of habitual cruel and inhuman treatment and habitual drunkenness where the husband "regularly drank a case of beer at night," which resulted in him becoming abusive toward his wife, to the extent that "he pointed a firearm at her and threatened to kill her if she tried to leave." He also, "when intoxicated, was critical of [the wife's] housecleaning, eating habits, and would make accusations of her infidelity, even to the extent of pulling her pants down." Id. at 745 (¶ 7). Ultimately, the intoxicated husband's actions made the wife feel "less than human, degraded, and depressed." Id.

¶ 17. Renee also cites Lee , 154 So.3d at 907 (¶ 13), in which this Court affirmed the chancellor's grant of a divorce on the basis of habitual drunkenness due to "[the husband's] alcohol consumption, combined with the negative impact it had on the family, and his continued drinking at the time of trial." The wife testified that her husband "drank five to six beers per day," and that his drinking led to cruel behavior, such as urinating on her leg while she was asleep, locking her outside the house, and forcing her to crawl through a back door. Id. at 906 (¶ 9).

¶ 18. While Renee presented multiple witnesses at trial who testified that James drank regularly-with James even conceding his regular alcohol use at trial-we decline to hold that the chancellor abused his discretion in dismissing Renee's complaint for a divorce based upon these grounds. The two cases that Renee presented to this Court are distinguishable from the matter at hand. In both of those cases, each wife testified that her husband committed deplorable acts, from pointing a gun at her to urinating on her leg. While we in no way condone the treatment of Renee that led to James's arrest for domestic violence, or his drinking, it was within the chancellor's discretion to find that his actions do not rise to the level of conduct that this Court and the Mississippi Supreme Court have required for a divorce to be granted on the basis of habitual drunkenness. As such, the chancellor did not err in finding that Renee failed to meet her burden of proof on this ground, and we cannot say that the chancellor manifestly erred in dismissing Renee's complaint.

II. Whether the chancellor erred in failing to make findings of fact and conclusions of law

¶ 19. Rule 52(a) of the Mississippi Rules of Civil Procedure provides:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

Renee cites our supreme court's decision in Tricon Metals & Services, Inc. v. Topp , 516 So.2d 236, 239 (Miss. 1987), in which the court held that "in cases of any complexity, tried upon the facts without a jury, the [c]ourt generally should find the facts specially and state its conclusions of law thereon." In other words, where "a case is hotly contested and the facts greatly in dispute and where there is any complexity involved therein, failure to make findings of ultimate fact and conclusions of law will generally be regarded as an abuse of discretion." Id.

¶ 20. Renee did not request the chancellor to make findings of fact and conclusions of law. However, she argues on appeal that the chancellor abused his discretion in failing to do so because the case "was hotly contested and the facts were greatly in dispute." James maintains that Renee waived her right to request that the chancery court enter findings of fact and conclusions of law, and that the chancery court properly exercised its discretion in rendering a bench opinion only.

¶ 21. We find that the chancellor did not err in failing to make findings of fact or conclusions of law. First, Renee did not request the chancellor to do so. Second, the facts were neither hotly contested, greatly in dispute, nor complex so as to require the chancellor to have done so without a request. As such, we find this claim without merit.

III. Whether the chancellor erred in excluding Dr. Patel's deposition

¶ 22. Rule 32(a) of the Mississippi Rules of Civil Procedure provides that deposition testimony may be used when a witness is not available to testify. "The admission of deposition testimony is within the sound discretion of the trial court." Robinson v. Lee , 821 So.2d 129, 133 (¶ 16) (Miss. Ct. App. 2000) (citation omitted). "Where the exercise of the court's discretion is not supported by the evidence, this Court is obligated to find an abuse of discretion." Id. at 134 (¶ 19) (citation omitted).

¶ 23. Here, Renee argues that the chancery court erred in excluding the proffered deposition testimony of Dr. Patel. In contrast, James argues that the chancery court was justified in doing so due to the late notice he was given that Dr. Patel would be deposed. The document sought to be offered into evidence was hardly a deposition, as Renee claims. James's counsel was unable to attend the deposition due to such short notice-just one day's notice-and, therefore, did not participate in the questioning of Dr. Patel. As such, we find that Dr. Patel's testimony was more of a statement than a deposition, and the chancellor did not abuse his discretion in excluding it. For the reasons discussed, we affirm the judgment of the court, dismissing Renee's complaint for divorce.

¶ 24. AFFIRMED.

LEE, C.J., FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., BARNES AND CARLTON, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.

      Renee presumably obtained this injury on the date of the domestic violence incident when James was arrested, as Michelle testified that she witnessed Renee's black eye "in '06," and she subsequently testified as to her son's description of the incident wherein James was arrested, which her son had witnessed.

      In her brief, Renee asserts that she has received treatment from Dr. Patel since 2004, although she does not explain what type of medicine he practices. Renee maintains only that Dr. Patel's proffer reveals that she was suffering from "debilitating migraines ..., fibromyalgia, chronic sinusitis, lumbar spondylosis, ... spondylolisthesis," and depression.

      The chancellor additionally awarded James and Renee joint legal and physical custody of their minor child, and ordered James to pay Renee $1,063.60 per month as child support.


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

text:
    Bryan MORTON, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00804-COA
    Court of Appeals of Mississippi.
    November 21, 2017 Rehearing Denied March 27, 2018 Certiorari Denied June 28, 2018
    OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON, ATTORNEY FOR APPELLEE
    EN BANC.
   LEE, C.J., FOR THE COURT:

¶ 1. Following a jury trial in the Warren County Circuit Court, Bryan Morton was found guilty of attempted murder, armed robbery, and burglary of a dwelling. Morton was sentenced to thirty years for the attempted-murder conviction and thirty years for the armed-robbery conviction, with the sentences ordered to run consecutively. He was sentenced to twenty years for the burglary conviction, which was ordered to run concurrently with the attempted-murder and armed-robbery convictions, with all sentences to be served in the custody of the Mississippi Department of Corrections. Morton now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 4, 2014, Charlie Arnold's house in Warren County, Mississippi, was broken into while she was asleep in her bed. Arnold testified that she awoke to Kimberly Chapman hitting her over the head with a walking stick. Arnold recognized Chapman because Chapman had dated Arnold's son while he was in high school. Arnold testified that she heard a baby crying and that Chapman continued to hit her. She also testified that she noticed a man in her house during the attack, and that he hit her on top of the head with a shotgun. She could not recall all of the attack because she kept passing out.

¶ 3. Around 11:30 a.m., Investigator Jason Bailess with the Warren County Sheriff's Department responded to a dispatch call where someone had reported seeing a woman stranded on Highway 80 in Vicksburg, holding an infant and covered in blood. Investigator Bailess arrived on the scene and noticed a woman-later identified as Chapman-covered in what appeared to be wet blood and holding a baby while standing next to a maroon Cadillac sedan. Investigator Bailess questioned Chapman about the blood on her clothes and body, and Chapman stated she had been in a fight the night before. Investigator Bailess, however, noticed that Chapman did not have any injuries and also had dried blood on her hands around her fingernails. He called for another officer to come to the scene and had Chapman and her baby sit in the officer's car while he looked in the window of Chapman's Cadillac. Investigator Bailess noticed from outside the car that a sportsman's license was on the front seat of the car and had the last name "Arnold" on it with an address. Once the other officer arrived, Investigator Bailess went to the address, which he stated he was familiar with from previous calls, to check on the woman who lived there. He called for assistance to meet him at the house.

¶ 4. Investigator Bailess testified that when he knocked on the door of the house, it opened because it was not properly shut. He called out for Arnold, and noticed blood spots on the living-room floor. When the officers got to Arnold's bedroom, Investigator Bailess noticed that the mattresses were flipped over off the bed, and that there was blood all over the bedroom. They found a broken shotgun with blood on the butt of the gun. Arnold was on the side of the bed opposite the bedroom entrance. She was covered in blood and had severe head wounds. At the scene, she told officers that a woman named Kim Chapman had broken into her house and started beating her and that there was a man with Chapman, but she did not see him. She stated that she heard a man's voice behind her and then was hit from behind. And that Chapman stabbed her. Arnold was taken to the University of Mississippi Medical Center in Jackson, Mississippi. Upon her release, she spent 120 days in the Vicksburg Convalescent Home for further recovery.

¶ 5. At the police station, Chapman gave a statement, telling police that she and Morton had gone to Arnold's house to borrow money from her. She stated that Morton went through the window and assaulted Arnold. In her statement, Chapman admitted to hitting Arnold only once, although months later at a bond hearing she admitted to hitting Arnold multiple times. She denied having a gun or knife, and stated she never saw Morton with the shotgun.

¶ 6. In Chapman's Cadillac, investigators found Arnold's driver's license, Visa card, Social Security card, prescription medications, and a check from Arnold's account. They also recovered a jacket from the front-passenger floorboard, which was sent to the crime lab for testing. A data extraction performed on Chapman's phone showed contacts, including one titled "Brian," with a text sent from Chapman to Morton on the day of the burglary and attack, asking "wanna come[ ] help[?]" From the night of May 3 to morning of May 4, Morton and Chapman exchanged twenty-nine calls altogether, including missed and answered calls. An arrest warrant was issued for Morton. Sheriff's deputies collected a knife and shotgun barrel from a Jeep that Morton had been known to drive, which was parked at Colby Ashley's house on Massey Road. Ashley is Chapman's cousin.

¶ 7. DNA testing on the jacket recovered in Chapman's car yielded results consistent with the sample taken from Arnold. Male DNA was also found on the jacket, and the forensic examiner could not exclude Morton or any of his patrilineal male relatives. A sample from the broken gun stock was consistent with Arnold's DNA. The sample from the walking cane yielded a partial profile that could have come from Arnold.

¶ 8. At trial, Arnold testified that Chapman or the man entered the home through a side window of the house and that she suspected that the one who entered through the window let the other through the front door. She testified that Chapman and the man took cash from her purse, the purse itself, her prescription pills, and her wedding ring.

¶ 9. Chapman testified against Morton at trial and stated that she had only met Morton a couple of times before the night of May 3-once at Ashley's house, and another time when she bought crystal meth from Morton. She testified that she initiated contact with Morton on the night of May 3 because she needed money and thought Morton could help her get it. She mentioned Arnold's house to Morton, and Morton agreed to help Chapman steal from Arnold. Chapman stated that when she and Morton got to Arnold's house, the window she had planned to enter through was blocked, and Morton entered through another window. When Chapman went inside, she saw Morton tying up Arnold with a rope, and that Arnold was already covered in blood at this point and had a gash in her forehead. While they were looking for valuables to take, Arnold got loose, so Morton handed her a weapon, and Chapman hit Arnold with it. She stated that while she was trying to put Arnold back on the bed, Morton left in Chapman's car. Chapman called Morton, but he did not answer. Morton eventually returned to Arnold's house to pick Chapman up, and they went back to Ashley's house on Massey Road.

¶ 10. Morton testified in his own defense that he never left Ashley's house on Massey Road that night. Waylon Jones, who was also living at Ashley's house at the time, testified as an alibi witness for Morton. Jones told investigators that Morton never left Ashley's house that night. Ashley's girlfriend, Lee Ann Elliot, also lived at the house on Massey Road. Elliot told investigators that she had gone to sleep early that night, but the next day Morton told her that he and Chapman had gone to Arnold's home with the intention of stealing her prescription medicine and money.

She further testified that Morton told her that when Arnold recognized Chapman, Chapman told Morton that she would now have to kill Arnold. Morton said that he did not want to hit Arnold, but he had to because she saw Chapman's face.

¶ 11. Following a trial on the merits, a jury found Morton guilty of attempted murder, armed robbery, and burglary of a dwelling. Morton now appeals, and we address his issues in turn.

DISCUSSION

I. Sufficiency of the Indictment

¶ 12. In his first issue on appeal, Morton claims that the indictment was fatally defective for failure to charge an essential element of the crime. Specifically, Morton argues that the indictment failed to state whether he "failed" to complete or was "prevented" from completing the act of murder; thus, he argues that indictment was legally insufficient to charge him with attempted murder.

¶ 13. "[W]hether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review." Colburn v. State , 201 So.3d 462, 469 (¶ 20) (Miss. 2016) (quoting State v. Hawkins , 145 So.3d 636, 638 (¶ 3) (Miss. 2014) ). "[A]n indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Townsend v. State , 188 So.3d 616, 620 (¶ 13) (Miss. Ct. App. 2016) (quoting Gilmer v. State , 955 So.2d 829, 836-37 (¶ 24) (Miss. 2007) ). "The primary purpose of an indictment is to give a defendant fair notice of the crime charged." Williams v. State , 169 So.3d 932, 935 (¶ 9) (Miss. Ct. App. 2014). "The Mississippi Supreme Court has stated, 'so long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient.' " Martin v. State , 65 So.3d 882, 884 (¶ 7) (Miss. Ct. App. 2011) (quoting Sanderson v. State , 883 So.2d 558, 561 (¶ 9) (Miss. 2004) ).

¶ 14. Attempted murder is defined in Mississippi Code Annotated section 97-1-7(2) (Rev. 2014) as follows:

Every person who shall design and endeavor to commit an act which, if accomplished, would constitute an offense of murder under [ Mississippi Code Annotated section 97-3-19 (Supp. 2016) ], but shall fail therein, or shall be prevented from committing the same, shall be guilty of attempted murder ....

Morton's indictment charged that Morton:

[D]id willfuly, unlawfully, and feloniously, and with deliberate design to cause his/her death, ... attempt to kill Charlie Arnold[,] a human being, under such circumstances that, if accomplished, would constitute an offense of murder under [ section] 97-3-19 by repeatedly striking Charlie Arnold in the head with a metal walking stick, without authority of law, in violation of [section] 91-1-7 ....

¶ 15. "An attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime, (2) a direct ineffectual act done toward its commission, and (3) the failure to consummate its commission." Craig v. State , 201 So.3d 1108, 1111 (¶ 9) (Miss. Ct. App. 2016) (quoting Brooks v. State , 18 So.3d 833, 841 (¶ 33) (Miss. 2009) ). So, while failure to consummate the commission of a crime is an element of attempt, "[o]ur courts have long held that 'the failure to charge the third element of attempt does not make an indictment defective.' " Williams v. State , 216 So.3d 409, 413 n.4 (Miss. Ct. App. 2017) (quoting Spearman v. State , 58 So.3d 30, 36 (¶ 19) (Miss. Ct. App. 2011) ). "Using the word 'attempt' puts a defendant on notice that the State will prove that the crime was not completed." Id. (quoting Neal v. State , 936 So.2d 463, 467 (¶ 13) (Miss. Ct. App. 2006) ).

¶ 16. Here, Morton's indictment sufficiently notified him of the charge against him-namely, attempted murder. The indictment used the word "attempt," as well as contained the language that the crime, "if accomplished, would constitute an offense of murder," indicating the incompleteness of the attempted crime. Accordingly, we find no merit to Morton's argument that his indictment was fatally defective.

II. Jury Instructions

¶ 17. In his second issue, Morton contends that the jury instructions given for the attempted-murder charge omitted an essential element and varied materially from the indictment. Morton also claims that the instruction given for the armed-robbery charge materially varied from the indictment and thus constituted a constructive amendment.

¶ 18. "Jury instructions are generally within the discretion of the trial court[,] and the settled standard of review is abuse of discretion." Moody v. State , 202 So.3d 1235, 1236-37 (¶ 7) (Miss. 2016) (quoting Bailey v. State , 78 So.3d 308, 315 (¶ 20) (Miss. 2012) ). When read together as a whole, "if the jury instructions fairly state the law of the case and create no injustice, then no reversible error will be found." Bailey , 78 So.3d at 315 (¶ 20). However, "failure to instruct the jury on the essential elements of the crime is plain error." Bolton v. State , 113 So.3d 542, 544 (¶ 4) (Miss. 2013) (quoting Rogers v. State , 95 So.3d 623, 632 (¶ 30) (Miss. 2012) ).

A. Attempted-Murder Instruction

¶ 19. Morton argues that the jury instruction S-1B omits the words "under such circumstances that, if accomplished, would constitute an offense of murder," and thus, the instructions omitted an essential element of the crime. The S-1B instruction, in relevant part, provided that for the jury to find Morton guilty of attempted murder, it must find that Morton: "1. Did purposefully or knowingly and unlawfully and with deliberate design ... attempt to commit the murder of Charlie Arnold, a human being; and 2. [he] failed to actually kill Charlie Arnold, and therefore did not meet the elements of murder ...." While jury instructions should track the language in the indictment, their failure to do so is not fatally defective, so long as "they do accurately follow the requisite elements of the crime." Neal v. State , 15 So.3d 388, 398 (¶ 16) (Miss. 2009). Here, the jury instructions accurately followed the requisite elements of attempted murder by charging that Morton had to have (1) intended to murder Arnold, (2) attempted to murder Arnold, and (3) failed to actually kill Arnold.

¶ 20. In regard to Morton's claim that the jury instructions constructively amended the indictment, we note that "[n]ot all variances between the indictment and instructions constitute a constructive amendment." Graham v. State , 185 So.3d 992, 1001 (¶ 25) (Miss. 2016).

A constructive amendment of an indictment occurs when the jury is permitted to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged. A constructive amendment of an indictment is reversible per se. Reversal is automatic because the defendant may have been convicted on a ground not charged in the indictment.

Id. (quoting Bell v. State , 725 So.2d 836, 855-56 (¶ 61) (Miss. 1998) ). The central question is "whether the variance is such as to substantially alter the elements of proof necessary for a conviction." Id.

As long as the change does not "materially alter facts which are the essence of the offense on the fact of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood" in a way that would prejudice the defendant's case, then the amendment is permissible.

Id. (quoting Miller v. State , 740 So.2d 858, 862 (¶ 13) (Miss. 1999) ).

¶ 21. In the instant case, the variance between the indictment and the jury instructions did not substantially alter the elements of proof necessary for a conviction. The jury was charged that to convict Morton of attempted murder, it had to find beyond a reasonable doubt that Morton had intended to commit murder, attempted to do so, and failed to do so. Thus, the jury was instructed on all the elements of proof necessary for a conviction, and the variance in no way prejudiced Morton's defense. As such, this issue is without merit.

B. Armed-Robbery Instruction

¶ 22. Morton also claims that the instruction on armed robbery materially varied from the indictment and constituted a constructive amendment. In relevant part, the indictment stated that Morton "did willfully, unlawfully[,] and feloniously take" certain property from Arnold, while the jury instructions charged an "attempt to take." Morton argues that this variance amounted to a constructive amendment of the indictment because it did not require the jury to find that Morton actually took the items.

¶ 23. Mississippi Code Annotated section 97-3-79 (Rev. 2014) defines the crime of armed robbery:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery ....

¶ 24. "[I]n Mississippi both an attempt to take and an actual taking of another's personal property against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon constitutes robbery." Houston v. State , 811 So.2d 371, 372 (¶ 4) (Miss. Ct. App. 2001) (quoting Harris v. State , 445 So.2d 1369, 1370 (Miss. 1984) ). Thus, the variance is immaterial. If the jury found that Morton actually took the property, he was guilty of robbery. If the jury found that Morton only attempted to take the property, he was guilty of robbery. "According to [the armed-robbery] statute, a person can be convicted of armed robbery while attempting to complete the crime." Putnam v. State , 877 So.2d 468, 471 (¶ 10) (Miss. Ct. App. 2003). As such, the variance between the indictment and the jury instructions did not substantially alter the elements of proof necessary for a conviction of armed robbery. Morton was not prejudiced in his defense. The issue is without merit.

III. Ineffective-Assistance-of-Counsel Claim

¶ 25. Morton alleges he received ineffective assistance of counsel because his attorney did not request an alibi jury instruction. He argues that because of the lack of instruction, the jury did not know that Morton was not required to establish the truth of his alibi, and that the error prejudiced his defense.

¶ 26. On direct appeal, a claim for ineffective assistance of counsel "should only be addressed when '(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.' " Reed v. State , 204 So.3d 785, 789 (¶ 16) (Miss. Ct. App. 2016) (quoting Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015) ). Here, the parties do not stipulate that the record is adequate for the appellate court to make a finding on direct appeal. "Thus, the only proper inquiry is whether the record affirmatively shows that [the defendant] was denied effective assistance of counsel." Id. "Where the record cannot support an ineffective-assistance-of-counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for [postconviction relief]." Id. (quoting Johnson , 196 So.3d at 975 (¶ 8) ).

¶ 27. In an ineffective-assistance-of-counsel claim,

a defendant must show that: (1) his counsel's performance was deficient, and (2) this deficiency prejudiced his defense. The burden of proof rests with the defendant to prove both prongs. Under Strickland ,[ ] there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

Renfrow v. State , 202 So.3d 633, 636 (¶ 7) (Miss. Ct. App. 2016) (quoting Maggitt v. State , 26 So.3d 363, 365 (¶ 12) (Miss. Ct. App. 2009) ). There is also a presumption that decisions made by defense counsel are strategic, and this Court "will not second-guess counsel's decisions that fairly may be characterized as strategic." Shinn v. State , 174 So.3d 961, 966 (¶ 12) (Miss. Ct. App. 2015). Finally, we look "at the totality of circumstances to determine whether counsel's efforts were both deficient and prejudicial." Howell v. State , 163 So.3d 240, 259 (¶ 49) (Miss. 2014) (quoting Williams v. State , 73 So.3d 1125, 1129 (¶ 12) (Miss. 2011) ).

¶ 28. There is nothing in the record that indicates why Morton's counsel did not request an alibi instruction. Given the strong presumption that decisions made by defense counsel are strategic, Morton's trial counsel may have abandoned the alibi defense after hearing Chapman's and Jones's testimonies. "[E]ven without an alibi instruction, the jury was still able to consider their testimonies and to find that there was reasonable doubt as to whether" Morton was guilty of the crimes charged. Wilson v. State , 198 So.3d 408, 415 (¶ 23) (Miss. Ct. App. 2016). Furthermore, the trial court instructed the jury that Morton was presumed innocent and that the burden was on the State to prove his guilt beyond a reasonable doubt. The trial court also instructed the jury that Morton was not required to prove his innocence. There was nothing that prevented the jury from considering Morton's alibi defense. We cannot say that the trial record, standing alone, validates Morton's ineffective-assistance-of-counsel claim. Accordingly, we decline to address the claim, in order to preserve Morton's right to argue the issue in a PCR motion.

IV. Morton's Supplemental Brief

¶ 29. In addition to the arguments submitted by Morton's appellate counsel, Morton filed a supplemental brief raising additional issues, which we now address. We do not address his additional issues raised in his reply brief, as arguments raised for the first time in a reply brief are procedurally barred. Ogunbor v. May , 204 So.3d 840, 848 (¶ 33) (Miss. Ct. App. 2016).

A. Prior-Bad-Acts Testimony

¶ 30. Morton argues that the trial court erred by allowing inadmissible testimony solicited by the prosecution of Morton's prior criminal activity. He states that this inadmissible testimony prejudiced the minds of the jurors and constitutes plain error. "For this Court to apply the plain-error doctrine, 'a party must prove that an error occurred which resulted in a manifest miscarriage of justice. This doctrine is only available when a defendant's substantive or fundamental rights have been violated.' " Nunnery v. State , 126 So.3d 105, 110 (¶ 20) (Miss. Ct. App. 2013) (quoting Starr v. State , 997 So.2d 262, 266 (¶ 11) (Miss. Ct. App. 2008) ).

¶ 31. Morton's issue refers to Chapman's statement elicited in the following exchange:

[State]: At some time on May 3rd, 2014, did you initiate contact with Bryan Morton?
[Chapman]: Yes, sir.
[State]: And why did you do that?
[Chapman]: Because I was trying to find a way to make some money and I knew he had broke into a house before with my ex-boyfriend and my cousin[.]

¶ 32. Morton argues that Chapman's statement was evidence of prior criminal activity and thus the trial court erred in admitting the testimony. However, the record reflects that the trial court did not admit the testimony. Morton's counsel objected to the statement on the ground of hearsay, and the objection was sustained. Additionally, the trial court made an on-the-record finding that Chapman's statement be stricken. Thus, the statement was not admitted.

¶ 33. Notwithstanding that the statement at issue was not admitted, Morton's objection at trial was predicated on the ground of hearsay-not the inadmissibility of prior bad acts. "If the objection on appeal differs from the objection at trial, the issue is not properly preserved for appellate review." City of Natchez v. Jackson , 941 So.2d 865, 871 (¶ 14) (Miss. Ct. App. 2006) (citing Belmont Homes Inc. v. Stewart , 792 So.2d 229, 239 (¶ 45) (Miss. 2001) ). Additionally, while "[e]vidence of a prior criminal activity on the part of one criminally accused is inadmissible where the prior offense has not resulted in a conviction," it "is admissible when necessary to tell a complete story to the jury." Conerly v. State , 879 So.2d 1101, 1106-09 (¶¶ 14, 19) (Miss. Ct. App. 2004). Here, Chapman was telling the complete story of why she enlisted the help of Morton in committing the crimes against Arnold. The statement was objected to on the ground of hearsay, and the objection sustained. This issue is without merit.

B. Opinion Testimony

¶ 34. Morton argues that the trial court erred by allowing a State's witness to testify regarding the belief or credibility of an alibi witness's testimony. He argues that the statement at issue was improper opinion testimony by a layperson. Morton specifically refers to the following testimony of Investigator Randy Lewis, regarding an alibi statement he took from Jones:

[State]: Did you find the statement of Waylon Jones to be credible?
[Investigator Lewis]: I'm not going to say, hard to believe, but I didn't think that it was entirely true, no, sir.

¶ 35. At trial, Morton did not object to this line of questioning. "[I]t is well-settled law that the failure to make a contemporaneous objection waives the right of raising the issue on appeal." Washington v. Kelsey , 990 So.2d 242, 247 (¶ 18) (Miss. Ct. App. 2008) (quoting Lang v. State , 931 So.2d 689, 691 (¶ 11) (Miss. Ct. App. 2006) ); see M.R.E. 103(a)(1). Thus, this issue is procedurally barred.

C. Improper-Bolstering Claim

¶ 36. Morton argues that the trial court erred by allowing the State to improperly bolster the credibility of its witness, Chapman, in the following testimony at trial:

[State]: What, if anything, have I told you about testifying?
[Chapman]: Nothing.

¶ 37. Morton argues that this improperly bolstered the State's case by asking Chapman, the codefendant, about any deals or hopes of a deal in exchange for testifying. Again, Morton failed to object to this question. Thus, the issue is procedurally barred. Id. Moreover, our supreme court has held that a leniency agreement with a State witness must be disclosed to the defense, and the defense must be allowed to present evidence of such an agreement to show bias or for impeachment purposes. McCoy v. State , 147 So.3d 333, 349 (¶ 41) (Miss. 2014). Both the State and Morton's defense counsel questioned Chapman about any leniency deal she had made, to which she testified that there was none. This issue is without merit.

D. Ineffective-Assistance-of-Counsel Claim

¶ 38. Morton asserts that he received constitutionally ineffective assistance of counsel, because his counsel failed to request a Franks hearing on the validity of the search warrant. He argues that there was not sufficient probable cause to issue the search warrant, and the evidence found and recovered during the resulting search should have been excluded. Thus, he argues his counsel's representation was deficient.

¶ 39. Again, an ineffective-assistance-of-counsel claim should only be addressed on direct appeal where "the record affirmatively shows ineffectiveness of constitutional dimensions." Reed , 204 So.3d at 789 (¶ 16) (quoting Johnson , 196 So.3d at 975 (¶ 7) ). "Where the record cannot support an ineffective-assistance-of-counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for [postconviction relief]." Id. (quoting Johnson , 196 So.3d at 975 (¶ 8).

¶ 40. "The legal standard for challenging a search[-]warrant affidavit is found in Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)." Russell v. State , 73 So.3d 542, 545 (¶ 10) (Miss. Ct. App. 2011) (citations omitted). "Under Franks , a search warrant may be challenged if (a) the defendant makes a substantial preliminary showing that the affiant made a false statement knowingly and intentionally or with reckless disregard for the truth, and (b) the allegedly false statement was necessary to the finding of probable cause." Id. (citing Franks , 438 U.S. at 155-56, 98 S.Ct. 2674 ). "The defendant's claims must be more than conclusory." Id.

(citing Franks, 438 U.S. at 171, 98 S.Ct. 2674 ).

¶ 41. Morton alleges that the search warrant was granted as the result of multiple untrustworthy statements given during the course of the investigation. He fails to further specify what statements were false or untrustworthy or identify the sources. Thus, his claims are merely conclusory. Because the trial record does not validate Morton's ineffective-assistance-of-counsel claim, we decline to address the claim, in order to preserve Morton's right to argue the issue in a PCR motion.

CONCLUSION

¶ 42. For the foregoing reasons, we find that Morton's arguments lack merit, and we therefore affirm the circuit court's judgment on all of Morton's convictions and sentences.

¶ 43. AFFIRMED.

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

      Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).