                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2017-CT-00607-SCT

CHASITY ANDERSON

v.

DARNICE WIGGINS

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:           11/29/2016
TRIAL JUDGE:                HON. JOHN S. GRANT, III
TRIAL COURT ATTORNEYS:      JAMES B. GRENFELL
                            JAMES N. SCARFF, II
                            DREW MARTIN
                            GRETA KEMP
COURT FROM WHICH APPEALED: RANKIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:     JAMES N. SCARFF, II
ATTORNEYS FOR APPELLEE:     THOMAS J. LOWE, JR.
                            JAMES B. GRENFELL
NATURE OF THE CASE:         CIVIL - TORTS-OTHER THAN PERSONAL
                            INJURY & PROPERTY DAMAGE
DISPOSITION:                REVERSED AND REMANDED - 02/20/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    The Rankin County Chancery Court granted summary judgment in favor of Darnice

Wiggins in a conversion case she brought against Chasity Anderson, the fiancée of Wiggins’s

deceased son Jhonte Sanders. As the basis for granting summary judgment, the chancellor

determined that Anderson failed to establish a genuine issue of material fact. Anderson

appealed, and the Court of Appeals deadlocked in a 5-5 decision. Once the Court of Appeals
denied her motion for rehearing, Anderson filed a petition for writ of certiorari, and we

granted it. Accordingly, we reverse the Court of Appeals’ judgment, and we remand the case

for further proceedings.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Sanders and Anderson met each other while serving in the military in 2009. The two

lost touch with one another. In 2011, Sanders was diagnosed with leukemia while living in

Chicago, Illinois. In May 2013, Sanders reconnected with Anderson online. Sanders then

moved to Rankin County and continued his chemotherapy treatment at University of

Mississippi Medical Center (UMMC). After suffering multiple seizures in 2014, Sanders

required hospitalization. Following his hospitalization, Wiggins, Sanders’s mother, moved

to Jackson, Mississippi, and became his primary caregiver. On November 14, 2014, UMMC

transferred Sanders to Methodist Rehabilitation Center (Methodist) in Jackson, Mississippi,

for two weeks of rehabilitative treatment. Dr. Clea Evans is a neuropsychologist at

Methodist in Jackson, Mississippi, and was a part of a team that treated Sanders the fourteen

days he was there. Methodist released Sanders on November 28, 2014. However, Sanders

continued outpatient rehabilitative-speech-therapy treatments from December 1, 2014,

through January 2015. On December 19, 2014, Sanders settled a personal-injury claim and

received a monetary settlement in excess of $350,000. Sanders made multiple transfers of

those settlement funds to Anderson.

¶3.    Sanders died soon after the transfer of his funds. Following Sanders’s death, the

Rankin County Chancery Court appointed Wiggins, Sanders’s mother, administratrix of his



                                             2
estate. Wiggins filed a “Complaint for Conversion” against Anderson. Though other

transactions occurred, the crux of Wiggins’s conversion complaint revolved around transfers

Sanders made after his personal-injury settlement. In support of her conversion claim,

Wiggins alleged that Anderson was aware of Sanders’s pending settlement, that Sanders

qualified as a vulnerable adult, and that Anderson either unduly influenced him to transfer

the funds or utilized her position of trust to take advantage of him while he was a vulnerable

adult. Wiggins also alleged that “at all times complained of herein, . . . Sanders was in a

constant state of confusion . . . and did not have the mental capacity to manage his money nor

make cognizant decisions which were in his best interest.” After filing the complaint,

Wiggins sent Anderson requests for admissions. Anderson failed to respond to the requests,

and the chancery court deemed them admitted. Wiggins then filed a motion for summary

judgment.

¶4.    During the summary judgment hearing, Wiggins offered multiple exhibits into

evidence, including an affidavit from neuropsychologist, Dr. Evans. Wiggins argued that the

court should grant her motion because Anderson’s admissions, the established facts, and Dr.

Evans’s affidavit proved that no genuine issue of material fact existed. The chancellor

agreed and granted summary judgment, reasoning that the pleadings, answers to discovery

and requests for admission, together with the affidavit of Dr. Evans showed no genuine issue

of material fact.

¶5.    Anderson appealed, and we assigned the case to the Court of Appeals. Looking to the

admissions, the established facts, and Dr. Evans’s affidavit, the prevailing opinion of the



                                              3
court reasoned that Wiggins had supported her conversion claim by arguing that Sanders was

a vulnerable adult. Anderson v. Wiggins, No. 2017-CA-00607-COA, 2019 WL 2098392,

at *5 (¶ 21) (Miss. Ct. App. May 14, 2019). De facto affirming the chancery court’s decision

by a 5-5 vote, the prevailing opinion wrote that Anderson’s failure to respond to the motion

for summary judgment meant she rested upon her allegations, and those were insufficient to

show there was a genuine dispute of material fact. Id. at *6 (¶ 24).

¶6.    Following the denial of Anderson’s motion for rehearing, she filed a petition for

certiorari review, and we granted it.

                                STANDARD OF REVIEW

¶7.    “We employ a de novo standard of review of a trial court’s grant or denial of a

summary judgment and examine all the evidentiary matters before it—admissions in

pleadings, answers to interrogatories, depositions, affidavits, etc.” Foster v. Williams (In

re Estate of Laughter), 23 So. 3d 1055, 1060 (¶ 17) (Miss. 2009) (quoting Bullock v. Life

Ins. Co., 872 So. 2d 658, 660 (¶ 6) (Miss. 2004)). “The evidence must be viewed in the light

most favorable to the party against whom the motion has been made, and the moving party

bears the burden of demonstrating that no genuine issue of material fact exists.” Moore v.

Delta Reg’l Med. Ctr., 23 So. 3d 541, 544 (¶ 7) (Miss. Ct. App. 2009) (citing Heigle v.

Heigle, 771 So. 2d 341, 345 (¶ 8) (Miss. 2000)). If there is no genuine issue of material fact,

then “the moving party is entitled to judgment as a matter of law . . . .” Heigle, 771 So. 2d

at 345 (¶ 8) (quoting Miss. Dep’t of Wildlife, Fisheries & Parks v. Miss. Wildlife Enf’t

Officers’ Ass’n, Inc., 740 So. 2d 925, 930 (¶ 11) (Miss. 1999)). “On the other hand, ‘[i]f



                                              4
there is doubt as to whether or not a fact issue exists, it should be resolved in favor of the

non-moving party.’” Neely v. N. Miss. Med. Ctr., Inc., 996 So. 2d 726, 729 (¶ 11) (Miss.

2008) (quoting Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 70 (Miss. 1996) overruled

on other grounds by Owen v. Miss. Farm Bureau Cas. Ins. Co., 910 So. 2d 1065 (Miss.

2005)).

                                      DISCUSSION

¶8.    Anderson’s petition for writ of certiorari raises two issues. First, Anderson argues

that the chancery court erred by affirming the grant of summary judgment, and the Court of

Appeals erred by failing to reverse. Anderson also argues that Wiggins lacked evidence to

prove that Sanders was a vulnerable adult.

¶9.       “[T]he threshold for summary judgment is high and requires that ‘the pleadings,

depositions, answers to interrogatories and admissions on file, together with the affidavits,

. . . show that there is no genuine issue as to any material fact . . . .’” Stuckey v. The

Provident Bank, 912 So. 2d 859, 864 (Miss. 2005) (¶ 8) (quoting Miss. R. Civ. P. 56(c)).

A fact is material if it “tends to resolve any of the issues properly raised by the parties.”

Ladnier v. Hester, 98 So. 3d 1025, 1028 (¶ 10) (Miss. 2012) (internal quotation marks

omitted) (quoting Moss v. Batesville Casket Co., Inc., 935 So. 2d 393, 398 (¶ 16) (Miss.

2006)). “If any triable facts exist, the lower court’s grant of a summary judgment will be

reversed; otherwise the decision will be affirmed.” Stuckey, 912 So. 2d at 864 (¶ 8)

(emphasis added) (internal quotation marks omitted) (quoting Miller v. Meeks, 762 So. 2d




                                              5
302, 304 (¶ 3) (Miss. 2000)). Judge Tindell’s dissent in Anderson v. Wiggins explained

which party bears the burden of production and proof:

                 In a summary[-]judgment hearing, the burden of producing evidence in
         support of, or in opposition to, the motion is a function of Mississippi rules
         regarding the burden of proof at trial on the issues in question. The movant
         bears the burden of persuading the trial judge that: (1) no genuine issue of
         material fact exists, and (2) on the basis of the facts established, [s]he is
         entitled to [a] judgment as a matter of law. The movant bears the burden of
         production if, at trial, [s]he would bear the burden of proof on the issue raised.

Anderson, 2019 WL 2098392, at *7 (¶ 34) (Tindell, J., dissenting) (quoting Palmer v. Biloxi

Reg’l Med. Ctr. Inc., 564 So. 2d 1346, 1355 (Miss. 1990)). “[B]ecause [d]efendants do not

carry any burden of production at trial, they also do not carry any burden of production at the

summary-judgment stage.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 89 (¶ 13) (Miss.

2013).

¶10.     In Stuckey, the court reviewed a sworn complaint to determine if it constituted

evidence of triable issues of fact sufficient to defeat a motion for summary judgment.

Stuckey, 912 So. 2d at 864-65 (¶ 7). Stuckey had responded to a motion for summary

judgment with a sworn complaint, which contained a litany of allegations, after the moving

party had met its burden of persuasion. Id. at 866 (¶ 13). Stuckey relied solely on the sworn

complaint and argued it created a genuine issue of material fact. Id. Rejecting Stuckey’s

contention, the Court explained the provisions of Mississippi Rule of Civil Procedure 56(e)

in the context of whether a response to a motion for summary judgment is necessary. Id. at

867 (¶ 14). The Court reasoned,

         The provisions of Rule 56(e) which caution practitioners that “they may not
         rest upon the mere allegations or denials of [their] pleadings,” clearly do not

                                                 6
       mandate a grant of summary judgment if there is no response to the summary
       judgment motion; however, Rule 56(e) does caution that if the non-moving
       party fails to respond, summary judgment, if appropriate, shall be entered
       against [the non-moving party].

Id. at (¶ 15) (emphasis added).

¶11.   Here, Wiggins bore the initial burden of establishing the nonexistence of issues of

material fact when she moved for summary judgment on her conversion claim. Wiggins

argued that Anderson’s failure to provide evidence of a genuine issue of material fact entitled

her to summary judgment as a matter of law.

¶12.   “To establish a conversion, there must be proof of a wrongful possession, or the

exercise of a dominion in exclusion or defiance of the owner’s right, or of an unauthorized

and injurious use, or of a wrongful detention after demand.’” Evans v. Miss. Dep’t of

Human Servs., 36 So. 3d 463, 477 (¶ 59) (Miss. Ct. App. 2010) (emphasis added) (quoting

Cmty. Bank of Ellisville, Miss. v. Courtney, 884 So. 2d 767, 772–73 (¶ 10) (Miss. 2004)).

“[I]n order to maintain an action for conversion, there must have been, on the part of the

defendant, some unlawful assumption of dominion over the personal property [of the

plaintiff] . . . .” Wilson v. Gen. Motors Acceptance Corp., 883 So. 2d 56, 69 (¶ 51) (Miss.

2004) (emphasis added) (quoting First Inv’rs Corp. v. Rayner, 738 So. 2d 228, 234–35 (¶

27) (Miss. 1999)).

¶13.   Here, the Court of Appeals focused on Wiggins’s vulnerable adult argument when

reviewing the chancery court’s granting of summary judgment and explained that “at issue

is whether Sanders qualifies as a vulnerable adult.” Anderson, 2019 WL 2098392, at *5 (¶

21). The Court of Appeals relied on Dr. Evans affidavit that explained that Sanders “did not

                                              7
have the . . . mental capacity to realize he was transferring this large sum of money or any

money to Chasity Anderson or the consequences of his actions . . . .” Id. at *5 (¶ 23). The

Court of Appeals wrote that Anderson had more than sixty-eight days to respond to Wiggins

motion for summary judgment and failed to do so. Id. at *5 (¶ 23). Affirming the decision

of the chancery court, the Court of Appeals reasoned that “Anderson could not show that

there was a genuine dispute of material fact.” Id. at *5 (¶ 23). However, resting on mere

allegations or failing to respond to a motion for summary judgment does not mandate

granting the motion. Stuckey, 912 So. 2d at 864-65 (¶ 15); see also Dennis v. Searle, 457

So. 2d 941, 947 (Miss. 1984) (overruling a grant of summary judgment, finding that the

moving party failed to carry the required burden of establishing the nonexistence of genuine

issues of material fact; despite [the] non-moving party’s offering nothing to dispute the

motion for summary judgment), disagreed with on other grounds by Thornhill v. Sys. Fuels,

Inc., 523 So. 2d 983 (Miss. 1988)). Moreover, there is more than one genuine issue of

material fact here.

¶14.   While vulnerability may be one issue, it is not the only one. The vulnerable adult

statute, Mississippi Code Section 11-7-165 (Rev. 2019), provides, in relevant part,

       In a civil action where it is proven that a person took property having a value
       of Two Hundred Fifty Dollars ($250.00) or more belonging to a vulnerable
       adult by conversion, embezzlement, extortion, theft or fraud without the
       owner’s consent, or obtained the owner’s consent by intimidation, deception,
       undue influence or by misusing a position of trust or a confidential relationship
       with the owner, then whether the action is to recover the property or damages
       in lieu thereof, or both, damages shall be recoverable up to three (3) times the
       amount of the monetary damages or value of the property embezzled,
       converted or otherwise stolen, in addition to any other damages.



                                              8
Miss. Code. Ann. § 11-7-165(1)(a) (Rev. 2019) (emphasis added).

¶15.   The plain language of the statute sets out the factual elements of Wiggins’s claim.

Those issues are whether Wiggins—as the moving party—proved that: (1) Anderson; (2)

took property having a value of $250.00 or more (3) that belonged to Sanders, a vulnerable

adult, by (4) conversion, undue influence or by utilizing her position of trust to take

advantage of a vulnerable adult.

¶16.   It is true that Wiggins supported her claim of conversion by producing evidence

showing that Sanders qualified as a vulnerable adult. Anderson, 2019 WL 2098392, at *5

(¶ 21). Indeed, as the plain language of the Vulnerable Adult Statute reveals, individuals can

make a complaint for conversion by proving that, among other things, an adult is vulnerable.

Miss. Code Ann. § 11-7-165 (Rev. 2019). In support of her motion for summary judgment,

Wiggins offered multiple exhibits:


       Exhibit A:    A copy of the complaint, which included copies of the
                     following: (1) a July 25, 2014 check for $12,295 to J&J Auto
                     Brokers signed by Sanders from his account; (2) a January 12,
                     2015 bank check for $100,072.73 to Anderson; (3) a January 23,
                     2015 bank check for $100,000 to Anderson; and (4) a Trustmark
                     National Bank gift letter signed by Sanders acknowledging that
                     Sanders was gifting $105,000 to Anderson for the purchase of
                     property located at 112 Saint Charles Avenue, Florence,
                     Mississippi 39073.

       Exhibit B:    A January 6, 2015 check for $500 to Remax Alliance signed by
                     Anderson from her account.

       Exhibit C:    A MLS listing for a house for sale located at 112 Saint Charles
                     Avenue, and the accompanying purchase contract executed on
                     January 6, 2015, for the same house for a purchase price of
                     $261,000.

                                              9
         Exhibit D:    A warranty deed to Anderson dated February 5, 2015, for the
                       property at 112 Saint Charles Avenue.

         Exhibit E:    A judgment deeming requests for admissions admitted.

         Exhibit F:    Wiggins’s first set of requests for admissions propounded to
                       Anderson.

         Exhibit G:    Dr. Evans’s opinion and affidavit.

         Exhibit H:    Anderson’s answer to the complaint and affirmative defenses.

Anderson, 2019 WL 2098392, at *7 (¶ 36) (Tindell. J., dissenting).

¶17.     Of all the transfers made, the crux of Wiggins’s complaint for conversion rests with

three:

         1.     On January 12, 2015, Sanders issued a check payable to Trustmark
                Bank in the amount of $100,072.73;

         2.     A Trustmark National Bank gift letter signed by Sanders on January 22,
                2015, acknowledged that he was gifting $105,000 to Anderson for the
                purchase of property located at 112 Saint Charles Avenue, Florence,
                Mississippi;

         3.     January 23, 2015: a bank check for $100,000, payable to Anderson
                from Sanders account.

Wiggins averred that Anderson’s admissions and Dr. Evans’s opinion “remove[d] any

question of there being a factual dispute to be rendered by this Court.”

¶18.     We agree with Judge Tindell’s dissent pertaining to Exhibits A through D. Judge

Tindell explained that “Exhibits A through D only offer evidence of financial transactions

made between or by Sanders and Anderson. . . . Sanders himself authorized the transactions

. . . .” Anderson, 2019 WL 2098392, at *8 (¶ 37) (Tindell, J., dissenting). Indeed, a review



                                              10
of the record reveals no evidence that Anderson exercised “dominion in exclusion or

defiance of [Sanders’s] rights.” Evans v. Miss. Dep’t of Human Servs., 36 So. 3d 463, 477

(¶ 59) (Miss. Ct. App. 2010) (internal quotation mark omitted) (quoting Cmty. Bank of

Ellisville, Miss. v. Courtney, 884 So. 2d 767, 772–73 (¶ 10) (Miss. 2004)). Additionally,

there is no evidence in the record that Sanders demanded Anderson return the funds;

therefore, there can be “no wrongful detention after demand.” Id. (internal quotation mark

omitted) (quoting Courtney, 884 So. 2d at 772–73 (¶ 10)). Accordingly, as it pertains to her

claim of conversion at the summary judgment hearing, Wiggins bore the burden of

establishing Sanders’s vulnerability and that Anderson wrongfully converted and possessed

Sanders’s funds by means of undue influence.

¶19.   To raise a presumption of undue influence, the contestant must show “the existence

of a confidential relationship between the testator and a beneficiary . . . , along with

suspicious circumstances.” Stover v. Davis, 268 So. 3d 559, 563 (¶ 12) (Miss. 2019) (citing

Croft v. Alder, 237 Miss. 713, 723, 115 So. 2d 683, 686 (1959)). “Th[e] Court has held in

numerous cases that the burden of establishing the existence of a confidential relationship

is upon the party asserting it.” West v. Johnson (In re Estate of Johnson), 237 So. 3d 698,

708 (¶ 27) (Miss. 2017) (internal quotation marks omitted) (quoting Norris v. Norris, 498

So. 2d 809, 813 (Miss. 1986)). Several factors are considered when determining whether a

confidential relationship exists:

       (1) whether one person has to be taken care of by others, (2) whether one
       person maintains a close relationship with another, (3) whether one person is
       provided transportation and has their medical care provided for by another, (4)
       whether one person maintains joint accounts with another, (5) whether one is

                                             11
       physically or mentally weak, (6) whether one is of advanced age or poor
       health, and (7) whether there exists a power of attorney between the one and
       another.

Dabney v. Hataway (In re Estate of Dabney), 740 So. 2d 915, 919 (¶ 12) (Miss. 1999).

However, in another case, the Court explained,

       A presumption of undue influence is not raised merely because a beneficiary
       occupies a confidential relationship with the testator; something more is
       required, such as active participation by the beneficiary in the procurement,
       preparation or execution of the will or mental infirmity of the testator.

       In other words, there must be some showing that [the beneficiary] abused the
       relationship either by asserting dominance over the testator or by substituting
       her intent for that of [the testator].

Gallaspy v. Gallaspy (In re Will of Wasson), 562 So. 2d 74, 78 (Miss. 1990) (quoting Simm

v. Adams (In re Will of Adams), 529 So. 2d 611, 615 (Miss. 1988)).

¶20.   To prove her claim of conversion by undue influence, Wiggins relied on Anderson’s

admissions and the affidavit of Dr. Evans. As to the first element of a confidential

relationship, Sanders undoubtedly needed care given to him by others. Importantly, Wiggins

proclaimed that she “was the primary care giver[,] as she basically to moved to Jackson,

Mississippi, in the fall of 2014 where she cared for and was present . . . for over three (3)

months.” Moreover, there is evidence of Sanders’s deteriorating health. As it pertains to

Anderson and Sanders’s relationship, Wiggins’s complaint explains that the two

“reconnected online.” The admissions do prove that the day Sanders signed the gift letter,

Anderson’s mother drove him from the hospital to Anderson’s place of employment.

However, the nature of that transaction and its circumstances are unknown. Additionally,




                                             12
there is no proof that Anderson and Sanders shared a joint account or that a power of attorney

for Sanders existed.

¶21.   Weighing these factors raises doubt about whether there was a confidential

relationship between Sanders and Anderson. Even assuming a confidential relationship

exists, there is no proof in the record as to what extent, if any, Anderson participated in the

procurement, preparation, or execution of the transfers. Accordingly, we hold that Wiggins

failed to prove, at the summary judgment hearing, that Anderson wrongfully converted

Sanders’s funds by means of undue influence.

¶22.   Anderson’s second argument is that there is a lack of evidence as to whether Sanders

qualified as a vulnerable adult. Like her conversion argument, Wiggins relied on Anderson’s

admissions and Dr. Evans’s affidavit to support her contention that Sanders was a vulnerable

adult and lacked the mental capacity necessary to understand the transfers he made. Wiggins

also argued that Anderson took advantage of her position of trust with Anderson when he

was vulnerable. Wiggins averred that Sanders “was in a constant state of confusion and did

not have the mental capacity to manage his money nor make cognizant decisions which were

in his best interest.” Mississippi Code Section 43-47-5(q) (Rev. 2015) defines a “vulnerable

person” as

       [A] person, whether a minor or adult, whose ability to perform the normal
       activities of daily living or to provide for his or her own care or protection
       from abuse, neglect, exploitation or improper sexual contact is impaired due
       to a mental, emotional, physical or developmental disability or dysfunction, or
       brain damage or the infirmities of aging.

Miss. Code Ann § 43-47-5(q) (Rev. 2015).



                                              13
¶23.   Assuming Sanders is a vulnerable adult “does not mean that the individual is

incompetent to transfer his or her assets to another.” Anderson, 2019 WL 2098392, at *9

(¶ 41) (Tindell, J., dissenting). Incapacity requires a showing that the person either “(1) did

not understand the legal consequences of his actions; (2) suffered from a general ‘weakness

of intellect’ with either inadequate consideration given for the transfer, or a confidential

relationship; or (3) suffered from permanent insanity up to and after the date of execution.”

Van Quinn v. Quinn, 278 So. 3d 1160, 1166 (¶ 23) (Miss. Ct. App. 2019) (quoting Smith

v. Smith, 574 So. 2d 644, 653-54 (Miss. 1990)). Except for permanent insanity, the critical

time for determining capacity is the transfer date. Smith, 574 So. 2d at 653.

¶24.   In In re Estate of Laughter, the Court sought to determine whether a testator had

testamentary capacity to make an inter vivos gift to his wife. In re Estate of Laughter, 23

So. 3d at 1061 (¶ 18). The court explained that “[t]he mere fact that someone is too ill to

handle his affairs does not in and of itself render him mentally incompetent or void of

testamentary capacity.” Id. at (¶ 22). “Th[e] Court recognize[d] that mental incapacity or

insanity, ‘is not always permanent, and a person may have lucid moments or intervals when

that person possesses necessary capacity to convey property.’” Whitworth v. Kines, 604 So.

2d 225, 229 (Miss. 1992) (quoting Smith, 574 So. 2d at 653). “[T]he testator must be of

‘sound and disposing mind’ at the time of . . . execution.” Noblin v. Burgess, 54 So. 3d 282,

291 (¶ 32) (Miss. Ct. App. 2010) (quoting Miss. Code Ann. § 91-5-1 (Rev. 2004)). “The

requirement of a sound and disposing mind does not mean the testator’s mind must be as

good as it ever was.” Noblin, 54 So. 3d at 291 (¶ 32).



                                              14
¶25.   In Edwards v. Edwards (In re Estate of Edwards), 520 So. 2d 1370 (Miss. 1988), the

Court considered similar facts. On September 30, 1982, Jimmie Edwards, the testator, and

his son, Jerry, drove to their lawyer’s firm to draw up a new will. Id. at 1371. Jimmie

created the will and he and Jerry proceeded to the bank where two individuals witnessed the

will’s execution. Id. at 1371-72. After Jimmie’s death, Loree, Jimmie’s wife, contested the

validity of the will, arguing undue influence and a lack of testamentary capacity. Id. Loree

relied on the testimony of Jimmie’s doctors, who were not present during the will’s execution

on September 30, 1982. Id. The doctors testified that, based on their previous examinations,

Jimmie’s mental capacity would have been substantially impaired by the date Jimmie

executed the will due to previous “chronic mental problems.” Id.         However, the two

witnesses that personally observed Jimmie’s execution of the will testified that they found

Jimmie “sane and sober,” explaining that they “noticed nothing unusual” about the testator.

Id.

¶26.   Though the chancery court found no undue influence, the Edwards Court reversed the

court’s finding that Jimmie lacked the requisite testamentary capacity. Id. at 1373.    The

Edwards Court explained that capacity “is to be tested as of the date of execution of the

will.” In re Estate of Edwards, 520 So. 2d 1370, 1372 (Miss. 1988) (internal quotation

marks omitted) (quoting Scally v. Wardlaw, 123 Miss. 857, 878, 86 So. 625, 626 (1920)).

The Court noted that the chancellor leaned heavily on the testimony of the doctors whose

most recent examination of Jimmie had occurred more than one year before. In re Estate of

Edwards, 520 So. 2d at 1373. The Court explained that



                                             15
       [W]hether Jimmie D. Edwards possessed testamentary capacity when attended
       by his physicians months before the will’s execution, is irrelevant to the issue
       before us; rather, we are concerned with his testamentary capacity on
       September 30, 1982. Recognizing that a testator may not always possess
       testamentary capacity, we have held that he may nevertheless execute a valid
       will during a lucid interval.

Id. (citing Lee v. Lee, 337 So. 2d 713, 715 (Miss. 1976); Gholson v. Peters, 180 Miss. 256,

267, 176 So. 605, 606 (1937); Lum v. Lasch, 93 Miss. 81, 87, 46 So. 559 (1908)).

¶27.   Here, Wiggins argues that Dr. Evans’s opinion supports a finding that Sanders lacked

the requisite capacity to transfer his assets. Dr. Evans is a neuropsychologist at Methodist

in Jackson, Mississippi, and was a part of a team that treated Sander the fourteen days he was

there. Sanders’s treatment dates ranged from November 14, 2014, to November 28, 2014.

While at Methodist, Dr. Evans observed Sanders’s “aberrant behavior and neurological

seizures.” She also opined that Sanders was on multiple medications, some of which could

have affected his mental capacity and cognitive deficits. Dr. Evans opined that “at the time

of discharge from Methodist, Sanders was weak, ill and had cognitive impairments which

classified him as a vulnerable adult under the laws of the State of Mississippi.”

¶28.   When it came to formulating a medical opinion regarding Sanders’s mental capacity

at the time of the January 2015 transfers, Dr. Evans referenced her previous interactions with

Sanders and medical notes taken by a speech pathologist during Sanders’s outpatient-

rehabilitation services. The outpatient services continued from December of 2014 through

January of 2015. Looking to the January 12, 2015 transfer, Dr. Evans relied upon a review

of the therapist’s notes taken on January 13, 2015, which stated that Sanders was “having

trouble remembering to take his medications.” Dr. Evans opined, to a reasonable degree of

                                             16
neuropsychological/medical probability, that Sanders did not have the cognitive ability or

mental capacity to realize he was transferring large sums of money. As for the January 22,

2015 transactions, it appears that Dr. Evans relied on the therapist’s notes taken four days

earlier to reach the same conclusion. However, Dr. Evans opined she reviewed notes taken

by the speech pathologist on the same day that Sanders signed the gift letter. The therapist’s

notes explained that “[Sanders] showed delays in speed of processing and needed assistance

(cues) when working on executive functioning exercises with regard to reasoning and

problem solving.”

¶29.   Nowhere in Dr. Evans’s affidavit does she state that Sanders was incompetent or

insane. Because Dr. Evans did not claim that Sanders was incompetent or insane, we need

not concern ourselves with Sanders’s capacity when attended by his physicians months or

even days before he made the transfers. Therefore, the critical date for determining

Sanders’s capacity to transfer his funds is the transfer dates. Smith v. Smith, 574 So. 2d 644,

653 (Miss. 1990) (explaining that the critical time for determining the capacity of someone

who suffers from a weakness of intellect or great weakness of mind is the date of execution).

Accordingly, there must be a showing that Sanders either “did not understand the legal

consequences of his actions” or that he “suffered from a ‘general weakness of intellect’ [and

had] a confidential relationship” with Anderson. Van Quinn, 278 So. 3d at 1166 (¶ 23)

(quoting Smith, 574 So. 2d at 653-54).

¶30.   Taking Dr. Evans’s affidavit as true and assuming Dr. Evans did review notes taken

on the same day that Sanders signed the gift letter does not necessarily mean that he was



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unable to understand the legal consequence of his actions. The record contains no evidence

of the level of difficulty as it pertains to the “executive functioning exercises” that Sanders

supposedly performed on the day he signed his gift letter. In fact, there is no proof that these

exercises pertained to Sanders testamentary capacity. Moreover, even if these exercises

prove that Sanders suffered from a general “weakness of intellect,” Anderson’s admissions

do not establish a confidential relationship. Though Dr. Evans’s opinion provides a plethora

of persuasive facts, it, at most, establishes that Sanders may have qualified as a vulnerable

adult the day of the transfers. However, it is unclear that Dr. Evans properly understood the

legal term “testamentary capacity.”

¶31.   At its core, the case sub judice arose from a conversion claim. Assuming Sanders

qualified as a vulnerable adult does not prove that Anderson wrongfully obtained Sanders’s

funds by means of undue influence. Of the three main transfers made, we only know that

Anderson’s mother drove Sanders to Anderson’s place of employment to sign the gift letter.

We know nothing of the surrounding facts and circumstances as it pertains to the other

transfers made.

¶32. The Court of Appeals opinions both make reasonable arguments. However, genuine

issues of material fact remain unresolved. “If there is doubt as to whether or not a fact issue

exists, it should be resolved in favor of the nonmoving party.” Neely, 996 So. 2d at 729 (¶

11). Here, doubt remains as to whether Anderson wrongfully converted Sanders’s funds.

                                       CONCLUSION




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¶33.   The Chancery Court erred by granting the motion for summary judgment. Viewing

the evidence in the light most favorable to the nonmoving party leaves genuine issues of

material fact unresolved. Accordingly, the Court reverses the judgments of the Rankin

County Chancery Court and of the Court of Appeals and remands the case to the chancery

court for further proceedings.

¶34.   REVERSED AND REMANDED.

    RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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