author: WALLER, Justice,

text:
    SOUTHWOOD DOOR COMPANY v. Raymond BURTON.
    No. 2002-CC-00893-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.

      Timothy W. Lindsay, Flowood, attorney for appellant.
    Steven D. Slade, Meridian, attorney for appellee.
    Before McRAE, P.J., WALLER and GRAVES, JJ.
   WALLER, Justice,

for the Court.

¶ 1. Raymond Burton, a truck driver, was terminated by his employer, South-wood Door Company, after testing positive on a random drug test. Burton thereafter sought unemployment compensation benefits which were denied by the Board of Review of the Mississippi Employment Security Commission (MESC). Burton appealed the denial of benefits to the Lauderdale County Circuit Court which reversed the denial and awarded Burton benefits. Southwood appeals the judgment of the circuit court. Finding the circuit court’s resolution ultimately correct, we affirm the award of benefits.

FACTS AND PROCEDURAL HISTORY

¶ 2. Southwood Door Company manufactures and distributes doors nationwide. Since it employs over-the-road drivers, Southwood was subject to federal Department of Transportation regulations governing the drug and alcohol testing of its drivers. 49 U.S.C. § 31306 (2003); 49 C.F.R. Part 40 (1999). On July 6, 1999, Southwood employee Raymond Burton was randomly selected for drug testing and reported for testing on July 9, 1999. See 49 U.S.C. § 31306(b) (allowing preem-ployment, reasonable suspicion, random, and post-accident testing of operators of commercial motor vehicles). Burton underwent a “Breathalyzer” alcohol test and urine drug test at the MEA Drug Testing Consortium’s satellite collection facility in Quitman, Mississippi.

¶ 3. Lori Hale, a representative of MEA, notified Burton by telephone on July 12, 1999, that he had tested positive for marijuana. Burton was subsequently terminated on July 13, 1999, pursuant to Southwood’s policy which provides for termination in the event of any positive drug or alcohol test.

¶4. Burton underwent another urine test at his own expense on July 14, 1999, which yielded a negative result for marijuana. Pursuant to 49 C.F.R. § 382.605, Burton was referred to Patricia Sandusky, Ph.D., a Substance Abuse Professional. Dr. Sandusky concluded that Burton did not have a substance abuse problem and believed Burton’s assertions that the methods employed in the collection of his specimen were faulty. She further recommended that Burton undergo a hair follicle drug test which would reveal drug use within the last 90 days. This test yielded a negative result as well.

¶ 5. Southwood denied Burton’s request that he be reinstated to his position, and on September 12, 1999, he applied with the MESC for unemployment compensation benefits. The claims examiner found that Southwood did not show that it had terminated Burton for misconduct and deemed him eligible for benefits.

¶ 6. Southwood appealed, and a hearing was conducted before Appeals Referee Timothy Rush on November 18, 1999. The referee reversed the claims examiner and disqualified Burton from benefits, stating:

The Referee is of the opinion that the claimant was discharged for violation of the company’s drug policy after he tested positive for use of marijuana. The Referee is of the opinion that the claimant’s actions constituted misconduct connected with the work as that term is used in the Unemployment Insurance Law. The decision of the Claims Examiner will be cancelled.

¶ 7. As stated in the ruling and pursuant to Miss.Code Ann. § 71-5-519 (2000), the decision of the referee would become final unless an appeal was filed within fourteen days after the notification or mailing of the decision. The Board received Burton’s notice of appeal on December 4, 1999, and dismissed the appeal as untimely.

¶ 8. Burton appealed the dismissal of his appeal to the Lauderdale County Circuit Court. According to the MESC, Burton’s notice of appeal was received one day late at the wrong address. However, the court found good cause to remand Burton’s case for a review on the merits. This decision was never appealed.

¶ 9. On remand, the Board of Review affirmed the decision of the Appeal Referee, stating:

The Board of Review agrees with the Findings of Fact as stated by the Appeal Referee in his decision of November 19, 1999. The facts also show that subsequent to the random drug test taken by the claimant on July 19, 1999, the claimant had other drug tests on his behalf, which test[s] proved to be negative.
The Board agrees with the Opinion of the Referee that the claimant was discharged for violation of the company’s drug policy after he tested positive for use of marijuana. The test taken on July 19, 1999[,] was positive for marijuana and such was a violation of the company policy, which was known and understood by the claimant. The result of any subsequent test taken by the claimant does not alter the fact that the test on July 19, 1999[,] was positive. The decision of the Appeals Referee, therefore, will be affirmed.

(emphasis in original).

¶ 10. Burton again appealed to the Lauderdale County Circuit Court. Faced with the question of whether Burton’s positive test result could be considered “misconduct” under Mississippi law, the court analyzed the Drug and Alcohol Testing of Employees Law, Miss.Code Ann. §§ 71-7-1 to -33 (2000), as it applied to employment security cases. The court found that since a confirmation test on Burton’s specimen had not been conducted, Southwood failed to prove misconduct by clear and convincing evidence. The court also refused to address the timeliness issue, holding that the failure to appeal the circuit court’s prior decision to remand barred subsequent review. The decision of the Board of Review was reversed.

¶ 11. Southwood appeals and raises three assignments of error, arguing the circuit court erred in finding good cause to relax Burton’s time to appeal, the circuit court applied an improper legal standard to determine that Burton had committed misconduct, and the circuit court erred in applying Mississippi’s drug testing statutes to Southwood.

STANDARD OF REVIEW

¶ 12. Miss.Code Ann. § 71-5-531 (2000) provides the appropriate standard of review in cases reviewing decisions of the Board of Review: “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” See also Johnson v. Miss. Employment Sec. Comm’n, 761 So.2d 861, 863 (Miss.2000); Coahoma County v. Miss. Employment Sec. Comm’n, 761 So.2d 846, 848-49 (Miss.2000); Miss. Employment Sec. Comm’n v. Lee, 580 So.2d 1227, 1229 (Miss.1991); Wheeler v. Arriola, 408 So.2d 1381, 1384 (Miss.1982); Brandon v. Miss. Employment Sec. Comm’n, 768 So.2d 341, 344 (Miss.Ct.App.2000).

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN REVERSING THE BOARD OF REVIEW’S DISMISSAL OF BURTON’S APPEAL AS UNTIMELY.

¶ 13. The Appeals Referee entered his decision on November 19, 1999, and indicated that a request for review had to be filed within fourteen days and addressed to Mississippi Employment Security Commission, Board of Review, P.O. Box 1699, Jackson, MS 39215-1699. Burton was also mailed a Notice of Overpayment of Benefits dated November 29,1999, which indicated that an appeal had to be filed within fourteen days and addressed to Mississippi Employment Security Commission, P.O. Box 23088, Jackson, MS 39225-3088 The MESC received Burton’s request for review dated December 2, 1999, addressed to Mississippi Employment Security Commission, Board of Review, P.O. Box 23088, Jackson, MS 39225-3088, on December 4, 1999, apparently one day late and at the wrong address.

¶ 14. The Board of Review dismissed Burton’s appeal as untimely. Burton appealed to the Lauderdale County Circuit Court which reversed the Board of Review’s dismissal as untimely and remanded for a decision on the merits. According to Burton, he mailed his request for review to both P.O. Box 1699 and P.O. Box 23088. However, there is no record of the MESC ever receiving or acknowledging receipt of the P.O. Box 1699 request for review. Southwood never appealed the circuit court’s decision to reverse and remand Burton’s case back to the Board of Review.

¶ 15. Southwood argues that the circuit court’s decision to remand Burton’s claim was interlocutory and thus not appealable and cites in support our decision in Wilson v. Miss. Employment Security Comm’n, 643 So.2d 538 (Miss.1994). In Wilson, the Lauderdale County Circuit Court remanded a case back to the MESC after finding the record insufficient to support the employer’s discharge of its employee. Id. at 539. We dismissed the appeal on the grounds that it was interlocutory. Id. at 540. The circuit court in Wilson did not explicitly affirm or reverse the decision of the MESC. Rather, it reversed and remanded for more information.

¶ 16. In J.R. Logging v. Halford, 765 So.2d 580 (Miss.Ct.App.2000), a workers’ compensation case, Presiding Judge South-wick of the Court of Appeals, in a concurring opinion, aptly explained the fine distinction to be drawn between an appeal from a final order and an interlocutory appeal in administrative agency cases. The employee, Halford, was injured and entered into a settlement with his employer. 765 So.2d at 582. Halford later attempted to reopen his claim alleging a mistake of fact, but the administrative law judge denied the petition. Id. After the commission affirmed, Halford appealed to circuit court which reversed, finding the commission’s finding was clearly erroneous. Id. The Court of Appeals subsequently reversed the circuit court and affirmed the denial of Halford’s petition to reopen his claim. Id.

¶ 17. Presiding Judge Southwick’s separate opinion addressed the procedural aspects of the case. His analysis began with our 1991 opinion in Bickham v. Dep’t of Mental Health, 592 So.2d 96 (Miss.1991), a consolidation of two workers’ compensation cases in which the commission sent one case to an administrative law judge to determine whether an employee could reopen her claim and another case to an administrative law judge to hear a claim which had been reopened. He noted both cases had been appealed prior to any action being taken by the ALJ- or commission and that we found both appeals to be improper interlocutory appeals because no final decision had been entered. 592 So.2d at 586.

¶ 18. Wilson was likewise analyzed, and Presiding Judge Southwick noted that we did not determine that the MESC had erred but only that the employer did not produce evidence to support the employee’s discharge. 765 So.2d at 587. He further interpreted our holding in Wilson:

I conclude that the reason the circuit court decision in Wilson was not final was because it neither accepted nor rejected the MESC action. Instead, it asked for more information. Ultimately the circuit court might approve what the MESC decided as to benefits. Had the Wilson circuit court instead decided that the MESC definitely erred and sent the case back for farther proceedings to determine the proper benefits, I believe that would be a final judgment subject to farther review at the Supreme Court. To me that is the better view of Wilson, else no reversal and remand by an appellate court (which is the status of the circuit court in reviewing those agency decisions) would be a final judgment.

Id. (emphasis added). We agree with this interpretation.

¶ 19. Here, the original circuit court reverse and remand was not concerned with the merits of Burton’s claim; it was reversed on a procedural issue, namely, the timeliness of an appeal and remanded for a decision on the merits. There is not, as there was in Wilson, a circuit court determination that the record was insufficient to decide whether the employer had produced enough evidence to support the discharge of its employee. See 643 So.2d at 539. The MESC’s decision to bar review of Burton’s appeal on timeliness grounds was indicative of the finality of the agency’s decision, and the circuit court held that it was error to do so. The circuit court’s reverse and remand on the issue of timeliness was therefore not interlocutory in nature, and Southwood should have appealed that decision.

II. WHETHER THE CIRCUIT COURT APPLIED AN IMPROPER LEGAL STANDARD TO DETERMINE THAT BURTON HAD NOT COMMITTED MISCONDUCT FOR PURPOSES OF THE MISSISSIPPI EMPLOYMENT SECURITY LAW.

¶ 20. Since the drug testing of employees like Burton is governed by federal regulations, we will discuss the federal drug testing scheme in general, Mississippi law regarding “misconduct” as a disqualification to unemployment compensation benefits, and the application of those two concepts to the instant case.

A. Federal Drug Testing in General

¶ 21. An employee who is, for example, randomly selected for testing reports to a Department of Transportation-compliant collection site, 49 C.F.R. § 40.3, and provides a urine specimen. 49 C.F.R. § 40.25. After the employee produces a specimen, the collector takes it and, while in the employee’s presence, pours at least 30 mL from the collection container to another bottle which will be the primary specimen and pours at least 15 mL into another bottle which will be the split specimen. 49 C.F.R. § 40.25(f)(10)(ii)(B)(l).

¶ 22. Both specimens are then shipped to a DOT-compliant drug testing laboratory which initially tests the primary specimen for marijuana, cocaine, amphetamines, opiates, and phensyblidine (PCP). 49 C.F.R. § 40.29. If the initial test returns a negative result, the test is complete; however, if the initial test returns positive, a confirmation test is conducted. Id.

¶ 23. The results of the testing of the primary specimen are reported to the Medical Review Officer (MRO), a licensed physician, 49 C.F.R. § 40.3, whose responsibility, among other things, is to “review and interpret confirmed positive test results. ...” 49 C.F.R. § 40.33(b)(3). If the MRO receives a confirmed positive result, he must contact the employee directly pri- or to verification to determine whether the employee wants to discuss the result and inform the employee that the test will be verified as positive if he declines to do so. 49 C.F.R. § 40.33(c)(2). If the confirmed positive result is for marijuana, cocaine, amphetamines, and/or PCP, the MRO must allow the employee “to present information concerning a legitimate explanation for the confirmed positive test.” 49 C.F.R. § 40.33(c)(6). Also, the MRO “shall notify each employee who has a confirmed positive test that the employee has 72 hours in which to request a test of the split specimen.” 49 C.F.R. § 40.33(f)(1). In the event the employee does in fact request testing of the split specimen, the split specimen is sent to a second laboratory for testing. Id.

¶ 24. For federal purposes, the practical effect of a confirmed test result is that the employee is prohibited from performing safety-sensitive functions. An employee is not eligible to drive again until he completes the Return-to-Duty Process with a Substance Abuse Professional (SAP). 49 C.F.R. § 382.605. The SAP’s duties- are, among other things, to make a clinical assessment and evaluation of the employee, refer the employee to an education or treatment program, and conduct a follow-up evaluation to determine the employee’s participation in treatment programs and compliance with recommendations. Id.

¶25. In the instant case, Burton received notification from Lori Hale that he tested positive for marijuana. The Results of Controlled Substance Test form states that Burton’s MRO was Dr. Chris Schwartz. There is no indication that the MRO contacted Burton directly or informed Burton that he had 72 hours to request testing of his split specimen as required by 49 C.F.R. § 40.33(c)(2).

B. Disqualifying “Misconduct” in Mississippi

¶ 26. Miss.Code Ann. § 71-5-513 A(l)(b) (Supp.2002) provides that an employee shall be disqualified from receiving benefits:

For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the commission, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.

(emphasis added). We defined “misconduct” in Wheeler v. Arriola, 408 So.2d 1381 (Miss.1982). Relying on Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941), we noted:

The [Boynton ] Court held that the meaning of the term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregards of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

Wheeler, 408 So.2d at 1383. This definition has been applied by this Court and the Court of Appeals since 1982 in cases finding sufficient evidence of misconduct. See Halbert v. City of Columbus, 722 So.2d 522 (Miss.1998) (holding that employee’s failure to submit to random drug test within required three-hour time frame of being notified constituted misconduct). See also Young v. Miss. Employment Sec. Comm’n, 754 So.2d 464 (Miss.1999) (affirming denial of benefits and finding that employee’s failure to relinquish identification badge upon suspension constituted misconduct); Captain v. Miss. Employment Sec. Comm’n, 817 So.2d 634 (Miss.Ct.App.2002) (affirming denial of unemployment compensation to employee terminated for violating company e-mail policy); Reeves v. Miss. Employment Sec. Comm’n, 806 So.2d 1178 (Miss.Ct.App.2002) (affirming denial of benefits to employee terminated for failing to clean parts as instructed); Miss. Employment Sec. Comm’n v. Berry, 811 So.2d 298 (Miss.Ct.App.2001) (reversing circuit court reversal of Board of Review denial of benefits to employees of catfish processing plant who went on strike in violation of collective bargaining agreement); Miss. Employment Sec. Comm’n v. Douglas, 758 So.2d 1059 (Miss.Ct.App.2000) (reversing circuit court reversal of Board of Review denial of benefits to employee terminated for manufacturing fake identification cards away from work when some of the counterfeit cards were found in personnel files of other employees). Also, we and the Court of Appeals have affirmed awards of benefits or reversed denials of benefits for lack of substantial evidence of misconduct. See Coahoma County v. Miss. Employment Sec. Comm’n, 761 So.2d 846 (Miss.2000) (affirming award of benefits to employee found not to be engaged in misconduct when failing to report coworker for covering up surveillance cameras at Coahoma County jail); Huckabee v. Miss. Employment Sec. Comm’n, 735 So.2d 390 (Miss.1999) (on motion for rehearing) (reversing denial of benefits because there was lack of substantial evidence that employee voluntarily quit job as cashier without good cause); Trading Post, Inc. v. Nunnery, 731 So.2d 1198 (Miss.1999) (affirming award of benefits to employee on basis that absence from work did not constitute misconduct); Brandon v. Miss. Employment Sec. Comm’n, 768 So.2d 341 (Miss.Ct.App.2000) (finding insufficient evidence to justify denial of benefits to employee nurse accused of violating hospital policy by obtaining application for absentee ballot for patient); Miss. Employment Sec. Comm’n v. Jones, 755 So.2d 1259 (Miss.Ct.App.2000) (affirming circuit court reversal of denial of benefits to employee terminated for shortage in cash drawer on three occasions on basis that such violations not misconduct); Little v. Miss. Employment Sec. Comm’n, 754 So.2d 1258 (Miss.Ct. App.1999) (finding no substantial evidence to justify circuit court’s affirming of Board of Review denial of benefits to employee accused of wrongfully taking desserts from refrigerator of employer Kentucky Fried Chicken); Routt v. Miss. Employment Sec. Comm’n, 753 So.2d 486 (Miss.Ct.App.1999) (finding employee maid’s refusal to scrub floors because of physical ailment did not amount to misconduct). The burden of proving this disqualifying misconduct by clear and convincing evidence rests with the employer. Gore v. Miss. Employment Sec. Comm’n, 592 So.2d 1008, 1010 (Miss.1992).

C. The Instant Case

¶ 27. Southwood’s termination of Burton on July 13, 1999, just one day after he was notified of his positive result, is pertinent for our purposes only to the extent it bears on Burton’s eligibility for benefits. Mississippi is an employment-at-will state such that employees can be terminated for good reason, bad reason, or no reason. See Slatery v. Northeast Miss. Contract Procurement, Inc., 747 So.2d 257, 259 (Miss.1999); Levens v. Campbell, 733 So.2d 753, 760 (Miss.1999); Bobbitt v. Orchard, Ltd., 603 So.2d 356, 360-61 (Miss.1992).

¶ 28. Southwood has failed to carry its burden of producing clear and convincing evidence of misconduct by Burton. The only evidence presented to the Appeals Referee was the testing documentation and testimony of A1 Ladner, Southwood’s Purchasing Inventory and Transportation Supervisor, who was quite knowledgeable of the federal testing scheme but possessed very little personal knowledge of the circumstances surrounding Burton’s testing. The extent of Ladner’s knowledge of Burton’s testing was his being informed by Lori Hale of the positive test result.

¶29. The federal scheme only endeavors to provide commercial motor vehicle safety. See 49 U.S.C. § 31306. It is completely silent on termination, reinstatement and unemployment compensation matters. See 53 Fed.Reg. 47134, 47148 (Nov. 21, 1998) (stating that “[i]ssues such as termination, reassignment, hiring of temporary drivers to fill a position, or policies regarding a driver’s absence from a position are, as the FHWA believes, issues that are appropriately the subject of labor-management negotiations and are not issues to be addressed in this rulemak-ing action”). Since there is no federal law addressing such, eligibility for unemployment benefits is governed by state law.

¶ 30. Southwood is thus correct that the federal drug testing regulations preempt Mississippi’s drug testing statute, Miss.Code Ann. §§ 77-7-1 to 71-7-33 (Rev.2000 & Supp.2002), and the circuit court erred in applying the state scheme. See Miss.Code Ann. § 71-7-29 (“This chapter shall not apply to any employer who is subject to federal law or federal regulations governing the administering of drug and alcohol tests to any of its employees or applicants for employment.”).

¶ 31. Miss.Code Ann. § 71-7-13(3) in the drug testing chapter states, “An employee discharged on the basis of a confirmed positive drug and alcohol test in accordance with this chapter shall be considered to have been discharged for willful misconduct.” This would certainly satisfy the Miss.Code Ann. § 71-5-513 A(l)(b) misconduct disqualification. However, Miss.Code Ann. § 71-7-13 does not apply to employees like Burton who are subject to federal testing regulations. This situation thus begs the question of what amounts to Section 71-5-513 A(l)(b) disqualifying misconduct when there is no applicable state statute establishing as much. We hold that if an employer wishes to disqualify an employee for unemployment benefits because of a positive result on a federally-regulated drug test, the employer must at least produce clear and convincing evidence that the testing comported fully with the federal regulations. Applying that standard to this record, we conclude that the evidence presented does not clearly and convincingly establish that Burton was informed of his right to request within 72 hours the testing of his split specimen. If an employer wishes to disqualify an employee for failing a federally-regulated drug test in which a split specimen was taken, it must produce clear and convincing evidence that the split specimen was reconfirmed positive or that the employee declined to discuss the result with the MRO. See 49 C.F.R. § 40.33(c). Doing so will satisfy the “misconduct” requirement of Miss.Code Ann. § 71-5-513 A(l)(b).

III. WHETHER THE CIRCUIT COURT ERRED AS A MATTER OF LAW IN APPLYING MISSISSIPPI DRUG TESTING LAWS TO SOUTHWOOD.

¶ 32. We agree with Southwood that the circuit court erred in applying Mississippi’s statutes governing the administration of drug tests. However, this error was harmless since we arrive at the same conclusion by applying federal law.

CONCLUSION

¶ 33. We hold that in order to establish a DOT-regulated employee’s ineligibility for state unemployment benefits because of a positive drug or alcohol test result, there must be clear and convincing evidence that the testing was conducted according to the federal guidelines. When, as in this case, no evidence was produced that Burton was informed of his right to request testing of the split specimen within 72 hours, misconduct for purposes of unemployment benefits was not established. As such, the Lauderdale County Circuit Court correctly reversed the Board of Review’s decision denying Raymond Burton unemployment benefits. The circuit court’s judgment is affirmed.

¶ 34. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR.

      . This is a broad, very general overview of the testing process, and the citations to the Code of Federal Regulations are to the 1999 regulations. The regulations have since been amended, converted to question-and-answer format, and renumbered.

      . Specifically, Section 40.87(b) states, "On an initial drug test, you must report a result below the cutoff concentration as negative. If the result is at or above the cutoff concentration, you must conduct a confirmation test.” (emphasis added). Burton apparently misapprehends the federal testing process by arguing repeatedly that he was terminated without there ever having been a confirmation test. Under the federal regulations, an employee is not notified as having a positive test result until and unless a confirmation test has been conducted.

      . Section 40.33(c) provides the following in pertinent part:
      (c) Positive test result.
      (1) Prior to making a final decision to verify a positive test result for an individual, the MRO shall give the individual an

        opportunity to discuss the test result with him or her.

      (2) The MRO shall contact the individual directly, on a confidential basis, to determine whether the employee wishes to discuss the test result. A staff person under the MRO’s supervision may make the initial contact, and a medically licensed or certified staff person may gather information from the employee. Except as provided in paragraph (c)(5) of this section, the MRO shall talk directly with the employee before verifying a test as positive. (emphasis added).

      . The MESC manual also incorporates the Wheeler rationale. "An employee shall not be found guilty of misconduct for the violation of a rule unless: (1) the employee knew or should have known of the rule; (2) the rule was lawful and reasonably related to the job environment and job performance; and (3) the rule is fairly and consistently enforced." MESC Administrative Manual, Part V, para. 1720 (emphasis added).

      . Southwood correctly argues in its brief that it is not subject to the state drug testing statute because it did not affirmatively elect to be covered. See Miss.Code Ann. § 71-7-27. However, being subject to federal regulation and not state statute does not affect our holding establishing what is required to prove misconduct for disqualification for benefits.


source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Francis Joseph LAURO v. Helen Rita LAURO.
    No. 2001-CA-00801-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.

      Dennis Leon Sharp, Mark A. Chinn, Jackson, Karen H. Spencer, James Emory Price, III, Corinth, attorneys for appellant.
    Terry L. Caves, Laurel, attorney for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. Francis Joseph Lauro (Frank) appeals from an adverse judgment of the Chancery Court of the Second Judicial District of Jones County which granted Helen Rita Lauro (Helen) a divorce on the ground of adultery. Helen was also granted primary physical and legal custody of their three minor children, permanent periodic alimony, child support and attorney’s fees. In addition to Frank’s appeal, Helen, on cross-appeal, also submits issues for this Court’s review.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Frank and Helen were married on May 1,1991, while Frank was still in medical school. During the early years of the marriage, Helen worked as a licensed practical nurse. During their marriage, three children were born: Christina born January 31, 1992; Phillip born November 15, 1994; and Isabella born October 3, 1998.

¶3. Helen filed for separate maintenance on April 23, 1999, after discovering Frank was romantically involved with another woman. In response to Helen’s motion, Frank filed a counter-complaint for divorce on May 12, 1999. On June 2, 2000, the chancellor granted Helen’s motion to file an amended complaint for divorce.

¶ 4. The matter was tried by the Chancery Court of the Second Judicial District of Jones County on June 14th and August 16th and 17th, 2000. The chancellor granted a divorce in favor of Helen on the ground of uncondoned adultery. The chancellor ordered the sale of the marital home and stipulated that the cost of the sale and the mortgage be paid in fall with the proceeds. Helen was awarded the equity from the sale of the home. Helen was also awarded primary physical and legal custody of the three minor children; child support in the amount of $600 per child for a total of $1,800 per month; $4,200 per month in periodic alimony; and, $19,391.95 for attorney’s fees.

¶ 5. Frank appeals this ruling and submits four issues for our review, and on cross-appeal, Helen submits three issues for our review. For the sake of clarity, the issues will be addressed in the following order.

DISCUSSION

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY NOT EQUITABLY DISTRIBUTING THE MARITAL ASSETS AND LIABILITIES.

¶ 6. Frank argues the chancellor erred in failing to make the required finding of facts and conclusions of law in his distribution of marital assets and liabilities and in failing to address all the marital assets that were subject to equitable distribution such as Helen’s IRA.

¶ 7. The chancellor ordered the parties to sell their marital home, directing the costs of the sale and the mortgage be paid out of the proceeds. The chancellor further directed Helen to receive one-half Qh) of the net sales proceeds, with the remaining one-half Qh) of the net sales proceeds to be tendered into the registry of the Court. Upon dividing the marital assets of the parties, the Chancellor stated:

The only marital asset Helen and Frank have is the money deposited into the registry of the Court from the sale of their home. Based upon Frank’s conduct and Helen’s financial and domestic contribution toward Frank’s career, the Court finds Helen should receive those funds and the Clerk is authorized to pay them over to her.

(emphasis added). The chancellor also recognized that Frank had significant debt for student loans, credit cards and unfulfilled contracts. The chancellor determined that Frank would be solely responsible for this debt.

¶ 8. This finding by the chancellor is not sufficient to meet the Ferguson standard:

Given the development of domestic relations law, this Court recognizes the need for guidelines to aid chancellors in their adjudication of marital property division. Therefore, this Court directs the chancery courts to evaluate the division of marital assets by the following guidelines and to support their decisions with findings of fact and conclusions of law for purposes of appellate review. Although this listing is not exclusive, this Court suggests the chancery courts consider the following guidelines, where applicable, when attempting to effect an equitable division of marital property:
1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). Failure to make findings of fact and conclusions of law as required by Ferguson is reversible error. See Johnson v. Johnson, 823 So.2d 1156, 1161 (Miss.2002).

¶ 9. In making an equitable distribution of the marital estate, the property should be classified as a marital or a non-marital asset. Id. See also Hemsley v. Hemsley, 639 So.2d 909, 914-15 (Miss.1994). Assets accumulated during the course of a marriage are subject to equitable division unless they are characterized as separate property. Johnson, 823 So.2d at 1161. “Mississippi courts ‘assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic, or otherwise are of equal value.’ ” Id. (quoting Hemsley, 639 So.2d at 915).

¶ 10. The chancellor failed to make specific findings as to how the marital property was classified and divided. Therefore, this case is reversed and remanded for clarification consistent with prior case law.

II. WHETHER THE TRIAL COURT’S AWARD OF ALIMONY IN CONJUNCTION WITH ITS AWARD OF CHILD SUPPORT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND SO EXCESSIVE THAT IT CONSTITUTES AN ABUSE OF DISCRETION.

¶ 11. Frank argues the chancellor abused his discretion in awarding alimony to Helen in an amount which was against the overwhelming weight of the evidence. Frank also argues the chancellor made limited findings of fact and no conclusions of law as to the Armstrong factors required by this Court. In Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993), we stated, inter alia:

The following factors are to be considered by the chancellor in arriving at findings and entering judgment for alimony:
1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or,
12. Any other factor deemed by the court to be ‘just and equitable’ in connection with the setting of spousal support.

618 So.2d at 1280-81. Frank contends the chancellor used the awards of alimony and child support to punish him for his adultery.

¶ 12. Upon remand, the chancellor must reconsider not only the issue of equitable distribution, but also the awards of alimony and child support after he has properly divided the marital assets.

¶ 13. Alimony is considered only after the marital property has been equitably divided and the chancellor determines one spouse has suffered a deficit.

Division of marital assets is now governed under the law as stated in Hemsley and Ferguson First, the character of the parties’ assets, i.e., marital or non-marital, must be determined pursuant to Hemsley. The marital property is then equitably divided, employing the Ferguson factors as guidelines, in light of each parties’ non-marital property. Ferguson, 639 So.2d at 928. If there are sufficient marital assets which, when equitably divided and considered with each spouse’s non-marital assets, will adequately provide for both parties, no more need be done. If the situation is such that an equitable division of marital property, considered with each party’s non-marital assets, leaves a deficit for one party, then alimony based on the value of non-marital assets should be considered.

Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994) (emphasis added). Like alimony, child support must be considered collectively with all property division.

All property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together. “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” LaRue [v. La-Rue], 172 W.Va. 158, 304 S.E.2d [312] at 334 [1983] (Neely, J., concurring).

Ferguson, 639 So.2d at 929. See also Hensarling v. Hensarling, 824 So.2d 583 (Miss.2002); Mace v. Mace, 818 So.2d 1130 (Miss.2002); Henderson v. Henderson, 703 So.2d 262 (Miss.1997).

¶ 14. In Mace, a case of first impression involving whether to include a medical practice as a marital asset, we held that the chancellor properly included the husband’s medical practice as a marital asset, but reversed the chancellor’s decision on the value placed on the medical practice. 818 So.2d at 1131. Upon remand of the case, we offered direction to the chancellor as follows:

The chancery court’s valuation of the practice is reversed, and this case is remanded for an adequate valuation of the practice. Also, the award of alimony is vacated, and the chancellor instructed to revisit the issue as alimony and equitable distribution should be considered together. Ferguson, 639 So.2d at 929 (stating that though alimony and equitable distribution are different concepts, they should be considered together, as when one expands, the other must recede.)

818 So.2d at 1134. This Court determined it was unclear from the record “whether [the medical practice] included the practice as a whole, including the medical equipment, or whether it was without physical assets.” Id. On remand, the chancellor was instructed to adequately determine the value of the medical practice, either through the testimony of the parties or through the testimony of expert witnesses. Id. As noted above, the chancellor was also instructed to revisit the award of alimony as alimony and equitable distribution are to be considered together. Id.

¶ 15. In Hensarling, this Court reversed the chancellor’s valuation of the marital estate and remanded the case with instructions to the chancellor to recompute the value of that award. 824 So.2d at 591-92. However, the chancellor’s award of rehabilitative alimony to the wife was affirmed. Id. Rehabilitative alimony is awarded to parties who have put their career on hold while taking care of the marital home. Rehabilitative alimony allows the party to get back into the working world in order to become self-sufficient. Therefore, rehabilitative alimony is not considered during equitable distribution.

“Rehabilitative periodic alimony” is an equitable mechanism which allows a party needing assistance to become self-supporting without becoming destitute in the interim. “Periodic alimony” is for an indefinite period vesting as it comes due and modifiable. “Rehabilitative periodic alimony” is modifiable as well, but is for a fixed period of time vesting as it accrues.
“Rehabilitative periodic alimony” is not intended as an equalizer between the parties but is for the purpose of allowing the less able party to start anew without being destitute in the interim. In comparison, lump sum alimony is intended as an equalizer between the parties to serve equity amongst them completely once and for all.

Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). In the case sub judice, Helen was granted permanent periodic alimony; therefore, case law mandates that her award of alimony be considered together with the equitable distribution of the marital property.

¶ 16. In Henderson, this Court reversed and remanded on all economic issues after determining the chancellor erred in failing to consider together the equitable distribution of the marital assets, the award of periodic alimony and the award of child support. 703 So.2d at 263. This Court affirmed the granting of the divorce but held:

We find that in determining marital assets, distribution of marital assets, and child support, the parties and the Court are entitled to more than generalities. The parties are entitled to specific findings as to property acquisition, division thereof, and contrary specific findings as to child support.

Id. at 264. Because the chancellor divided the marital property without explanation and failed to consider the effect commingling had on certain property, this Court held it was impossible to affirm the chancellor’s awards of alimony and child support. Id. at 265-66.

¶ 17. Upon remand, the chancellor is instructed to revisit the awards of alimony and child support after he has properly classified and divided the marital assets. Also, the chancellor must be mindful that although fault is a proper consideration for awarding periodic alimony, Armstrong, 618 So.2d at 1280, “[a]limony is not a punishment and. should not be so used.” Tilley v. Tilley, 610 So.2d 348, 354 (Miss.1992).

III. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING HELEN ATTORNEY’S FEES.

¶ 18. Because we have reversed this case so that the chancellor may revisit equitable distribution of the marital assets, it will be necessary for the chancellor to reconsider the award of attorney’s fees to Helen. Equitable distribution is the first step in all divorce matters; therefore, in addition to the awards of alimony and child support, this case is remanded so that the chancellor may revisit the award of attorney’s fees, if necessary, after he has properly divided the marital property and awarded child support and alimony.

IV. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN AWARDING HELEN PRIMARY LEGAL CUSTODY OF THE THREE MINOR CHILDREN.

¶ 19. Frank argues that the chancellor committed error in awarding primary legal custody to Helen. Frank and Helen agree that at the trial they stipulated that they would share joint legal custody and the chancellor accepted the stipulation. Helen concedes, through counsel, that due to a scrivener’s error, the final judgment submitted to and signed by the chancellor was inconsistent with the stipulation, through no fault of the chancellor, in that the judgment erroneously awarded Helen “primary physical and legal custody” of the children instead of an award of primary physical custody to Helen with joint legal custody to both Helen and Frank. Inasmuch as Frank and Helen previously agreed to joint legal custody of the three minor children, we reverse and remand this issue to allow the chancellor to correct the terms of custody consistent with this opinion and the prior stipulation of the parties.

Y. WHETHER FRANK SHOULD BE ORDERED TO PAY MEDICAL AND DENTAL INSURANCE PREMIUMS FOR HELEN AND THE CHILDREN AND TO PAY ALL MEDICAL AND DENTAL EXPENSES NOT COVERED BY THE INSURANCE.

¶ 20. Helen’s prayer for relief in her amended complaint for divorce contained a request that Frank maintain a medical insurance policy for Helen and the three minor children and that Frank be responsible for all hospital, doctor, dental, drug and optical expenses not covered by insurance. Furthermore, during Helen’s testimony she asserted that she wanted the court to order Frank to continue carrying health insurance on the children and all other medical expenses not covered by the insurance. The chancellor’s opinion and judgment are devoid of any evidence that he considered this issue. Therefore, this Court remands the issue of medical insurance for consideration by the chancellor.

VI. WHETHER FRANK SHOULD BE ORDERED TO PAY ATTORNEYS’ FEES INCURRED BY HELEN TO DEFEND THIS APPEAL.

¶ 21. Helen requests that this Court order Frank to pay her attorney’s fees for defending this appeal. In addressing Issue III concerning the award of attorney’s fees to Helen at the trial level, we found that upon remand, the chancellor, in revisiting the issue of equitable distribution of the marital assets, would necessarily have to reconsider the award of attorney’s fees to Helen. However, in asserting entitlement to attorney’s fees incurred on appeal, we find from Helen only these bare statements contained in her brief on cross-appeal: “Helen requests this Court to order Frank to pay her attorney’s fees for defending this appeal ... Because of Frank’s appeal of this case, Helen has incurred attorney’s fees and expenses on appeal. Helen requests this Court to order Frank to pay her attorney’s fees and expenses on appeal ... Frank should pay Helen’s attorney’s fees incurred in defending his appeal of this case.” That’s it. Helen has failed to cite any legal authority which supports her entitlement to attorney’s fees for defending this appeal. Failure to cite any authority in support of an assignment of error precludes this Court from cqnsidering the issue on appeal. Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). In Grey, Mrs. Grey had assigned as error, inter alia, the chancellor’s (1) finding that she had failed to establish the existence of a substantial asset; (2) division of the parties’ marital assets concerning their business; and, (3) division of the parties’ non-business marital assets. In addressing these assignments of error, we stated:

[Mrs. Grey’s] failure to cite any authority in support of the first three assignments of error precludes this Court from considering these issues on appeal. Matter of Estate of Mason v. Fort, 616 So.2d 322, 327 (Miss.1993), citing R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990); Kelly v. State, 553 So.2d 517, 521 (Miss.1989), citing Brown v. State, 534 So.2d 1019, 1023 (Miss.1988), cert. denied, 490 U.S. 1007, 109 S.Ct. 1643, 104 L.Ed.2d 158 (1989), Shive v. State, 507 So.2d 898 (Miss.1987), and Pate v. State, 419 So.2d 1324 (Miss.1982). See also Turner v. Turner, 612 So.2d 1141, 1143 (Miss.1993).

638 So.2d at 491. Since we have previously held in Grey that issues such as the trial court’s division of marital assets will not be considered on appeal when a party fails to cite authority in support of the issues, we certainly see no reason here to consider Helen’s request for attorneys fees incurred on appeal inasmuch as she has chosen to cite no authority in support of this issue. Therefore, this issue is without merit.

VII. WHETHER HELEN SHOULD BE AWARDED PENALTIES IN THE AMOUNT OF 15 PERCENT OF THE JUDGMENT ENTERED BY THE LOWER COURT PLUS INTEREST.

¶ 22. Helen requests that this Court assess a penalty plus interest on the judgment. Miss. Code Ann. § 11-3-23 (Rev.2002) provides in pertinent part: “In ease the judgment or decree of the court below is affirmed, or the appellant fails to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%), as follows”: (1) the decree or judgment appealed from must have been final; (2) the decree or judgment must have been affirmed unconditionally; and (3) the only matter complained of must have been the decree or some particular property or claim on it. See Greenlee v. Mitchell, 607 So.2d 97, 112 (Miss.1992). “When the statutory requisites are met, the imposition of the statutory penalty for damages is mandatory.” Old Sec. C as. Ins. Co. v. Clemmer, 458 So.2d 732, 733 (Miss.1984). Statutory penalties apply only to an unconditional affir-mance. See Benson v. Benson, 749 So.2d 75, 76 (Miss.1999). Because this Court orders that this matter be reversed and remanded for consideration of the issue of marital distribution, the prerequisite that the matter be unconditionally affirmed fails. Therefore, § 11-3-23 does not apply, and Helen is not entitled to a statutory penalty.

CONCLUSION

¶23. Because the chancellor erred in failing to make specific findings of fact and conclusions of law as to how the marital property was classified and divided, this case is reversed and remanded for proper clarification. Equitable distribution is the first step in a divorce matter; therefore, upon remand the chancellor must revisit his awards of alimony and child support. Also upon remand, after the marital assets have been properly divided and alimony and child support properly awarded, the chancellor may revisit his award of attorney’s fees to Helen in the event of any modifications in the division of the marital assets and awards of alimony and child support. Although Helen’s amended complaint requested medical insurance for herself and her children, the chancellor failed to address this issue in his final judgment. Upon remand, the issue of medical insurance must be considered by the chancellor. In all other respects, the judgment below is affirmed.

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

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . This Court acknowledges Miss.Code Ann. § 11-3-23 was repealed by House Bill 19, 2002 Miss. Laws 3rd Ex.Sess. Ch. 4 (H.B. 19) which is effective "from and after January 1, 2003, and shall apply to all causes of action filed on or after that date.” However, we need not address the applicability of H.B. 19 as we are reversing and remanding the instant case.


author: DIAZ, Justice,

text:
    In the Matter of the ESTATE OF George FITZNER, Deceased. OLiver L. Phillips v. Julie Fitzner Jurotich, Administratrix, C.T.A.
    No. 2002-CA-00293-SCT.
    Supreme Court of Mississippi.
    June 5, 2003.

      David L. Sanders and Jeffrey Johnson Turnage, Columbus, attorneys for appellant.
    James W. Craig, Jackson, and J. Randolph Lipscomb, Columbus, attorneys for appellee.
   DIAZ, Justice,

for the Court.

¶ 1. The Chancery Court of Lowndes County, Mississippi, denied the claim of Oliver L. Phillips (Phillips) against the Estate of George Fitzner (the Estate), deceased. Phillips, without obtaining a stay in the proceedings, appealed the denial of his claim to this Court which affirmed. In re Estate of Fitzner, — So.2d -, 2003 WL 152377 (Miss.2003) (Fitzner I). Prior to our mandate in that appeal, the chancellor granted, over Phillips’s objection, the estate’s petition to sell estate assets.

¶ 2. Phillips’s present appeal raises several issues all related to the general question of whether the sale of estate assets should be stayed pending the appeal of a putative creditor whose claim against the estate has been denied by the chancellor. They are as follows:

I. Whether Phillips, who had a validly probated claim for over $1,500,000.00 had standing to be heard on the estate’s petition to sell assets of the estate.
II. Whether a creditor with a claim against an estate is entitled to be served with notice of a petition to sell property of an estate.
III. Whether a creditor with a claim that was disallowed, but who has perfected an appeal of the disal-lowance, must file a supersedeas bond in order to receive notice from the estate upon a petition by the estate to sell estate property.
IY. Whether the administratrix of an estate may sell estate property so as to favor family members to the prejudice of a creditor with a disallowed claim even though the creditor has perfected an appeal.
V. Whether a sale of estate property is void where the estate did not serve a creditor of the estate with a perfected appeal from a disallowed claim.

FACTS

¶ 3. In 1995, Oliver L. Phillips and George E. Fitzner formed a Mississippi limited partnership, Plantation Pointe, L.P., to operate a retirement home in Columbus, Mississippi. Each owned fifty percent of the partnership, and each made equal contributions to the business until 1996, when Phillips’s contributions began to exceed those made by Fitzner. According to Phillips, Fitzner, who was having cash flow problems, orally promised to repay Phillips fifty percent of his contributions plus interest. As the unequal contribution pattern continued, however, Phillips became concerned. He repeatedly asked Fitzner to reduce the promise to pay to writing, but Fitzner always put him off, saying that he promised to pay Phillips back with interest. In 1997, Phillips produced, and Fitzner signed, a memorandum agreement, which provided as follows:

These parties are the principal partners in Plantation Pointe, L.P. (the “Business”) and desire to reduce their understanding with respect to financial advances to writing. The Business has considerable expenses and has néeded and continues to need infusions of cash. Phillips has been and is in a position to inject cash into the business to a greater extent than Fitzner is able and willing to do. It is agreed that all cash advances made by Phillips to the business in excess of equal advances made by Fitzner shall accrue interest from the date of each such advance at the rate of one and one-half per cent (1]6%) above New York prime, compounded monthly. In the event of the sale of all or a part of the business or the ability of the business to pay out income to its partners, Phillips will be repaid his disproportionate advances together with all such accrued interest prior to any other disbursements from the business to any partner.

¶ 4. Plantation Pointe’s tax returns show that Phillips’s ownership percentage in Plantation Pointe gradually rose from 50% in 1995 to 92.67% in 1999. Plantation Pointe’s books credited every dollar Phillips contributed as a credit to Phillips’s capital account.

¶ 5. Fitzner died in 1999, and estate proceedings were begun. Phillips probated a claim in the amount of $1,527.882.31 against the Estate based on the written memorandum agreement. The Estate filed a motion to disallow Phillips’s claim, which the chancellor granted, finding, in effect, that Phillips’s claim was against Plantation Pointe, not the Estate:

The [memorandum] agreement is not ambiguous. No evidentiary hearing is necessary to take parol evidence in order to interpret the agreement. The agreement between Phillips and Fitzner says that they “desire to reduce their understanding with respect to financial advances to writing.” Therefore there is no need nor right to vary or add to the written agreement as the parties intended the written agreement to be complete and whole, the integration of their agreement to writing.

¶ 6. The chancellor allowed Phillips to amend to add a claim that there was an oral contract between Phillips and Fitzner pertaining to the cash advances. The chancellor held:

[A] claim is sufficient if it indicates the nature and extent of the claim, and it may be amended if the amendment does not substantially change the original claim or introduce a new or different claim.... The written agreement does not establish an enforceable claim against the estate, and it may not be supplemented by oral agreements. The written agreement however may be modified by a subsequent oral agreement unless prohibited by the statute of frauds.

The amended claim filed by Phillips stated as follows:

To the extent the written agreement Dated December 15, 1997 was an attempt to reduce their agreement to writing, Fitzner and Phillips had a separate oral agreement that was never reduced to writing. Alternatively, Fitzner and Phillips orally modified their agreement of December 15, 1997 when Fitzner on many occasions orally promised Phillips if Phillips would infuse more of his personal cash into the business, Fitzner would personally repay Phillips for all unequal cash advances ever made by Phillips to the business with interest compounded monthly at a rate of Vk percent above New York prime.

The chancellor ruled that Phillips failed to prove by clear and convincing evidence that an oral contract was ever made between Phillips and Fitzner. Phillips appealed.

¶ 7. Prior to the proceeding during which Phillips’s claim was disallowed, the estate filed another petition to sell the dealership. Phillips’s attorneys were notified of that petition. The estate alleged in that petition that Fitzner Pontiac, Inc., had a claim against the estate for over $1.2 million dollars, but that the decedent’s son, Arthur Fitzner (Arthur), would cause the claim to be dismissed if the dealership were sold to him for $1.6 million. Phillips objected to the sale and presented an affidavit of another prospective buyer of the dealership who Phillips alleged would pay more than Arthur. Phillips moved to disallow the claim of Fitzner Pontiac due to the absence of a filing of any document tending to prove the alleged $1.2 million debt. Fitzner Pontiac, through the same attorney who represents the estate, voluntarily withdrew the claim.

¶ 8. After the chancellor denied Phillips’s claim (and prior to this Court’s mandate in Fitzner I), Jurotich, as administratrix, filed a second petition to sell intangibles and again alleged that Fitzner Pontiac had a claim for $1.2 million and alleged that said debt was due and owing from the decedent to Fitzner Pontiac. The estate also alleged that the estate had a liability to Fitzner Pontiac in the amount of $1.2 million which said liability was due and owing.

¶ 9. Regarding the proposed sale of Fitz-ner Pontiac to Arthur in exchange for Arthur’s forgiveness of the alleged $1.2 million debt allegedly owed Fitzner Pontiac by the estate, the petition alleged that, “the forgiveness of this debt materially increases the value of the offer from Arthur R. Fitzner, not only to the other creditors, but to the beneficiaries under the will of George E. Fitzner.”

¶ 10. Phillips was not listed as a creditor of the estate and received no notice of the petition. The chancellor approved the estate’s petition to sell the dealership. However, prior to the sale, Phillips learned of the proceeding and filed an emergency motion to set aside the order and to require the administratrix to post a fidelity bond. Following a hearing on the motion, the chancellor overruled Phillips’s motion. It is from this order that Phillips’s present appeal arises.

ANALYSIS

¶ 11. Since the filing of the present appeal, the chancellor’s denial of Phillips’s claim against the estate has been affirmed by this Court in Fitzner I. Since this Court has adjudicated that Phillips has no claim, no purpose would be served by reviewing the issues raised in the present appeal. Therefore, Phillips’s present appeal, which by necessity relies upon the validity of Phillips’s invalid claims against the estate, is dismissed as moot.

CONCLUSION

¶ 12. For these reasons, this appeal is dismissed as moot.

¶ 13. DISMISSED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Chancellor Robert L. Lancaster ruled on all matters until he recused himself just before the evidentiary hearing on the motion to disallow Phillips’s claim. At that point, the case was assigned to Chancellor Dorothy Winston Colom.

      . The preceding facts were copied verbatim from this Court’ earlier opinion in Fitzner I.


text:
    Andrew HENDERSON, a Minor, by and Through his Next Friend and Guardian, Walter HENDERSON and Walter Henderson, Individually v. SIMPSON COUNTY PUBLIC SCHOOL DISTRICT.
    No. 2001-CA-00363-SCT.
    Supreme Court of Mississippi.
    June 12, 2003.
    Derek L. Hall, Jackson, for appellants.
    Kenneth S. Womack, for appellee.
   WALLER, Justice,

for the Court:

¶ 1. In this action for damages under the Mississippi Tort Claims Act, Andrew Henderson, a minor, and his natural guardian, Walter Henderson, appeal from the Circuit Court of Simpson County’s grant of summary judgment in favor of the Simpson County Public School District. While attending school, Andrew Henderson was injured when he was taunted and assaulted by another student in the presence of their teacher. The circuit court found that the School District fulfilled its duty to use ordinary care and to take reasonable steps to minimize foreseeable risks to students, thereby providing a safe school environment, and was not liable for Henderson’s injuries. We reverse and remand, finding that questions of material fact as to foreseeability exist and summary judgment was therefore improper.

FACTS

¶2. Henderson was an eleven-year-old honor student at Mendenhall Junior High School on November 4, 1997. While sitting at his assigned desk, he was assisting Nicole Gardner, another student, during math class. Nearby, a teacher was helping another student. Another student, Emmanuel Price, began loudly taunting and bothering Gardner and Henderson from across the room. Henderson asked Price to leave Gardner and him alone. Price walked over to Henderson’s desk and made threatening gestures such as drawing his fist back several times as if to hit Henderson. After Price made threatening gestures for at least a minute, he struck Henderson. The punch was so hard that Henderson and the desk toppled to the floor. Henderson sustained a fractured tooth, a concussion, and a fracture to the inferior orbit beneath his right eye. As a result of the injuries, Henderson experienced double vision that required surgery and sustained medical bills in the amount of $8,270.48. Henderson sued the School District, alleging that Simpson County was negligent and was strictly liable for his injuries because it failed to use “ordinary care” in controlling, disciplining students and providing a safe environment for students.

DISCUSSION

WHETHER SUMMARY JUDGMENT WAS APPROPRIATE.

¶ 3. “[Pjublic schools have the responsibility to use ordinary care and to take reasonable steps to minimize foreseeable risks to students thereby providing a safe school environment.” L.W. v. McComb Separate Mun. Sch. Dist., 754 So.2d 1186, 1143 (Miss.1999). “[Tjhere is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred is not reasonably foreseeable.” Levandoski v. Jackson County Sch. Dist., 328 So.2d 339, 342 (Miss.1976).

¶ 4. The circuit court granted summary judgment based on its finding that there was no issue of material fact regarding foreseeability. Supporting this finding are the facts that there is no evidence that any School District employees had any knowledge that Price had violent propensities or that Price had ever behaved in this manner in the past.

¶5. Notwithstanding these facts, we find that several questions of material fact exist and that summary judgment was improper. According to Henderson, Price’s taunts could be heard across the classroom. Price walked to Henderson’s desk and made threatening gestures for approximately one minute before he struck Henderson. All of this occurred while a teacher was standing within five feet of Henderson. Even if, for argument’s sake, the teacher did not have a responsibility to stop the taunting, there is still an issue of fact as to whether the teacher had adequate time and, indeed, a duty, to intervene in the situation while Price was standing over Henderson brandishing his fist for at least one minute.

¶ 6. The teacher’s action or inaction bears on the question of ordinary care by the teacher in supervising her class and her awareness of what was transpiring. In a case in which a student was sexually assaulted by a fellow student and the trial court dismissed the student’s action for failing to state a claim, we reversed and remanded, holding that:

The teachers and administrators here are then protected by sovereign immunity if and only if they used ordinary care in controlling and disciplining their students. The issue of ordinary care is a fact question. The trial court, confronted with all relevant facts, should then under our law, decide whether or not those responsible used ordinary care as required by the statute. If the trial judge concludes that they failed, neither they nor the school are immune from liability.

L.W., 754 So.2d at 1142 (emphasis added).

¶ 7. While it may be true that no one involved had any knowledge of any violent propensities by Price, the factual circumstances surrounding the incident, namely, the loud taunting and the threatening gestures preceding the assault, bear on the question of the level of care exercised by the teacher in supervising her class at the time. These issues can be properly resolved only after a trial.

CONCLUSION

¶ 8. Given the unresolved factual questions present in this case and the principle that ordinary care is a question of fact, we find that the circuit court erroneously granted the Simpson County School District’s motion for summary judgment. The circuit court’s judgment is reversed, and this case is remanded for a bench trial.

¶ 9. REVERSED AND REMANDED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., DIAZ, EASLEY AND CARLSON, JJ., CONCUR. COBB AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . Jack McAlpin, in his official capacity as Superintendent of the Simpson County School District, was dismissed and is not a parly to this appeal.

      . For general treatments of the liability or immunity of school districts for acts of students, see Allan E. Korpela, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Injuries Caused by Acts of Fellow Students, 36 A.L.R.3d 330, 1971 WL 28648 (1971 & Supp.2002); Allan E. Korpela, Annotation, Tort Liability of Public Schools and Institutions of Higher Learning for Injuries Resulting from Lack or Insufficiency of Supervision, 38 A.L.R.3d 830, 1971 WL 28514 (1971 & Supp.2002).


text:
    STATE of Mississippi v. Lash Deon ROGERS.
    No. 2002-CA-00590-SCT.
    Supreme Court of Mississippi.
    June 12, 2003.

      G. Gilmore Martin, Vicksburg, attorney for appellant.
    Kevin Jerome Payne, attorney for appel-lee.
    Before McRAE, P.J., DIAZ and Carlson, JJ.
   DIAZ, Justice,

for the Court.

¶ 1. On March 18, 2002, a jury found Lash Deon Rogers not guilty of the sale of cocaine. At the trial, the State presented the testimony of Jeff Crevitt, a Warren County Sheriffs deputy specializing in narcotics investigations, Randy Lewis, another Sheriffs deputy, Jason Finch, a former Warren County Jailer and eyewitness to the alleged crime, Pete Deckard, a confidential informant, and Sharon Patton, Mississippi Crime Lab employee. Rogers and his brother, Lamont Rogers, testified in defense that no illegal transaction took place.

¶ 2. In jury selection, the court overruled a Batson objection by the State against Rogers for the exclusion of persons of the majority Caucasian race by use of defense peremptory challenges.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING INSTRUCTION D-4.

¶3. Furthermore, in considering jury instructions, the court granted instruction D-4 over the objections of the State. The instruction was objected to by the State as being a two-theory instruction only to be used in circumstantial evidence cases.

¶ 4. Following the jury’s acquittal of Rogers, the State appeals pursuant to Miss.Code Ann. § 99-35-103(b) (Rev. 2000) and asks this Court to determine:

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE STATE’S BATSON OBJECTION TO THE EXERCISE OF THE PEREMPTORY CHALLENGES BY THE DEFENDANT.

¶ 5. Our opinion does not affect Rogers in this particular case.

FACTS

¶ 6. On July 27, 2000, members of the Warren County Sheriffs Office conducted an undercover buy of cocaine from Lash Deon Rogers (Rogers). The confidential informant, Pete Deckard (Deckard), was accompanied by undercover Warren County Jailer Jason Finch (Finch).

¶ 7. Deckard and Finch went to a house occupied by Rogers located on Pearl Street in Vicksburg, Mississippi. Using $40.00 in officially issued funds, Deckard allegedly bought two rocks of cocaine from Rogers. This was witnessed by Finch. The transaction was monitored by Crevitt over the body wire worn by Deckard.

¶ 8. After the alleged sale had been completed, Officer Crevitt stopped Rogers driving away from the area in a brown Nissan automobile. Rogers stated that “he did not sell cocaine to that jailer.” The official buy money was not recovered from Rogers or his automobile.

¶ 9. A Warren County Jury was selected on March 12, 2002 to hear the case. Voir dire was conducted by the court, the State, and Roger’s attorney. All parties retired to chambers to select the jury. After the State used its six peremptory challenges a panel of twelve was tendered to Rogers. Rogers made a Batson objection. The court found that the jury panel as tendered to Rogers was composed of seven African Americans and five Caucasians. The court ruled that a prima facie case had been made by Rogers and required the State to give race neutral reasons for the six peremptory challenges. The court sustained the Batson objection as to juror 49, Brenda Johnson, an African American female and juror 4, Pamela Dotson, also an African American female.

¶ 10. Rogers then reviewed the tendered panel of twelve and exercised two peremptory challenges against two Caucasian female jurors. These jurors were juror 20, Longmire, and juror 44, Farrar. The State made a Batson objection. The court after discussion refused to recognize the Batson objection by the State as to race, further finding no prima facie case as to sex.

¶ 11. The selection of the jury continued with Rogers using peremptory challenges against juror 52, Kleinman and juror 60, McCaskill, both Caucasian. The State renewed the Batson objection based upon race of the persons challenged by the defendant. Again the court ruled that the State’s Batson objection was without legal precedent and was overruled. Of the seven Caucasian veniremen tendered to Rogers, four were excused by Rogers. All peremptory challenges exercised by Rogers were used against Caucasians.

¶ 12. After the testimony of all witnesses, the trial judge and the parties retired to chambers to consider jury instructions. One of the instructions tendered by the defendant was D-4. The State objected to the instruction stating that it was in essence a “two theory” instruction only used in circumstantial evidence cases. The court granted the instruction over the objection of the State.

DISCUSSION

¶ 13. For questions of law, our standard of review is de novo. Smith v. Dorsey, 599 So.2d 529, 533 (Miss.1992). Thus, we sit in the same position as did the trial court. Franklin v. Franklin ex rel. Phillips, — So.2d -, -, 2003 WL 327708, *3 (Miss.2003). On appeal, we will not disturb a circuit court’s findings of fact unless those findings are manifestly wrong or clearly erroneous.

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE STATE’S BATSON OBJECTION TO THE EXERCISE OF THE PEREMPTORY CHALLENGES BY THE DEFENDANT.

¶ 14. The State argues that the trial court incorrectly overruled its Batson objection and did not afford it an opportunity to provide authority to support a Batson objection. The State raised a Batson motion when Rogers exercised four (4) peremptory challenges excluding four Caucasian jurors. All of Rogers’s peremptory challenges were made against Caucasian jurors, and out of the seven total Caucasians on the jury venire, four were challenged by Rogers.

¶ 15. Rogers contends that, although the State’s assertion that Batson has been expanded by the Supreme Court to the use of peremptory challenges by the defendant is correct, the State did not meet the requirement of a prima facie case of race discrimination which would then have shifted the burden of providing a race-neutral explanation for the challenge to Rogers.

¶ 16. “Where the State has challenged a defendant’s peremptory strikes on the basis of race, regardless of whether the struck jurors were black or white, the court should use the same Batson analysis.” McFarland v. State, 707 So.2d 166, 171 (Miss.1997). While Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), has predominately been a tool to deter discrimination against African Americans or other minorities, this is not the purpose of the ruling. The purpose is to afford a fair and impartial trial to defendants regardless of their race. The trial court should have allowed the State to make a Batson objection and gone forward with the analysis of whether the Batson objection was warranted.

¶ 17. Batson requires that when prosecutors exercise peremptory challenges against members of a distinct racial group, the State must articulate racially neutral reasons for doing so. The United States Supreme Court held in Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), that Batson applies to both prosecutors and defendants. This Court has stated:

Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same — in all cases, the juror is subjected to open and public racial discrimination .... We therefore reaffirm today that the exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party.

Griffin v. State, 610 So.2d 354, 356 (Miss.1992).

¶ 18. This clearly establishes the right of the State to make a Batson objection. Once this is done, the objection should then be analyzed according to Batson. McFarland v. State, 707 So.2d 166, 171 (Miss.1997), states this procedure with ample clarity.

Under Batson, the party objecting to the peremptory challenge must first make a prima facie showing that race was the criteria for the exercise of the peremptory strike. 476 U.S. at 96-97, 106 S.Ct. at 1723; Stewart v. State, 662 So.2d 552, 557 (Miss.1995,). The burden then shifts to the party exercising the challenge to offer a race-neutral explanation for striking the potential juror. Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24; Stewart, 662 So.2d at 558. Finally, the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory. Batson, 476 U.S. at 98, 106 S.Ct. at 1724; Stewart, 662 So.2d at 558.

¶ 19. In light of these authorities, we conclude that the trial court erred in not allowing the Batson objection to be presented by the State.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING INSTRUCTION D-4.

¶ 20. Along with others, instruction D-4 was given to the jury over the objection of the State. Instruction D-4 reads as follows:

In arriving at your verdict in this case you must not indulge in suspicion, speculation, conjecture or guesswork. You can only act upon the testimony and evidence introduced before you upon the witness stand. Where there is a controverted issue of material fact, and the testimony and evidence fails to show beyond a reasonable doubt that the State’s contention in regard to that issue of material fact is true, then you must find that fact in favor of Lash Deon Rogers.

¶ 21. The State contends that this instruction is equivalent to the two-theory instruction commonly given in a circumstantial evidence ease and that this particular case was not a circumstantial evidence case. The two-theory instruction commonly given in circumstantial evidence cases states:

The Court instructs the jury that if there may be a fact or circumstance in this cause susceptible of two interpretations, one favorable and the other unfavorable to [Defendant], when the jury has considered such fact or circumstance with all other evidence, there is a reasonable doubt as to the correct interpretation, then you, the jury, must resolve such doubt in favor of [Defendant], and place upon such fact or circumstance the interpretation most favorable to [Defendant].

Parker v. State, 606 So.2d 1132, 1140 (Miss.1992). This instruction is the so-called “two-theory instruction” which we have said should be granted only in a case based entirely upon circumstantial evidence. Kitchens v. State, 300 So.2d 922, 926 (Miss.1974) (citing Coward v. State, 223 Miss. 538, 78 So.2d 605 (1955)). It is only in entirely circumstantial evidence cases that such an instruction is required. Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988); Boches v. State, 506 So.2d 254, 260 (Miss.1987); Clark v. State, 503 So.2d 277, 278-79 (Miss.1987); Keys v. State, 478 So.2d 266, 267 (Miss.1985); Henderson v. State, 453 So.2d 708, 709-10 (Miss.1984); Johnson v. State, 347 So.2d 358, 360 (Miss.1977).

¶ 22. Keys v. State, 478 So.2d 266, 268 (Miss.1985) discusses the difference between circumstantial and direct evidence, as follows:

What is “circumstantial evidence”? The least inadequate definition we can provide is that circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist. Conversely, eye witness testimony is thought of as direct evidence.

A circumstantial evidence case (for the purposes of granting a “two-theory” instruction) is one in which there is neither an eyewitness nor a confession to the crime. Mangum v. State, 762 So.2d 337, 344 (Miss.2000) (citing Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992)). See also Randolph v. State, — So.2d -, -, 2002 WL 31619070, *17 (Miss.2002) (Carlson, J., concurring).

¶ 23. Here, two witnesses for the State stated that they saw the drug sale. Two witnesses for Rogers claimed it did not happen. Thus, the case at hand is clearly based on direct, not circumstantial, evidence; and therefore, the two-theory instruction should not be given.

¶ 24. This presents the question of whether the instruction given is equivalent to the two-theory instruction. The State goes to great lengths to compare the two instructions and establish their semblance. The State points out that D-4 says “controverted issue of material fact” and the two-theory instruction says “fact or circumstance ... susceptible of two interpretations.” D-4 goes on to say where “evidence fails to show beyond a reasonable doubt that the State’s contention in regard to that issue of material fact is true” while the two theory instruction says where “there is a reasonable doubt as to the correct interpretation.” D-4 states “you [the jury] must find that fact in favor of [defendant].” The two-theory instruction says “you, the jury, must resolve such doubt in favor of [defendant] and place upon such fact or circumstance the interpretation most favorable to [defendant].”

¶25. In contrast, Rogers argues that the two instructions do appear to be alike, but the D-4 instruction fails to include the last sentence which states, “to the exclusion of every reasonable hypothesis consistent with innocence,” and is therefore not an instruction of circumstantial evidence at all. This argument is flawed. The point that Rogers overlooks is that the sentence he argues was left out and therefore precludes any error by the trial court is no part of a two-theory instruction. In Montgomery v. State, 515 So.2d 845, 849 (Miss.1987), we stated that “[i]n the ordinary criminal prosecution, the State must prove each element of the offense beyond a reasonable doubt. In circumstantial evidence cases, however, we say that the State must prove the defendant guilty beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence.” Jones v. State, 797 So.2d 922, 928-29 (Miss.2001), clarifies this point by stating “the trial court in this case did grant the typical circumstantial evidence instruction. However, in addition to giving instruction on circumstantial evidence, the trial court must grant a “two-theory” instruction.... ”

¶ 26. Rogers’s argument focuses on D 4’s failure to include all the elements of a circumstantial evidence instruction. However, this is not what the State is asserting. The State asserts that D-4 is identical to a two-theory instruction also given in circumstantial evidence cases, a totally separate instruction from the circumstantial evidence instruction. Although two separate instructions, the rules for when they are appropriately given apply to both. This Court has held that the circumstantial evidence instruction has no place in direct evidence cases. The instruction should not be given where guilt does not rest entirely on circumstantial evidence, Montgomery v. State, 515 So.2d 845, 850 (Miss.1987); Harmon v. State, 453 So.2d 710, 712 (Miss.1984); Bullock v. State, 391 So.2d 601, 606 (Miss.1980); Weathers v. State, 237 So.2d 441, 443 (Miss.1970); Coward v. State, 223 Miss. 538, 78 So.2d 605, 610 (1955); Yarbrough v. State, 202 Miss. 820, 32 So.2d 436, 440 (1947).

¶ 27. In light of these facts and authorities, we conclude that the instruction given was equivalent to a two-theory instruction and, therefore, should not have been given in this case since it was a direct evidence case.

CONCLUSION

¶ 28. The trial court erred by not allowing the State make a Batson objection based on discriminatory peremptory challenges. A Batson objection is the same regardless of the race of the challenged juror. Additionally, since this case was based on direct evidence, the trial court further erred when it presented the jury with Instruction D-4, an instruction which is used only for circumstantial evidence cases.

¶ 29. Under Miss.Code Ann. § 99-35-103(b), the judgment of acquittal cannot be reversed, but this Court decides the questions presented for the future guide of the courts and other interested persons when the same questions shall arise again. The State is taxed with the costs of the appeal. State v. Heard, 246 Miss. 774, 787, 151 So.2d 417, 423 (1963).

¶ 30. PRESENTED QUESTIONS ANSWERED.

PITTMAN, C.J., McRAE and SMITH, P.JJ., WALLER, COBB, EASLEY and CARLSON, JJ., CONCUR. GRAVES, J., SPECIALLY CONCURS WITHOUT SEPARATE WRITTEN OPINION.

      . Miss.Code Ann. § 99-35-103(b) states in pertinent part:
      The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases:
      Go) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall nevertheless decide the question of law presented.

      . It is the law in this State that, where the evidence for the prosecution is wholly circumstantial in nature, the accused is entitled upon request to have the jury instructed that, before they may convict, they must find that each element of the offense has been established beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Billiot v. State, 454 So.2d 445, 461-62 (Miss.1984). "A correct statement is that the instruction must be given only where the prosecution is without a confession and wholly without eyewitnesses to the gravamen of the offense charged.” Keys v. State, 478 So.2d 266, 267 (Miss.1985).


author: BRANTLEY, J.,

text:
    Luther Edward CARR, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01530-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2002.
    Rehearing Denied June 18, 2002.
    Certiorari Denied Oct. 3, 2002.

      James A. Williams, Meridian, Attorney for Appellant.
    Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.
    Before McMILLIN, C.J., BRIDGES, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the Court.

¶ 1. In the Circuit Court of Lauderdale County, Luther Carr was convicted of sale of cocaine. Carr appeals his conviction arguing that the court improperly allowed a jury instruction, denied a motion for mistrial because of prejudicial statements, and denied a motion for a new trial because the weight and sufficiency of the evidence did not support the verdict. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the evening of November 25, 1998, Chris McFarland, an agent with the East Mississippi Drug Task Force, drove a confidential informant to the residence of Luther Carr for the purpose of making an undercover drug buy. They were driving a pickup -truck equipped with concealed video and audio devices. Agent McFarland also was wired with a transmitter to record the sale. Three other agents, including Chris Scott, performed surveillance of the activity from a distance. Although they were unable to see the actual transaction, they were able to monitor the audio portion of the sale from the body wire.

¶ 3. At trial, only shadow images could be seen on the video. When the agent and informant arrived at Luther Carr’s home, Carr was outside and approached their vehicle. Carr accepted one hundred dollars from the agent for the purchase of cocaine. He then went into the house while the agent and the confidential informant waited in the vehicle. Broderick Carr delivered the cocaine to the agent.

¶ 4. Agent Scott monitored the sale and recognized the voice on the tape as Luther Carr’s from previous surveillance videos. A forensic scientist verified that the substance was cocaine.

DISCUSSION

I. WHETHER OR NOT INSTRUCTION C-ll CONTAINED AN ASSUMPTION OF FACT.

¶ 5. Luther Carr argues that jury instruction C-ll contains an assumption of fact in paragraph number two, that he received the payment for the cocaine. However, since Carr did not offer this as a ground for objection in the trial court, he cannot argue this as a ground for objection on appeal. Holland v. State, 705 So.2d 307, 347 (¶ 164) (Miss.1997). Therefore, Carr is procedurally barred from raising this assignment of error.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING WITNESSES TO TESTIFY IN SUCH A MANNER THAT WOULD IMPLY PRIOR CRIMINAL ACTIVITY ON CARR’S PART AND ERRED IN DENYING A MOTION FOR MISTRIAL.

¶ 6. Luther Carr contends that the surveillance by the agents and Agent McFarland’s reference to a “previous buy” served only to prejudice the jury against him and warranted a mistrial. Carr also argued that the totality of the testimony implied that Carr had sold drugs before.

¶7. Beginning with the testimony of Agent Scott, we note three separate instances where the testimony was appropriately objected to concerning the possibility of other criminal activity. The first instance was when Agent Scott stated the following reasons for the surveillance of Luther Carr:

Q. What basis did you have to suspect Mr. Carr’s house was being used as a—
A. We’ve had prior video surveillance. Mr. Collins: Object to him testifying what someone else has done.
Q. Okay Chris, when you say we, who made the video?
A. Myself and Agent Lee. We made the video recording of the residence where Mr. Carr was living at the time— not at 1802 33rd, but it was a different location where he was residing at approximately—this surveillance probably went on about three and a half months— Mr. Collins: [Ojbject to testimony of any other instance that he’s attempting to bring in.
The COURT: Sustained then.

¶8. The second instance also occurred during the direct examination of Agent Scott when the prosecution asked him to discuss how he had come to know Luther and Broderick Carr. Agent Scott responded that he dealt with Broderick previously, but had not dealt with Carr except for the intelligence that he and another agent had gathered. At this time defense counsel promptly objected and the trial court sustained the objection.

¶ 9. In both instances the defense never requested the court to instruct the jury to disregard either answer. “It is the rule in this State that where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error.” McGowan v. State, 706 So.2d 231(¶46) (Miss.1997).

¶ 10. Carr contends that the third prejudicial reference occurred during Agent McFarland’s direct examination when he responded that he had seen Luther Carr at a previous buy.

Q. Prior to being at that house at that location where you saw Luther Carr on this video, which you say was about 4:30 p.m., had you seen him earlier that day?
A. No, that was the first time.
Q. Have you ever seen him at the residence that you stopped at at the six o’clock buy?
A. Yes.
Q. When did you see him there?
A. At a previous buy—I don’t know what date it was.

Defense counsel then objected and the court sustained the objection.

¶ 11. In the absence of the jury, the trial court offered “to instruct the jury to disregard the witness’s answer, and then poll the jury to make sure that all fourteen of them will disregard that answer.” However, Carr’s counsel declined to accept the trial judge’s offer. As stated, “because the defense failed to request that the jury be admonished, the sustaining of the objection was sufficient to prevent reversible error. There is no reversible error where the court did all that it was asked to do.” Cotton v. State, 676 So.2d 308, 315 (Miss.1996).

¶ 12. Defense counsel then moved for a mistrial and the trial court overruled his motion. “This Court has repeatedly held that the granting of a motion for a mistrial is within the sound discretion of the trial judge.” Ragin v. State, 724 So.2d 901(¶ 13) (Miss.1998). The reviewing court recognizes that the trial judge is in the best position to determine whether an objectionable remark has had any prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990). For this reason, the trial court is allowed considerable discretion in determining whether a remark was so prejudicial that it warrants a mistrial. Id.

¶ 13. In the present case, after declining to admit the testimony about the “previous buy,” the trial judge further conducted a balancing test to weigh the prejudicial effect of the statement. The trial judge noted that the comments “sort of went through pretty quickly, and I didn’t detect any of the jurors, you know, paying real close attention to the line of questions and answers.” The trial judge also noted the witness’s answer was in the category of “fleeting responses.”

¶ 14. McFarland stated that he had seen Carr at that residence at a previous buy, not that he specifically bought drugs from Carr before at that residence. Because there was never any testimony before the jury as to any specific criminal activity directly attributed to Carr, the statement made by McFarland did not necessarily make a negative impact on the jury-

¶ 15. The trial judge found that the effect of the statement did not require that a mistrial be granted. The trial judge did not abuse his discretion and this assignment of error is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION FOR NEW TRIAL?

¶ 16. Luther Carr contends there are contradictions in the testimony of the State’s witnesses. Carr contends that McFarland’s credibility was compromised. Carr also suggests that the jury was required to accept McFarland’s and Scott’s opinion that the voice on the audio of the 6:00 p.m. meeting was that of Luther Carr, not Broderick’s. Therefore, Carr challenges the weight and sufficiency of the evidence.

¶ 17. Whether considering a challenge to the sufficiency of the evidence to support a criminal conviction or a claim that the verdict is against the weight of the evidence, this Court must review the evidence in the light most favorable to the State. Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995). Viewed in that light, we do not find that a reasonable and fair-minded juror could only reach the conclusion that the State had failed to prove Carr’s guilt beyond a reasonable doubt.

¶ 18. The jury heard the witnesses and the evidence as presented by the State. The jury heard testimony from Agent McFarland and Agent Scott regarding the transaction. Further, by pointing Carr out in the court room, Agent McFarland expressed no doubt as to the identity of the person who sold him the cocaine at the six o’clock meeting on November 25, 1998. The forensic scientist’s testimony verified that the substance was cocaine. Luther Carr offered no evidence to contradict the State’s case.

¶ 19. The Mississippi Supreme Court has held that the “the jury is charged with the responsibility of weighing and considering the conflicting evidence and credibility of the witness and determining whose testimony should be believed.” Burrell v. State, 613 So.2d 1186, 1192 (Miss.1993). Carr’s guilt, therefore, was a question for the jury to evaluate. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The jury’s decision to believe the State’s evidence and witnesses was well within its discretion. Moreover, the jury was well within its power to weigh the evidence and the credibility of the witnesses’ testimony to convict Carr for the sale of cocaine.

¶ 20. Neither are we convinced that the weight of the evidence pointed away from Carr’s guilt to the extent that a new trial is necessary. The decision to grant a new trial “rests in the sound discretion of the trial court, and the motion for a new trial based on the weight of the evidence should not be granted except to prevent an unconscionable injustice.” McClain, 625 So.2d at 778.

¶21. The trial court did not abuse its discretion by refusing to grant Carr a new trial based on the weight of the evidence. The jury verdict was not so contrary to the overwhelming weight of the evidence that to allow it to stand would be to promote an unconscionable injustice. The trial court properly denied Carr’s motion for a new trial and this assignment of error is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF THE SALE OF COCAINE AS AN HABITUAL OFFENDER AND SENTENCE OF SIXTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. SENTENCE SHALL RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN LAUDERDALE COUNTY CRIMINAL CASE NUMBER 653-99. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS and CHANDLER, JJ., concur.