text:
    Bobby DOOLIE a/k/a Bobby J. Doolie, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00792-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    Rehearing Denied Oct. 14, 2003.

      James G. McIntyre, Jackson, for appellant.
    Office of the Attorney General, by Deirdre McCrory, for appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Bobby Doolie was found guilty of felony driving under the influence (DUI), third offense. Aggrieved, Doolie argues on appeal that the overwhelming weight of the evidence is against the verdict and that the documentation of his prior DUI convictions presented at trial were not properly authenticated. Finding no error, we affirm.

FACTS

¶ 2. On December 20, 1998, at approximately 3:30 a.m., Gill Baker, a DUI officer with the Jackson Police Department, observed the vehicle in front of him cross the fog line three times. Officer Baker attempted to initiate a stop by turning on his blue lights, but the vehicle did not stop. Officer Baker then hit his air horn, but the vehicle continued. After Officer Baker hit his air horn a second time, the vehicle crossed the center line of the highway and went into the path of an oncoming car and then eventually turned into a parking lot where the vehicle finally stopped. The driver of the vehicle was identified as Bobby Doolie.

¶ 3. When Officer Baker approached the vehicle and spoke with Doolie, he smelled a strong odor of alcohol, observed that Doo-lie’s eyes were bloodshot, and noticed that Doolie’s speech was slurred. Upon being asked for a driver’s license, Doolie fumbled through his wallet for a minute and a half before he finally produced a different form of identification, because his license was suspended.

¶ 4. After Doolie exited the vehicle, he demonstrated a lack of coordination and unsteadiness on his feet. Officer Baker then conducted a field sobriety test, known as the horizontal gaze nystagmus test. Officer Baker, certified in standardized field sobriety testing and an instructor for field sobriety testing, determined that from the totality of his observations there was no need to perform any additional field sobriety tests. The officer determined that probable cause existed to offer Doolie the intoxilyzer test. Officer Baker then placed Doolie in his vehicle and transported him to the precinct where the intoxilyzer was offered.

¶ 5. Doolie stumbled when he exited the vehicle at the precinct and staggered and stumbled as he walked toward the Intoxi-lyzer 5000 machine. Doolie accepted the test, but refused to give an adequate breath sample to complete the test. Despite instructions, Doolie repeatedly would blow and then stop prematurely. Doolie was then transported to the city jail and cited for driving with a suspended license.

¶ 6. Doolie’s subsequent indictment charged him with “unlawfully and felo-niously driving] or otherwise operating] a vehicle ... while under the influence of intoxicating liquor ... having been previously convicted of two violations of Section 63-11-30(1).” Doolie requested a bench trial and waived his right to a jury trial. During trial, Officer Baker testified to the events of that night. Doolie’s prior DUI convictions were then presented to the court. The trial judge found Doolie guilty of felony DUI.

ANALYSIS

1. Whether the court’s verdict was against the overwhelming weight of the evidence.

¶ 7. Doolie asserts that the evidence presented failed to prove, beyond a reasonable doubt, that he was guilty of driving under the influence. This issue was addressed in Ford v. State, 753 So.2d 489, 490(¶ 8) (Miss.Ct.App.1999), where this Court held that:

[i]n determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

The Mississippi Supreme Court has held that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 991 (Miss.1987). In a bench trial, as in this case, the trial judge is “the jury” for all purposes of resolving issues of fact. Evans v. State, 547 So.2d 38, 40 (Miss.1989). “A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,” and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Mason v. State, 799 So.2d 884, 885(¶ 4)(Miss.Ct.App.2001).

¶ 8. The State presented sufficient evidence, in the form of Officer Baker’s testimony, from which the trial judge could reasonably conclude that Doolie was under the influence of intoxicants to the degree that his motor skills necessary to properly operate a motor vehicle were impaired. Miss.Code Ann. § 63-ll-30(l)(a) (Supp. 2002). Officer Baker, a trained DUI officer and instructor, testified that he observed Doolie weaving across the highway on at least three occasions. He further testified that he smelled a strong odor of alcohol, noticed bloodshot eyes and slurred speech, noticed Doolie fumble through his wallet for identification, and observed that Doolie was unsteady on his feet.

¶ 9. Doolie provided no evidence to the contrary. Doolie did not present any evidence that he had taken any medication, that he had a speech impediment, that he had impaired vision, or that could explain why he was weaving across the highway. He also did not provide an explanation for why he smelled like alcohol, why his eyes were bloodshot, why his speech was slurred, or for why he was unsteady on his feet.

¶ 10. In conclusion, the defense presented no evidence tending to demonstrate Doolie’s innocence. On cross-examination of the prosecution’s witness, the defense did not develop any evidence tending to impeach the prosecution’s witness nor did the defense elicit any affirmative exculpatory evidence. In the final analysis, there was simply no evidence to weigh against the State’s evidence. Therefore, this Court cannot hold that a manifest miscarriage of justice would occur by permitting the verdict to stand. Brown v. State, 763 So.2d 207, 209(¶ 6) (Miss.Ct.App.2000). We find this assignment of error to be without merit.

2. Whether the court erred in admitting the justice court record.

¶ 11. Mississippi Code Annotated § 63-ll-30(2)(c) (Supp.2002) provides that in order to be convicted of felony DUI, the defendant must have two prior DUI convictions within the last five years. At trial, the State introduced two certified copies of records documenting Doolie’s two previous DUI misdemeanor convictions, one from Grenada County Justice Court and one from Grenada County Municipal Court. The justice court record evidenced Doolie’s first DUI conviction on November 20, 1997. The municipal court record evidenced Doolie’s second DUI conviction on January 27, 1998. The State offered an additional record from the Mississippi Department of Public Safety, which also reported Doolie’s two previous DUI misdemeanor convictions. The Mississippi Department of Public Safety record was a certified computer printout, under seal, of Doolie’s driving record.

¶ 12. Doolie objected to the justice court record on the grounds that it was an abstract without an official seal and, therefore, not self authenticating. He further objected to the Department of Public Safety record as inadmissible hearsay. Doolie did not object to the municipal court record. The trial court found that the justice court record corroborated and supported the accuracy of the Department of Public Safety record. The trial court further found that the Department of Public Safety record was admissible as a public record exception to the hearsay rule pursuant to Mississippi Rules of Evidence 803(8). Specifically, the trial court held:

Well, standing alone, the defendant may have a point, but the court, again, finding that the Department of Public Safety’s record was properly under seal, and that is an official document of the State of Mississippi, and that does show the two prior DUI misdemeanor convictions, including the one with the justice court, and taken together, the Court believes that it is properly admissible, but, again, believes that the State Public Service Department’s report is sufficient on its own, and the Court may not have admitted the justice court had that been the only one, but since the Public Safety Department was under seal and an official document of the State of Mississippi for such records, then the Court admitted those.

¶ 13. On appeal, Doolie argues that the trial court erred in the admission of the justice court record and the municipal court record. Doolie contends that the records were not under seal and, therefore, not self-authenticating pursuant to Mississippi Rule of Evidence 902(1). Doo-lie farther argues that there is no way to interpret the public records exception of M.R.E. 803(8) to allow the admissibility of a municipal court abstract of previous criminal convictions.

¶ 14. We disagree. First, Doo-lie failed to object to the municipal court record at the trial level. A trial court will not be put in error on appeal for a matter not presented to it for decision. Harris v. Lewis, 755 So.2d 1199, 1204(¶ 18) (Miss.Ct.App.1999). Therefore, we will not entertain Doolie’s argument as to the admissibility of the municipal court record. Second, Doolie’s contention that the trial court admitted the municipal court record into evidence pursuant to the public record exception of M.R.E. 803(8) is misplaced. The trial court did not admit the municipal court record or the justice court record pursuant to M.R.E. 803(8). The trial court only admitted the Mississippi Department of Public Safety record pursuant to M.R.E. 803(8). Doolie also fails to mention the Mississippi Department of Public Safety record in his appeal.

¶ 15. We now look to see whether the trial court erred in admitting the justice court record. The admissibility of evidence lies within the discretion of the trial court. Peterson v. State, 671 So.2d 647, 655 (Miss.1996). We will not disturb the trial court’s ruling unless that court utilized an improper legal standard in determining admissibility such that the admission of the document resulted in an abuse of discretion resulting in prejudice to the defendant. Id. at 655-56.

¶ 16. In Ficklin v. State, 758 So.2d 457, 461-62 (¶¶ 20-24) (Miss.Ct.App.2000), this Court addressed the issues of the public records exception of M.R.E. 803(8) and self-authentication concerning the admission of certified printouts of prior convictions to prove habitual offender status for enhanced sentencing. In Ficklin, the State offered a certified computer printout of the defendant’s files from the Mississippi Department of Corrections to show that he was an habitual offender. The defendant argued that the records were hearsay and that the records were improperly found to be self-authenticating. This Court found “that the computer generated records of Ficklin’s prior incarceration fall within the public records exception to the hearsay rule, and are admissible as data compilation under Rule 803(8).” Id. at 462(¶ 23). As to Ficklin’s self-authentication argument, this Court found pursuant to M.R.E. 902(4), that “[sjince the computer printouts are classified as data compilations, they were admissible after being certified as correct over the signature of the custodian.” Id. at (¶ 24)

¶ 17. Following Ficklin, we find that the Mississippi Department of Public Safety printout of Doolie’s driving record is admissible as a data compilation pursuant to the public record exception of M.R.E. 803(8). As to whether the record is self-authenticated, like in Ficklin, this Court finds that the Mississippi Department of Public Safety driving record is admissible after being certified as correct by the signature of the custodian of the records. Furthermore, the Mississippi Department of Public Safety driving record was under seal, and therefore, self-authenticated pursuant to M.R.E. 902(1).

¶ 18. Finding the Mississippi Department of Public Safety record admissible, we hold the admission of the justice court record to be of no error. To find error, the admission must have prejudiced the defendant. Peterson v. State, 671 So.2d 647, 655-56 (Miss.1996). There was no prejudice to Doolie by admitting the corroborating document. Mississippi Code Annotated § 63 — 11—30(2)(c), which requires proof of two prior DUI convictions within the last five years for felony DUI, was satisfied by the admissible Mississippi Department of Public Safety record. Furthermore, the municipal court record also supported the element by indicating that Doolie had been convicted of his second DUI offense. Therefore, we find that no prejudice resulted from the admission of the corroborating justice court record. Thus, the trial court did not err and this assignment of error is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF FELONY DUI AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS SUSPENDED, TWO YEARS POST-RELEASE SUPERVISION AND FINE OF $2,000 IS AFFIRMED WITH SENTENCE TO RUN CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ., CONCUR.


source: Caselaw Access Project

author: THOMAS, J.,

license: Public Domain

text:
    UNION PLANTERS NATIONAL BANK, N.A., Oxford Square Office, Appellant, v. Arline K. JETTON, Appellee.
    No. 2001-CA-01609-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    Rehearing Denied Sept. 23, 2003.

      Thad J. Mueller, Attorney for Appellant.
    Thomas Henry Freeland, Oxford, Attorney for Appellee.
    Before KING, P.J., THOMAS, MYERS and GRIFFIS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Arline Jetton brought suit against Union Planters Bank for conversion of monies which were in possession of the bank because Ms. Jetton had purchased certificates of deposit from the bank which also included the names of her two sons as joint owners. She was awarded $109,649.10 plus pre-judgment interest as well as attorney’s fees in the amount of $27,777.61. Aggrieved Union Planters asserts the following:

I. AS A MATTER OF LAW, UNION PLANTERS HELD A CONTRACTUAL RIGHT OF SETOFF BY VIRTUE OF THE PROVISIONS IN THE CERTIFICATES OF DEPOSIT AND PROMISSORY NOTE.

II. THE COURT ERRED BY ALLOWING, OVER OBJECTION, PAROL EVIDENCE TO ALTER THE CONTRACT CREATING A JOINT TENANCY.

III. MS. JETTON, WAYNE AND JIM FAILED TO READ THE CONTRACTS; THE ACCOUNT WAS A GENERAL ACCOUNT SUBJECT TO CONTRACTUAL SETOFF.

IV. CONTRARY TO THE CHANCELLOR’S DECISION, THE BANK DID NOT HOLD ITSELF OUT AS AN “EXPERT” IN INVESTMENTS.

V. THE COURT ERRED IN AWARDING ATTORNEY’S FEES AND COSTS.

FACTS

¶ 2. In 1995 Arline Jetton purchased two $70,000 certificates of deposit and one $10,000 certificate of deposit from South-trust Bank which were subsequently acquired by Union Planters Bank, hereafter referred to as UPB, when UPB bought Southtrust. Accompanying Ms. Jetton were her two sons, Jim and Wayne. Ms. Jetton’s husband had recently passed away and she wanted to be sure her sons could take care of her if need be, so she brought them with her and put their names on the certificates of deposit as joint owners. The interest payment from the CD’s came directly to her pursuant to her request, which was signed by all parties.

¶ 3. On September 3, 1996, Wayne executed a promissory note in favor of UPB in the amount of $247,044, due and payable on November 10, 1996. The loan was secured by a contemporaneous deed of trust on a “spec” home in the Grand Oaks subdivision in Oxford. After granting a number of requested extensions and after numerous requests to pay the loan, UPB was forced to begin foreclosure proceedings against Wayne. UPB suggested pledging real property known as Patio Gardens Apartments to allow UPB to extend Wayne’s loan even further. Wayne verbally agreed to do this, but just two days later deeded both Patio Gardens and his home to his wife. When asked about this at trial Wayne testified, “I did not want the bank to take them.” UPB was forced to foreclose on the security interest which left a deficiency in the amount of $109,649.10. UPB executed its right to setoff against the certificates of deposit, leaving a balance of $40,350.90. A bank draft in that amount was made payable to Ms. Jetton, Wayne and Jim.

¶ 4. The effect of the joint tenancy was not orally explained to Ms. Jetton, but was plainly apparent in the contract signed by Ms. Jetton. The terms of the original certificate of deposit contracts, as well as numerous renewals, contained standard setoff provisions outlined in bold print, RIGHT OF SETOFF, on the first page of the certificate of deposit.

¶ 5. When questioned at trial about the verbal statements made prior to the written contract, counsel for UPB objected, citing the parol evidence rule. The chancellor ruled that the testimony was allowed because, “Chancery Court is a court of equity, I sit as judge and jury. I’m going to let her answer it for what it is worth. I know that I was a guardian of a man here in Lafayette County, a disabled war veteran, and I had heck with banks with his funds, he had close to half a million dollars. They kept putting him and me down as joint tenants on the CD’s.” He further explained, “I am going to let her testify as to what her conversation was with the bank at the time that she purchased the CD.”

¶ 6. On direct examination the following exchange occurred between Ms. Jetton and her attorney:

Q. I understand that you have said you asked the people at the bank to set this CD up so that your sons could have access to the money to use it for your benefit, is that what I understand you have said?
A. Well, if need be. Yeah.
Q. I notice that the certificate of deposit is made Arline Jetton or Wayne Estes or Jim Estes. Was there any discussion at the bank as to what the way they set this up meant?
A. No discussion

¶ 7. Ms. Jetton further testified that if she would have known that the bank could set off debts of Jim’s or Wayne’s then she never would have bought the CD. She testified that her sons had a power of attorney allowing them to handle her business which made the joint ownership unnecessary. The bank was never informed of a power of attorney.

ANALYSIS

¶ 8. We must determined if there was any evidence to justify a holding that UPB had a fiduciary relationship with Ms. Jet-ton which in effect would hold UPB responsible for Ms. Jetton’s actions regarding her investments with the bank.

¶ 9. Our standard of review with this issue, again, allows that we only disturb the chancellor’s findings if we find manifest error, abuse of discretion, or that the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175(¶ 7) (Miss.Ct.App.1998).

¶ 10. A fiduciary relationship does not automatically exist in a commercial loan transaction. See, e.g., Hopewell Enters., Inc. v. Trustmark Nat’l Bank, 680 So.2d 812, 816 (Miss.1996); Peoples Bank & Trust Co. v. Cermack, 658 So.2d 1352, 1358 (Miss.1995) (overruled on other grounds). The party asserting the existence of a fiduciary relationship bears the burden of proving its existence by clear and convincing evidence. Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 150(¶ 28) (Miss.1998). The Mississippi Supreme Court has provided a three-part test for determining whether a fiduciary relationship exists in a commercial transaction: whether (1) the parties have shared goals in each other’s commercial activities, (2) one of the parties places justifiable confidence or trust in the other party’s fidelity, and (3) the trusted party exercises effective control over the other party. AmSouth Bank v. Gupta, 838 So.2d 205, 216(¶ 32) (Miss.2002).

¶ 11. There has been a refusal to recognize the existence of a fiduciary relationship in cases where the relationship between the two parties was no more than “an arms-length business transaction involving a normal debtor-creditor relationship.” Merchants & Planters Bank of Raymond v. Williamson, 691 So.2d 398, 404 (Miss.1997). A fiduciary relationship “arises only if the activities of both parties goes beyond their operating on their own behalf and the activity is for the benefit of both.” Carter Equip. Co. v. John Deere Indus. Equip. Co., 681 F.2d 386, 391 (5th Cir.1982); Burgess v. Bankplus, 830 So.2d 1223, 1227(¶ 7) (Miss.2002).

¶ 12. Ms. Jetton’s claim and reliance on a bank’s fiduciary duty under these circumstances is unfounded by facts or law. There were no previous dealings with the bank, this was nothing more than a normal eustomer/bank transaction and there was no reason for Ms. Jetton to have justification in a belief that UPB owed her some heightened duty beyond that of any other bank and customer under the same circumstances.

¶ 13. To recover for fraud or mistake, “the circumstances constituting fraud or mistake shall be stated with particularity.” M.R.C.P. 9(b). To establish fraud, “there must be a representation of the falsity thereof, the materiality of the false representations, the speaker’s intent that it be acted on by the other in the anticipated manner, the hearer’s ignorance of its falsity, his reliance on its truth, his right to rely thereon, and his consequent and proximate injury.” McMahon v. McMahon, 247 Miss. 822, 836, 157 So.2d 494, 501 (1963); see also M.R.C.P. 9(b) cmt.; Burgess v. Bankplus, 830 So.2d 1223, 1228(¶ 9) (Miss.2002).

¶ 14. There has not been any evidence presented of any fraud on the part of UPB; the chancellor so found. In the Appellee’s brief and testimony at trial, the assertion was made that Wayne had acquired the liability of his loan with UPB prior to Ms. Jetton’s certificates of deposit purchase and that this somehow gave rise to an intent on the part of UPB to possibly access Ms. Jetton’s account. This was not true. Wayne’s loan was not procured until some eighteen months after the initial purchase of the certificates. Furthermore, it was secured with separate collateral. Wayne subsequently, in an effort to defraud UPB, changed the ownership of other properties from his name to his wife’s name in an attempt to make the bank’s endeavor to collect a deficiency against him futile.

¶ 15. Under Mississippi law, where the contract is not ambiguous, the intention of the contracting parties should be gleaned solely from the wording of the contract. Heritage Cablevision v. New Albany Elec. Power Sys., 646 So.2d 1305, 1312 (Miss.1994). Parol evidence will not be received to vary or alter the terms of a written agreement that is intended to express the entire agreement of the parties on the subject matter at hand. Turner v. Terry, 799 So.2d 25, 32 (¶ 16) (Miss.2001); Grenada Auto Co. v. Waldrop, 188 Miss. 468, 195 So. 491, 492 (1940). A “court is obligated to enforce a contract executed by legally competent parties where the terms of the contract are clear and unambiguous.” Merchants & Farmers Bank v. State ex rel. Moore, 651 So.2d 1060, 1061 (Miss.1995). As stated in Delta Pride Catfish, Inc. v. Home Ins. Co., 697 So.2d 400, 404 (Miss.1997), the parties are bound by the language of the contract where a contract is unambiguous. We are “concerned with what the contracting parties have said to each other, not some secret thought of one [that was] not communicated to the other.” Mississippi State Highway Com’n v. Patterson Enterprises Ltd., 627 So.2d 261, 263 (Miss.1993). “While a valid contract may be reformed where a mistake has been made, the general rule is that reformation is justified only if the mistake is a mutual one, or where one party made a mistake and the other party committed fraud or inequitable conduct.” Palmere v. Curtis, 789 So.2d 126, 131(¶ 12) (Miss.Ct.App.2001) (citing Ivison v. Ivison, 762 So.2d 329, 335-36 (¶21) (Miss.2000)). However, “[t]he mistake that will justify a reformation must be in the drafting of the instrument, not in the making of the contract.” Id. (quoting Johnson v. Consolidated Am. Life Ins. Co., 244 So .2d 400, 402 (Miss.1971)). Parol evidence is admissible to show that the making of a written contract was procured by fraudulent representations. Turner v. Terry, 799 So.2d 25, 33-34 (¶ 25) (Miss.2001). It impeaches the written contract. Id. Its purpose is to show that there was no valid, written contract, and a provision in a written contract that it contains all the stipulations entered into by the parties does not add anything to its strength. Turner v. Terry, 799 So.2d 25, 33-34 (¶25) (Miss.2001); Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708, 709 (1930).

¶ 16. The chancellor found that the bank did not commit fraud. Since fraud is not found to be present then the unambiguous meaning of the contract cannot be disturbed. The chancellor opined that the facts of the case demand that equity be done, but it would be inequitable to hold UPB to a standard not allowed by law and to provide safe haven for individuals unwilling to read a contract before they sign it. Ms. Jetton asked for a certificate of deposit which her sons would have access to and that is what she got.

¶ 17. The “set-off’ principle gives financial institutions the ability to apply a debtor’s deposit to payment of his debt then due. Simrall, 524 So.2d at 299-300. The Mississippi Supreme Court stated in Moreland v. People’s Bank: “It is well settled that the bank itself has a right, if it so desires, to apply whatever amount the maker of the note has on deposit with it to a payment on the note.” Collums ex rel. Collums v. Union Planters Bank, N.A., 832 So.2d 572, 576-577(¶ 11) (Miss.Ct.App.2002) (citing Moreland v. People’s Bank, 114 Miss. 203, 211-12, 74 So. 828, 829-30 (1917)). Or, in other words, the bank itself has the right to set off the amount it owes the depositor against the amount owed it by the depositor. Id. The relation existing between a bank and a depositor is simply one of debtor and creditor. Moreland, 114 Miss. at 211-12, 74 So. at 829-30. As such, the bank was not at fault by closing the account and applying the balance to the overdue note. UPB exercised its right to setoff debts in accordance with the law of this State.

¶ 18. The lower court’s holding in this case is not consistent with the law in Mississippi. A contract was written and signed with no ambiguity as to the meaning of the terms, no fraud and no extra duty on any party. At no time did the bank act with nefarious intentions or tactics. We are compelled to reverse and render. We necessarily in turn vacate the award of attorney’s fees.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS REVERSED AND RENDERED. COSTS ARE TAXED AGAINST THE APPELLEE.

KING AND SOUTHWICK, P JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. McMILLIN, C.J., NOT PARTICIPATING.


author: IRVING, J.,

text:
    Trumel Keith COX, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00550-COA.
    Court of Appeals of Mississippi.
    July 22, 2003.
    Trumel Keith Cox, Appellant, pro se.
    Office of the Attorney General by John R. Henry, Attorney for Appellee.
    Before SOUTHWICK, P.J., LEE, IRVING and MYERS, JJ.
   IRVING, J.,

for the Court.

¶ 1. On December 4, 1997, Trumel K. Cox was convicted by a Yazoo County jury of rape and kidnapping. He was sentenced to concurrent terms of ten years on each of the offenses. He appealed his conviction to the Mississippi Supreme Court. The appeal was sent to this Court which, on March 23, 1999, affirmed Cox’s conviction and sentence. See Cox v. State, 736 So.2d 450 (Miss.Ct.App.1999).

¶ 2. During the pendency of the appeal, Cox was out of jail on bail. Almost three years after the affirmance of his conviction and sentence, Cox, on January 16, 2002, filed a letter request in the trial court seeking credit for the period of time between his release on bond and the date of the affirmance of his conviction and sentence on appeal.

¶ 3. The trial judge, citing lack of jurisdiction pursuant to Mississippi Code Annotated section 99-35-131 (Rev.2000), denied the request. The section relied upon by the trial judge provides:

In case of an affirmance by the supreme court of a judgment for imprisonment, if the appellant had remained in prison pending the appeal, the time of imprisonment shall be credited to him, but if he Dias] been on bail, the supreme court shall fix the time for the commencement of his imprisonment, under the judgment of affirmance, so as to cause him to suffer the full time of imprisonment fixed by the judgment of the court below.

Miss.Code Ann. § 99-35-131(Rev.2000).

¶ 4. In his appeal, Cox does not address the lack of jurisdiction issue, choosing instead to overlook this issue and argue the merits of the issue presented to the trial judge.

¶ 5. We agree with the trial court that it lacked jurisdiction, although we reach this decision by a slightly different avenue than did the trial judge.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. The trial judge found that Mississippi Code Annotated section 99-35-131 (Rev. 2000), was an impediment to the exercise of its jurisdiction and denied Cox’s request for relief. This Court finds that Cox’s request was never properly before the trial court. Consequently, this Court affirms the decision of the trial court denying the requested relief, although on a different basis.

¶ 7. First, the letter request to the trial court did not comport with the procedural requirements of Mississippi Code Annotated section 99-39-9 (Supp.2002), which prescribes what a post-conviction relief motion must contain. Second, since Cox’s conviction and sentence had been affirmed on direct appeal, it was necessary for him to secure permission from the Mississippi Supreme Court in order to pursue a motion for post-conviction relief, assuming ar-guendo, that it was proper to treat the letter request as a motion for post-conviction relief. See Miss.Code Ann. § 99-39-7 (Rev.2002). Nothing in the record shows that permission was either sought or granted. Therefore, we affirm the judgment of the trial court dismissing Cox’s request due to a lack of jurisdiction.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, MYERS AND GRIFFIS, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.


author: SOUTHWICK, P.J.,

text:
    Oliver David CHISOLM, Jr., Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00226-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.

      David M. Sessums, Vicksburg, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. David Chisolm was convicted after a jury trial of timber theft. On appeal, he alleges error by the lower court in admitting certain evidence, in allowing impeachment of a prosecution witness, and in failing to grant a circumstantial evidence jury instruction. Chisolm further challenges the weight and sufficiency of the evidence. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. Evidence in the record supports the following account of events. In April 2000, David Chisolm and his nephew approached landowner Jimmy Zeigler seeking a right-of-way to cut timber on a parcel owned by someone else but surrounded by Zeigler property. Chisolm then offered to cut Zeigler’s scrub trees in the pasture adjacent to the other individual’s land. Zeigler stated that the only timber that he owned that was worth cutting was north of Toshiba Creek, and that he did not wish those trees cut. Chisolm’s knowledge and ignoring of that geographical restriction are the factual issues raised in this appeal.

¶3. Zeigler and his brother eventually agreed to allow Chisolm to cut the scrub timber in the pasture, with the prospect of an additional 75 acres of timber to be cut if Chisolm did a good job. The Zeiglers denied ever giving Chisolm permission to cut the acreage north of Toshiba Creek. Chisolm then employed two loggers, Mike Holmes and Mike Campbell, to cut the Zeiglers’ timber.

¶4. Campbell was assigned to cut the forbidden acreage north of the creek. Chisolm himself contacted an adjoining landowner to secure Campbell’s access. Campbell spent three days clearing the land, and then was prepared to move on to the Zeiglers’ 75 acre tract that could be cut if the Zeiglers were satisfied with the initial work.

¶ 5. Timber-cutter Holmes had been instructed to cut the pasture scrub. Zeigler visited the pasture as Holmes’ crew was working and discovered the work did not meet his expectations as large stumps were being left. Zeigler confronted Chi-solm about the quality of the work and discovered that the Toshiba Creek timber had been cut. Faced with the reality that the trees were down, Zeigler and his brother demanded payment for the Toshiba Creek timber, at the same rate agreed to for the pasture cutting. Despite Chi-solm’s assurances, the brothers never received payment beyond approximately $4,100, the value of the pasture scrub cut by Holmes. The Zeiglers then contacted the Mississippi Agricultural Theft Bureau. The resulting investigation led to Chi-solm’s indictment for timber theft.

DISCUSSION

¶ 6. Chisolm states nineteen issues in his brief. We find that his claims can be collapsed into five discrete arguments. We address each in turn.

1. Admissibility of evidence

¶ 7. Chisolm first attacks the lower court’s admission of several pieces of evidence. To a large extent, the admissibility of evidence lies within a trial court’s discretion. Weaver v. State, 713 So.2d 860, 865 (Miss.1997). This Court will employ a broader standard of review, however, if a legal standard has not been properly applied. Peterson v. State, 671 So.2d 647, 655-56 (Miss.1996). Still, we will not reverse unless the improper admission or exclusion of evidence adversely affected a substantial right of the accused. Id. at 656.

¶ 8. Chisolm contends that the court erred in admitting Exhibits S-2, S-2A, and S-2B, which were various settlement sheets that demonstrated the value of the timber that was cut. The settlement sheets were admitted through the testimony of Investigator John Stewart. The investigator was not a proper sponsor of these documents which had been prepared by others. The documents were not certified and were not self-authenticating. See M.R.E. 803(6) & 902(11).

¶ 9. Despite being allowed in through the wrong witness, the information in the documents duplicated witness testimony regarding the same facts. Mike Campbell testified about the sawmills and purchasers to which he had delivered his cuttings, and stated their value. Mike Holmes similarly explained where the timber he cut went. Tommy Reid, a timber dealer who coordinated purchasers for Chisolm, further testified to values he paid to the loggers. These facts were all established through independent witness testimony before each analyzed the appropriate evidentiary document. Competent testimony on the subject of alleged hearsay renders the error harmless. Kolberg v. State, 829 So.2d 29, 64 (Miss.2002).

¶ 10. Chisolm further claims that check stubs introduced as Exhibit S-2G did not represent the best evidence of checks written from a purchaser to Chi-solm; they also were not introduced through a witness who could authenticate them. He contends that the original cheeks, or proper duplicates, were required to be introduced. What has been called the “best evidence” rule is now reduced to a requirement that the original or a satisfactory duplicate of a writing is required when it is necessary to “prove the content of a writing_” M.R.E. 1002 & 1003. The issue to which the checks related was the amount of payment that was made for the improperly cut timber. The State needed to prove that the timber was worth more than $250. Facts may be proven through a variety of relevant evidence. Regardless of the hearsay issue regarding the cheek stubs, the value of the timber was proven through testimony to be substantially more than $250.

2. Elements of the indictment

¶ 11. Chisolm next contends that the prosecution failed to establish a prima fa-cie case to support the conviction. The elements as set out in the indictment were three-fold. The State was required to prove Chisolm’s intent, the act of removal, and the value of the merchantable timber. Miss.Code Ann. § 97-17-59(2) (Rev.2000). Chisolm does not deny that Mike Campbell, at Chisolm’s direction, cut and removed the Toshiba Creek timber. He challenges only the proof of intent and of value.

¶ 12. Chisolm’s primary argument regarding value appears to be that the victim, Jimmy Zeigler, could not quantify how much Chisolm owed him for the cut timber. What Chisolm’s argument does not account for, however, is other proof of the timber’s value offered to the jury. Mike Campbell, Chisolm’s logger who cut Toshiba Creek, testified that he carried logs cut from the tract to at least five named mills. He testified that he was paid through Tommy Reid and that the timber sold for approximately $21,000. Reid himself testified to the $21,000 figure for timber harvested by Campbell. Zeig-ler’s failure to assign value to the timber removed is therefore irrelevant. The jury had both testimony and documentary evidence of timber value in excess of $250.

¶ 13. As to intent, the record contains conflicting evidence. The issue was whether Chisolm, knowing that he did not have authority to do so, intentionally committed the acts. Chisolm testified that Phillip Zeigler told him that if there were logs north of the creek, that he should cut them. However, Phillip Zeigler denied giving permission to anybody to cut timber north of Toshiba Creek. Jimmy Zeigler testified that after he told Chisolm “that we didn’t want to sell the timber back there [north of the creek], he kind of asked me a little bit about it at the time, you know, about how much timber was back there, you know, land wise and all. And I told him we didn’t want to sell it, you know, didn’t have any intentions of selling that timber and it didn’t really matter how much land was back there because we weren’t selling it anyway.”

¶ 14. Other witnesses testified to Chi-solm’s acting as if he had the authority to cut in this location. That only confirms what Chisolm admitted, that he intentionally had the timber cut that was north of the creek. What he disputed was that he did so without permission. This was a simple jury issue, based on the credibility of the Zeiglers compared to that of Chi-solm. The jury apparently believed that permission was not given and that therefore the cutting was unlawful.

¶ 15. Credibility is a matter for the jury. Robert v. State, 821 So.2d 812, 817 (Miss.2002). We find that evidence from which criminal intent could be inferred was presented.

3. Witness impeachment

¶ 16. Chisolm next attacks the lower court’s decision to allow the prosecution to impeach and treat as hostile a witness called during its case in chief. Jim White, Chisolm’s nephew, was called to testify to his knowledge of what timber was authorized by the Zeiglers for cutting. However, on the stand, White began to vacillate. He stated that the Zeiglers had simply said that they did not want to have the timber north of Toshiba Creek cut at that time. Then in response to the question of whether permission to cut that land was given, White said, “Not at that time, no.”

¶ 17. Following a bench conference in which the district attorney made claims about what he had expected White to say, the trial judge granted permission to treat White as a hostile witness. The prosecutor was able to offer some impeachment of White’s trial testimony.

¶ 18. The decision to allow leading questions is one properly reserved to the discretion of the trial court, and we will not disturb it absent an abuse of discretion. Neal v. State, 805 So.2d 520, 527 (Miss.2002). The State argues that treating White as a hostile witness was proper under an evidentiary rule which provides for leading questions to a “witness identified with an adverse party.” M.R.E. 611(c). White was the defendant’s nephew. This rule was not mentioned at trial, yet we find that the lower court properly could have found White to fall within the category of being identified with the other party. Neal, 805 So.2d at 527. There was no abuse of discretion.

i. Jury instruction S-l

¶ 19. Chisolm challenges the lower court’s failure to grant a circumstantial evidence instruction. Circumstantial evidence instructions, which provide that the State must exclude every reasonable hypothesis consistent with innocence, are necessary only when the prosecution can produce neither an eyewitness nor a confession to the gravamen of the offense. Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992). Here, direct evidence was offered to establish the value of the timber. Chisolm admitted to the removal of the cuttings from Toshiba Creek. When “intent alone is sought to be proved by circumstantial evidence, no instruction on circumstantial evidence is necessary.” Alexander v. State, 749 So.2d 1031, 1037 (Miss.1999).

5. Weight and sufficiency of the evidence

¶ 20. Chisolm asserts that the lower court erred in denying his requests for directed verdict or new trial. Such motions constitute challenges to evidentiary sufficiency and weight.

¶ 21. When reviewing the denial of an accused’s motion for directed verdict, we consider all evidence in a light favorable to the verdict, discarding all evidence favoring the defendant. Taylor v. State, 656 So.2d 104, 107 (Miss.1995). We will reverse only upon a finding that no reasonable, hypothetical juror would find guilt. Tait v. State, 669 So.2d 85, 88 (Miss.1996). The record contains evidence that Chisolm ignored clear withholding of permission to cut this timber. There was undisputed evidence of the removal of timber, and testimony and documentary evidence of the timber’s value. Viewing this evidence and the attendant inferences in favor of the conviction, we do not find that the jury’s verdict was unreasonable.

¶ 22. Chisolm further challenges his conviction as contrary to the overwhelming weight of the evidence. Here, our analysis shifts in perspective from whether the verdict is supported in law and fact to whether the verdict is clearly unjust. We will not set aside a verdict and order a new trial unless to allow the verdict to stand would constitute an “unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). The basis for this admittedly high standard is our deference to the jury’s verdict. Burrell v. State, 613 So.2d 1186, 1191 (Miss.1993).

¶ 23. Chisolm asserts that the “atmosphere” of the trial was incurably prejudicial to him. The evidence in the record before us does not support his claim of injustice.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION OF TIMBER THEFT AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS SUSPENDED IS HEREBY AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: BRIDGES, J.,

text:
    Kelcy WILBURN a/k/a Kelcy Wilburn, Jr. a/k/a Kelcy Wilborn, Jr. a/k/a “June-June”, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01117-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.

      Thomas C. Levidiotis, Oxford, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. On April 9, 2002, Kelcy Wilburn, a/k/a Kelcy Wilburn Jr., a/k/a Kelcy Wil-born, Jr., a/k/a “June-June,” was tried for sale of cocaine before Honorable Henry L. Lackey at the Lafayette County Circuit Court. After two days of testimony, the jury delivered a verdict of guilty. Wilburn was sentenced to thirty years in prison as an habitual offender. From this conviction and sentence, Wilburn appeals to this court.

STATEMENT OF THE ISSUES

I. WAS THE AUDIO TAPE RECORDING OF THE TRANSACTION ADMITTED INTO EVIDENCE PROPERLY IDENTIFIED AND AUTHENTICATED?

II. WAS THERE A PROPER CHAIN OF CUSTODY FOR THE TAPE?

III. DID THE TRIAL COURT ERR WHEN IT IMPOSED AN ENHANCED SENTENCE BASED UPON WILBURN’S STATUS AS A HABITUAL OFFENDER WITHOUT CONDUCTING A HEARING?

FACTS

¶ 2. On February 1, 2001, Agent Allan Castle of the Oxford-Lafayette Metro Narcotics Unit planned a controlled purchase of drugs with two confidential informants (CIs). The informants were James Williams and Vernon “Bo” Padgett. The CIs were provided $125 in official funds to purchase the drugs. Agent Castle along with Agent Sean Lynch were parked about a half mile away from the residence that the CIs entered to make the purchase. Padgett had a body wire and Williams had a tape recorder during the buy. The audio portion of the purchase was transmitted to the officers parked down the street. The transaction was recorded and, according to the CIs, the seller was Kelcy Wilburn.

¶ 3. The CIs met the officers at Metro Narcotic Unit Headquarters and reported that they purchased cocaine from Kelcy Wilburn. Both CIs gave a statement of what had occurred that night. Wilburn was arrested and tried for the sale of cocaine. The jury found him guilty and the judge sentenced him to thirty years as a repeat offender.

ANALYSIS

I. WAS THE AUDIO TAPE RECORDING OF THE TRANSACTION ADMITTED INTO EVIDENCE PROPERLY IDENTIFIED AND AUTHENTICATED?

¶4. Wilburn claims that the tape should not have been put into evidence and that the prosecution failed to establish that it was his voice on the tape recording of the drug sale. The Mississippi Supreme Court has stated that evidence must first satisfy the relevancy test of M.R.E. 401 before it may be admitted at trial. Stromas v. State, 618 So.2d 116, 118 (Miss.1993). This rule states that something is relevant if:

[it has a] tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

M.R.E. 401.

¶ 5. The court in Stromas continued by stating that “once evidence is determined to be relevant, it must then be properly authenticated and identified under Miss. R. Evid. 901.” Stromas, 618 So.2d at 118. This rule provides the requirements for the admission of a tape recording as evidence in a trial. Mississippi Rule of Evidence 901(b)(5) states:

Voice Identification, [identification of a voice, whether heard firsthand or through mechanical of[or] electronic transmission or recording, [may be properly authenticated] by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

¶ 6. In this case, the tape was properly identified and authenticated. There was ample testimony by the officers and informants that they all had previous contacts with Wilburn. Officer Castle testified that he had known Wilburn for several years. Captain Scott Mills, the agent in charge of the Lafayette County Metro Narcotics unit, testified that he had known Wilburn since the late 1980s or early 1990s. James Williams, one of the CIs, testified that he knew Wilburn for a year. Padgett, the other Cl, also testified that he knew Wilburn for a year. Since they had all known Wilburn for a period of time, the officers would be in a position to recognize his voice.

¶ 7. There was no abuse of discretion by the trial court in admitting the tape into evidence.

II. WAS THERE A PROPER CHAIN OF CUSTODY FOR THE TAPE?

¶ 8. Wilburn next claims that the prosecution failed to establish the chain of custody for the tape recording. He claims that the tape could have been tampered with or replaced. The tape was taken from the Cl and was labeled by Officer Castle with his initials. It was then placed in an envelope and into a file cabinet. Wilburn is particularly concerned with the fact that a metal tab is missing from the envelope. Wilburn claims that there are doubts of the authenticity of the tape because of the chain of custody and that no reasonable juror could have found the defendant guilty. The State also concedes that this was objected to at trial.

¶ 9. A defect in a chain of custody arises if there is any suggestion of tampering or substitution of evidence. Wells v. State, 604 So.2d 271, 277 (Miss.1992). The test for improper chain of possession of evidence is whether there is any reasonable inference of likely tampering with or substitution of evidence. Williams v. State, 794 So.2d 181, 185 (¶ 10) (Miss.2001). The burden of proof in establishing tampering with evidence is on the defendant. Id. In this case, Wilburn did not present any evidence that the tape was tampered with. While the envelope the tape was placed in did not have the metal tab, the envelope was not placed in evidence. Furthermore, the testimony of the officers provided the jury with information of who had the tape and where the tape was located at all times. Therefore, we find that there was no abuse of discretion by the trial court.

III. DID THE TRIAL COURT ERR WHEN IT IMPOSED AN ENHANCED SENTENCE BASED UPON WILBURN’S STATUS AS A HABITUAL OFFENDER WITHOUT CONDUCTING A HEARING?

¶ 10. Wilburn finally claims that the court used an improper procedure in his sentencing. He claims that he was not given a proper hearing outside the presence of the jury concerning his prior convictions as is required by Uniform Circuit and County Court Rule 11.03. This rule states: “If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.”

¶ 11. When habitual offender status is alleged and where the accused goes to trial, the trial court is required to hold a separate hearing without a jury in order to determine whether habitual status will be imposed. Nathan v. State, 552 So.2d 99, 106 (Miss.1989). Rule 11.03 of the Uniform Rules of Circuit and County Court Practice requires that sentencing as an habitual offender occur at a separate hearing outside the presence of the jury. Pate v. State, 838 So.2d 343, 347(¶ 9) (Miss.Ct.App.2002). In this case, Wilburn was not given such a hearing. In fact, the sentence of thirty years was given in the presence of the jury just after the guilty verdict was returned. Accordingly, this matter is remanded to the trial court for re-sentencing.

¶ 12. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION FOR THE SALE OF COCAINE IS AFFIRMED. THE MATTER IS REMANDED FOR SENTENCING ONLY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: GRIFFIS, J.,

text:
    Zenkendrick JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01215-COA.
    Court of Appeals of Mississippi.
    Sept. 23, 2003.
    W.S. Stuckey, Greenwood, attorney for appellant.
    Office of the Attorney General by Deirdre MeCrory, attorney for appellee.
    Before McMILLIN, C.J, MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Zenkendrick Johnson was convicted in the Circuit Court of Sunflower County, Mississippi on a charge of possession of a controlled substance on state penitentiary grounds. He was sentenced to seven years in the custody of the Mississippi Department of Corrections. On appeal, Johnson asserts that the verdict was against the overwhelming weight of the evidence. We affirm.

FACTS

¶ 2. On January 30, 2001, Jimmy Hunt, a K-9 officer, and his trained drug detection dog conducted a routine search at building unit 29-1 on the grounds of the Mississippi Department of Corrections, at Parchman, Mississippi. While searching cell No. 22, occupied by Zenkendrick Johnson and Ce-drie Davis, the dog alerted Officer Hunt to a locker box under the bunk beds. Officer Hunt testified that he asked to whom the locker belonged to, and Johnson replied that it was his. The officer searched both Johnson’s and Davis’s lockers, but no drugs were found in either locker. However, Officer Hunt did find a piece of tape underneath Johnson’s locker and found a small plastic bag floating in the toilet. The substance in the bag appeared to be marijuana. Officer Hunt testified that Johnson admitted that the substance was his. Officer Hunt identified Johnson in the courtroom as the man who made the admission and confirmed that he could distinguish between Johnson and Davis.

¶ 3. A field test conducted by Investigator Ronnie Collins revealed that -the substance found was marijuana. Teresa Hickman, a forensic scientist with the Mississippi Crime Lab, also testified that further analysis of the substance found it to be marijuana.

¶ 4. Johnson testified that the dog alerted Officer Hunt to Davis’s locker box and that Davis attempted to flush the substance down the toilet. He also testified that the drugs belonged to Davis, and that Davis had admitted ownership of the substance to the officers.

¶ 5. In rebuttal, the State called Davis to testify. Davis denied depositing the marijuana in the toilet and denied confessing to Officer Hunt that the marijuana was his. He further denied that the marijuana belonged to him. On cross-examination, Davis testified that the dog did not alert Hunt to any particular locker and that Johnson never admitted that the drugs were Johnson’s.

¶ 6. After the defense rested and instructions were given, the jury found Johnson guilty. Johnson’s post-trial motions were denied.

ANALYSIS

1. WHETHER THE VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 7. Johnson contends that the evidence weighs heavily in his favor and against the jury’s verdict. This issue was recently addressed in Ford v. State, 753 So.2d 489, 490(¶ 8) (Miss.Ct.App.1999), where this Court held that:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

(citing Danner v. State, 748 So.2d 844 (Miss.Ct.App.1999)). The Mississippi Supreme Court has held that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 991 (Miss.1987).

¶ 8. Officer Hunt testified that Johnson admitted that the substance was his. Officer Hunt identified Johnson as the man who made that admission. As a result of the admission, Johnson was issued a rules violation report. Hunt further testified that he could distinguish between Johnson and Davis and confirmed that Johnson admitted to owning the drugs.

¶ 9. The jury resolved the question of conflicting testimony against Johnson. “[Tjhe jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Id.

¶ 10. Accepting as true all evidence favorable to the State, this Court is compelled to conclude that the evidence was of such weight to support the jury’s findings. The weight of the evidence is clearly not overwhelmingly contrary to the jury’s verdict. The jury’s verdict does not rise to the level that would constitute an unconscionable injustice. We find this assignment of error to be without merit.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE ON MISSISSIPPI STATE PENITENTIARY GROUNDS AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $10,000 IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ, BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ„ CONCUR.


author: MCMILLIN, C.J.,

text:
    Troy D. BROWN, Appellant, v. NORTH JACKSON NISSAN, INC. and Nathan Graham, Appellees.
    No. 2001-CA-01122-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.

      Michael S. Allred, Ottowa E. Carter, Jackson, attorneys for appellant.
    Teselyn Afinque Melton, Robert L. Gibbs, John Curtis Hall, Jackson, attorneys for appellee.
    Before MCMILLIN, C.J., THOMAS AND CHANDLER, JJ.
   MCMILLIN, C.J.,

for the Court.

¶ 1. Troy Brown recovered a judgment against North Jackson Nissan and its sales agent, Nathan Graham, on a claim that these defendants, acting in concert, had wilfully converted his used automobile for their own use. Brown has appealed, though he was successful in recovering his actual damages, on the ground that the trial court erred in not submitting the issue of punitive damages to the jury. Additionally, Brown contends that the trial court erred in granting these defendants credit against the judgment in an amount equal to that received by Brown in a pretrial settlement reached with other defendants named in the suit. Finding no error, we affirm.

I.

Facts

¶ 2. The parties vigorously contested the underlying facts of the case. In view of the jury’s verdict for conversion in favor of Brown, we must assume that the jury resolved the critical disputed facts establishing the act of conversion in Brown’s favor. This recitation of facts, which is necessary to understand the issues of law discussed hereafter, finds support in the record and would be in accord with Brown’s theory of recovery.

¶3. Brown appeared at North Jackson Nissan and entered into discussions with Graham, a salesman for the company, regarding the possibility of trading his existing vehicle for a different model. After Brown exhibited some reluctance to trade, an arrangement was reached whereby Brown would receive sufficient financing to purchase a new vehicle and receive cash back that would be used to retire other pending debts. At Graham’s insistence, Brown left his vehicle with North Jackson Nissan and went home in a loaned vehicle to give him further time to contemplate the proposed deal. After overnight deliberations, Brown decided that he could not afford to go through with the transaction, and he returned to the dealership to regain possession of his vehicle. He was informed, however, that the vehicle had already been sold. After some further negotiations, Brown purchased a replacement vehicle under an arrangement that included financing a portion of the purchase price. Brown was unable to make the required monthly installments on the new vehicle, and it was ultimately repossessed.

¶ 4. After the new vehicle was lost to Brown because of the repossession, he learned that, in fact, his original trade-in vehicle had not been sold when he had originally appeared and asked for its return. Brown’s theory of recovery was that North Jackson Nissan’s agent, Graham, fraudulently misrepresented the facts concerning the vehicle so that Brown would not attempt to regain possession and would, instead, go through with the original plan to purchase a replacement vehicle from North Jackson Nissan. This concealment of the true facts regarding his vehicle, with the specific purpose of wrongfully and permanently depriving him of its possession, was an act of conversion according to Brown.

¶ 5. Brown originally brought suit against North Jackson Nissan, Graham, and two financing agencies alleged to have been involved in the transaction. The original complaint advanced thirteen separate theories of recovery and sought punitive damages based on the wilful nature of the alleged acts of the various defendants. Prior to trial, Brown’s claims against the financing agencies were resolved by settlement in which Brown received the sum of $2,200.

¶ 6. Brown proceeded to trial solely against North Jackson Nissan and Graham. At the conclusion of the proof, Brown abandoned all theories of recovery except his claims of fraud and conversion. The jury found for the defendants on the fraud claim but found them liable in conversion, assessing Brown’s actual damages at $10,250. After the jury returned its verdict and while it was still empaneled, the trial court inquired of counsel for all parties if there was anything further to come before the court at the time. Both sides responded in the negative and the court dismissed the jury.

¶ 7. North Jackson Nissan and Graham filed a post-verdict motion seeking a determination by the trial court that they were entitled to credit against the judgment in the sum of $2,200, being the amount received by Brown in the pretrial settlement with the financing organizations. The court allowed the credit over Brown’s objection.

¶ 8. Brown filed a posttrial motion for new trial, alleging among other things that the trial court committed reversible error when it failed to proceed under the applicable statute to resolve his claim for punitive damages after the jury had returned its verdict for actual damages. The trial court denied the motion, finding that Graham had waived his right to pursue punitive damages by not raising the issue when the court had inquired, at a time when the jury was still impaneled, if either party had anything further to come before the court.

¶9. In this appeal, Brown alleges that this was reversible error. He also attacks the trial court’s decision to allow credit against the judgment for the settlement amount.

II.

Issue One: Punitive Damages

¶ 10. Brown’s complaint sought punitive damages against the defendants, and he submitted a proposed punitive damage instruction. In keeping with the statutorily-mandated bifurcated nature of a case potentially involving punitive damages, the trial court deferred consideration of Brown’s requested punitive damage instruction when reviewing proposed jury instructions on the law relating to liability and actual damages. Miss.Code Ann. § 11-1-65 (Rev.2002).

¶ 11. There can be no doubt that, once the jury returned its verdict finding in Brown’s favor on his claim sounding in conversion (even though the jury found for North Jackson Nissan and Graham as to Brown’s claim of fraud), it was the appropriate time to consider the issue of Brown’s unresolved claim for punitive damages. Section ll-l-65(l)(c) requires that, upon an award of actual damages, “the court shall promptly commence an evidentiary hearing before the same trier of fact to determine whether punitive damages may be considered.” Miss.Code Ann. § 11 — 1—65(l)(e) (Rev.2002) (emphasis added). Subsection (d) goes on to say that “[t]he court shall determine whether the issue of punitive damages may be submitted to the trier of fact ...” and then charges the trier of fact to decide whether such damages are appropriate and, if so, in what amount. Miss.Code Ann. § 11 — 1— 65(l)(d) (Rev.2002).

¶ 12. In this case, the prompt consideration of the propriety of punitive damages was not undertaken. After the jury returned its verdict, the court inquired if there was “[a]nything further from the plaintiff at this time in connection with the verdict.” Counsel replied that, “I have a motion.” However, there is no indication as to what that motion might have been because, at that point, defense counsel sought to have the jury polled and, based upon that inquiry, it initially appeared that the verdict had not been agreed to by the requisite number of jurors. After some further proceedings to resolve what turned out to be a misunderstanding on the part of one juror, the verdict was accepted. At that point, the court excused the jury “for a few moments while we take up a legal matter.” After the jury departed, the court, in what was an apparent shorthand version of its earlier inquiry, simply stated the word, “Plaintiff.” Counsel responded, “I don’t think I have a motion at this time. I have ten days I guess for posttrial motion.”

¶ 13. After making a similar inquiry of defense counsel, the court returned once again to plaintiffs counsel and explicitly inquired, “Anything further from the plaintiff?” Plaintiff counsel replied this time with, “I don’t think so, Your Honor.” Finally, to end the proceeding, the trial court stated, “Then we are concluded, done, the trial is over, end of trial. Clear. All right.”

¶ 14. Brown now contends that the trial court erred in not automatically proceeding to take up an inquiry regarding punitive damages as outlined in Section 11 — 1— 65 of the Mississippi Code without any prompting from counsel. He points out that the statute contains the mandatory term “shall” rather than “may,” and contends that the prayer for punitive damages in his complaint together with his request for a punitive damage instruction was all that was required to compel the court to take up the matter of punitive damages at the proper time. The trial court, when presented with that proposition in a post-trial motion hearing, determined that Brown had waived his right to pursue punitive damages when he failed to affirmatively assert that right when given the opportunity after the jury returned a verdict in his favor as to actual damages. Brown argues that the court should have automatically proceeded without further affirmative action on his part and that the issue was thereby preserved, both for posttrial consideration by the trial court and as error on appeal. Alternatively, Brown suggests that the court’s failure to take up punitive damages affected a fundamental right in the fair conduct of the trial and, thus, ought to be noted by this Court under the plain error doctrine whether or not we find the issue proeedurally preserved for appellate review. We disagree with both contentions.

¶ 15. It is, in our view, unnecessary to resolve the issue of (a) whether the trial court erred in failing to proceed directly into a Section 11-1-65 inquiry regarding punitive damages after the jury verdict and that an objection to the trial court’s failure was unnecessary to preserve the error for appellate review in much the same manner that formal exception to an evidentiary ruling is unnecessary, or (b) whether the court was under no obligation to proceed unless affirmatively requested to do so by counsel. The result is the same. Even assuming for sake of argument that the court erred when it failed to take up punitive damages without any further prompting from Brown, it is a fundamental concept that errors committed in the conduct of the trial must be timely raised. Mitchell v. Glimm, 819 So.2d 548, 552(¶ 11) (Miss.Ct.App.2002) (citing Gatlin v. State, 724 So.2d 359, 369(¶43) (Miss.1998)). One of the beneficial purposes of the rule is that it affords the trial court an opportunity to correct the error at a time when it can yet be dealt with and thereby avoid the unnecessary waste of limited judicial resources that would be required to retry the matter. Id. Thus, the price a litigant pays for faffing to promptly raise a perceived error affecting the conduct of the trial at a time when corrective action remains a possibility is that the error is deemed to have been waived. Id.

¶ 16. In the case before us, the plaintiff had every opportunity, while the jury was still empaneled, to raise the issue of punitive damages. Though the trial court did not specifically mention punitive damages, the court did repeatedly inquire as to whether the plaintiff had other matters to be dealt with after the jury had returned its verdict on actual damages. In the face of such opportunity, counsel specifically declined to suggest the need for any further proceedings. It was only after that statement by counsel that the court declared the trial at an end and dismissed the jury, thereby ending the legal existence of the very fact-finding body charged by statute with determining the issues necessary to resolve a punitive damages claim. That failure to affirmatively raise the issue at this critical juncture constituted, in the view of this Court, a waiver of any right to later complain of the trial court’s failure to undertake a punitive damages inquiry.

¶ 17. As to the alternative argument that the failure to proceed on punitive damages was plain error that this Court should consider even if we are convinced that it was not proeedurally preserved for appellate review, we note that the plain error doctrine contemplates two basic concepts. A party is protected by the plain error rule when (a) he has failed to proeedurally preserve an alleged error for appellate review but (b) the appellate court concludes that a substantial right of the party is affected by the error. State Highway Com’n of Miss. v. Hyman, 592 So.2d 952, 957 (Miss.1991). In the case before us, the jury verdict for actual damages was intended to fully redress the plaintiff for all actual damages as shown by the proof. The recovery of punitive damages is not a fundamental right belonging to a plaintiff in civil litigation. Rather, it is a means by which the public interest is served by sanctioning a party for particularly offensive conduct both as punishment to the offending party and as an object lesson to others to avoid similar conduct in the future. American Life Ins. Co. v. Hollins, 830 So.2d 1230, 1243(¶ 50) (Miss.2002). No fundamental right belonging peculiarly to Brown is protected in the matter of a possible assessment of punitive damages since he has already been made whole by the verdict for actual damages, which is the declared purpose of a civil proceeding for damages. Id.

¶ 18. Because Brown has been made whole insofar as it lies within the power of the judiciary, we do not think the failure of the trial court to inquire into the appropriateness of punitive damages in the circumstances of this case raises an issue regarding the denial of fundamental rights of a litigant that is necessary to consider as alleged error under the plain error doctrine. We, therefore, find this alternative argument to be without merit.

III.

Credit for Settlement with Another Party

¶ 19. Brown’s complaint alleges that all named defendants, including those with whom a pretrial settlement was reached that included the payment of the sum of $2,200, were acting in concert as to all the material factual allegations supporting his various theories of recovery. The complaint specifically states that the defendants should be held jointly and severally liable for those damages arising from their actions as outlined in Brown’s pleadings.

¶ 20. It has long been the practice in Mississippi that, when there are multiple potential defendants liable on a claim and a settlement is reached with some, but not all, defendants, those defendants who proceed to trial and suffer a judgment against them are entitled to credit on that judgment for those amounts received in settlement from entities not party to the litigation. Southeastern Med. Supply, Inc. v. Boyles, Moak & Brickell Ins., Inc., 822 So.2d 323, 331-32 (¶¶ 32-33) (Miss.Ct.App.2002). This practice has its origins in the notion that, though there may be multiple parties potentially liable for the plaintiffs injuries, a plaintiff is entitled to only one recovery of his damages. Dawson v. Townsend & Sons, Inc. 735 So.2d 1131, 1142(¶ 47) (Miss.Ct.App.1999).

¶ 21. By legislative enactment, the procedure for apportioning out monetary responsibility has been modified in certain instances where the plaintiff alleges that “fault” for his injuries is attributable to multiple entities. Miss.Code Ann. § 85-5-7 (Rev.1999). In such circumstance, the law now contemplates that the jury will apportion liability on a formula that includes consideration of the percentage of “fault” attributable to the various entities, whether or not some particular entity is a party to the litigation and without regard to the terms of any pretrial settlement. Miss.Code Ann. § 85-5-7(2) and (3) (Rev. 1999). However, for purposes of Section 85-5-7, the term “fault” is a defined term that specifically excludes “any tort which results from an act ... committed with a specific wrongful intent.” Miss.Code Ann. § 85-5-7(1) (Rev.1999). Section 85-5-7(6) preserves the common law concept of joint and several liability “on all who consciously and deliberately pursue a common plan or design to commit a tortious act...Miss. Code Ann. § 85-5-7(6) (Rev.1999).

¶ 22. Based on the nature of Brown’s claims, the proof appearing in the record, and the jury’s verdict, we conclude this to be a case governed by Section 85-5-7(6) and, thus, not one that requires consideration of an apportionment of liability among the various alleged tortfeasors. Such a determination leaves us satisfied that the trial court properly applied longstanding principles of law regarding credits against the judgment designed to prevent multiple recoveries for the same injury.

¶ 28. Brown argues that the credit is inappropriate and cites as authority this Court’s Dawson v. Townsend & Sons, Inc. decision. That case dealt with the issue of whether there should be an apportionment of liability between one alleged tortfeasor whose liability was based on “fault” as defined in Section 85-5-7(1) of the Mississippi Code and another alleged tortfeasor said to have acted deliberately. Dawson, 735 So.2d at 1133. That issue has nothing to do with the case now before us, since we deal with multiple defendants, all alleged to have acted purposely and in concert to injure Brown by improperly depriving him of the rightful possession of his vehicle and forcing him into a situation where he felt compelled to purchase a replacement vehicle on terms he could not afford. In situations where the allegation is that the offending parties have acted with “specific wrongful intent,” Section 85-5-7 does not require an apportionment of liability. Instead, the statute preserves the common law principle that “all who consciously and deliberately pursue a common plan or design to commit a tortious act” shall be jointly and severally liable for the damages occasioned by that plan. Miss.Code Ann. § 85-5-7(6) (Rev.1999).

¶ 24. Brown attempts to argue factually that the settling defendants, no matter what the motivation for tendering a sum to settle the pending claims against them, could not logically have been a party to the act of conversion that was the foundation for the jury’s verdict. He apparently means to contend that, on that basis, the settlement sums must have been based on damages arising from one of the other causes of action asserted in the complaint, thereby rendering it inappropriate to reduce this judgment, which is based solely on the theory of conversion.

¶ 25. There is certainly no factual basis to reach such a conclusion on the record before us. The complaint asserted joint and several liability against all defendants as to all the various claims and there is nothing in the record that would permit the settlement funds to be earmarked solely to one of the other alternate theories of liability originally advanced in Brown’s complaint.

¶ 26. While there can be no doubt that North Jackson Nissan and Graham were jointly and severally liable for the entire verdict returned by the jury based on common law principles as preserved and carried forward in Section 85-5-7(6), there can also be no doubt that nothing in Section 85-5-7 has modified the common law principle that an injured party is entitled to but one recovery on his claim. Since this ease was submitted to the jury on instructions to return a verdict reflecting the entirety of Brown’s damages in conversion, the defendants suffering a judgment in that amount are entitled to credit for sums already received in partial satisfaction of that same claim by way of settlement with others alleged to have participated in causing the injury. Southeastern Med. Supply, 822 So.2d at 331-32. It was not error for the trial court to grant such credit upon proper motion that it do so.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING AND SOUTHWICK, P JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Joel BRITT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01885-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.
    Joel Britt (pro se), attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   BRIDGES, J.,

for the court.

¶ 1. Joel Britt pled guilty to accessory after the fact of burglary on January 11, 1999. Britt was given three years of supervised probation, and a five year suspended sentence. On September 27, 2000, a hearing was held in which Britt’s supervisory probation was revoked for testing positive for marijuana and cocaine use, and for being indicted for three sales of marijuana. It was at this time that Britt’s suspended five year sentence was imposed. On August 26, 2002, Britt filed for post-conviction relief which the trial court later denied. Britt then filed a notice of appeal to this Court. On December 30, 2002, the court issued a deficiency notice to Britt but later gave him an extension to file his brief. On January 6, 2003, well within the extension period, Britt submitted his post-conviction relief petition with the trial court, apparently as a substitute for his appellate brief. The State makes an issue out of whether Britt’s motion should be treated as an appellate brief, however, this Court, finding that the Appellant is pro se, has decided to grant lenience on this procedural matter and will decide Britt’s issue on the merits.

STATEMENT OF THE ISSUE

WHETHER BRITT WAS SUBJECTED TO DOUBLE JEOPARDY.

ANALYSIS

¶ 2. Britt claims that he was denied his right against double jeopardy by the reinstatement of his original sentence. Britt complains that there was no reduction of his five year sentence for the period of time during which he was on probation. Britt asserts that the time he was on probation should count as a sentence previously served, and there should be a corresponding reduction of his five year sentence.

¶ 3. This Court, in Brunson v. State, 796 So.2d 284, 288(1115) (Miss.Ct.App.2001), held that it was not a violation of double jeopardy to sentence a prisoner to his original sentence after his probation was revoked. In that case, Brunson was given a four year and three month sentence, after his probation was revoked. Id. at 287(1112). He too complained that this suspended sentence was being “added” to the time he had been on probation. Id. This Court pointed out that time spent on probation is not to be considered part of a prisoner’s sentence.

Only if the Court attempts to administer a longer sentence than what was originally conferred upon the defendant will it be considered double jeopardy. However, reinstating the suspended sentence first levied upon the defendant is proper and is not in violation of the double jeopardy clause as Brunson would suggest.

Id. at 287(¶ 14) (citations omitted).

¶4. Also in Carter v. State, 754 So.2d 1207, 1209(¶ 5) (Miss.2000), the Mississippi Supreme Court stated that “probation,” as was given in the instant case, was not to be construed as part of a prison sentence and was therefore not subject to the “totality” of the sentence concept as stated in Mississippi Code Annotated section 47-7-34 (Rev.2000).

Miss.Code App. § 47-7-34 (Supp.1999) provides, in pertinent part, that “no part of the time that one is on probation shall be considered as any part of the time that he shall be sentenced to serve.”

Id. at 1209(¶ 7).

¶ 5. The record reflects that Britt’s original five year sentence was reinstated only after his three year supervised probation had been revoked. The reason for the revocation was Britt’s indictment for three sales of marijuana and for testing positive for marijuana and cocaine use. Based on the aforementioned caselaw, the reinstatement of the suspended sentence did not amount to double jeopardy. Therefore, this issue lacks merit.

¶ 6. THE JUDGMENT OF THE WEBSTER COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WEBSTER COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Glenn WHEELER, Appellant, v. MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY PERMIT BOARD, Columbus Light and Water Department and Lone Oak Energy Center, LLC, Appellees.
    No. 2002-CP-01636-COA.
    Court of Appeals of Mississippi.
    Sept. 30, 2003.

      Glenn Wheeler, Appellant, pro se.
    Jeffrey Carter Smith, Columbus, John A. Crawford, Chuck D. Barlow, Leann Mercer, Jackson, Kelli Marché Mims-Do-well, Attorneys for Appellee.
    Before SOUTHWICK, P.J., THOMAS and IRVING, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Glenn Wheeler appeals the decision of the Lowndes County Chancery Court dismissing his appeal of the granting of certain permits issued by the State Department of Environmental Quality Permit Board. The chancellor dismissed the appeal for failing to comply with statutory appeal requirements. On appeal, Wheeler assigns two issues:

I. THE APPELLANT FOLLOWED THE INSTRUCTIONS PROVIDED BY THE MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY, AS OUTLINED IN MISSISSIPPI CODE ANNOTATED REGARDING THE PROPER PROCEDURES FOR FILING THE APPEAL WITH THE LOWNDES COUNTY CHANCERY COURT OF THE PERMIT BOARD DECISION OF APRIL 9, 2002.
II. THE APPEAL OF THE MDEQ PERMIT BOARD DECISION WAS FILED ON APRIL 30, 2002. THE CHANCERY COURT, HONORABLE JUDGE LANCASTER PRESIDING, RULED IN TWO SEPARATE ORDERS WHICH WERE FILED AUGUST 29, 2002. THE COURT RULED THAT A PROCEDURAL ERROR WAS MADE BY MDEQ AND AS SUCH RULED THAT ONLY ONE BOND WAS ISSUED FOR ONE OF THE APPEALED PERMITS AND THAT SIX SEPARATE BONDS ARE REQUIRED, ONE FOR EACH OF THE SIX PERMITS APPEALED.

FACTS

¶ 2. After public notice and comment was had, the Mississippi Department of Environmental Quality Permit Board (Board) granted six permits for various environmentally involved projects on November 18, 2001. Five of these permits were issued to Lone Oak Energy Center, a corporation (Lone Oak), and one to the City of Columbus, Light and Water Department (the City).

¶ 3. Glenn Wheeler, a private citizen, opposed the issuance of all six permits and sought a full evidentiary hearing before the Permit Board as is provided for by statute. The hearing was duly held and on April 9, 2002, the Board determined the permits had been properly issued. Wheeler was notified of this decision in writing the following day by Kelli Dowell, counsel for the Board. This letter informed Wheeler of his right to appeal upon the filing of notice and receipt of a $100 cost bond. The letter also enclosed a copy of the statute pertinent to appeals of agency decisions.

¶ 4. Wheeler decided to appeal, filed notice and deposited a $100 cashier’s check with the agency. Wheeler named only the Permit Board as a defendant but the permit holders, Lone Oak and the City, were permitted to intervene. Both Lone Oak and the City filed motions to dismiss on a variety of grounds, most of which were found to be baseless. The chancellor did, however, grant the City’s motion to dismiss for lack of jurisdiction due to Wheeler’s failure to timely file the required cost bond as to the City’s permit.

¶5. The chancellor also dismissed the appeal of four of the five permits issued to Lone Oak, finding that, under the applicable statute, Wheeler was required to file a $100 cost bond for each permit appealed, which he did not do, within the mandated twenty days. The chancellor also found that the cashier’s check deposited with the agency was incorrect-the statute calls for a cash bond. However, after noting this deficiency, the chancellor permitted the cashier’s check to suffice for bond on appeal of one permit only, the first one Wheeler happened to list on his notice of appeal. The chancellor later issued a judgment affirming the issuance of that permit.

ANALYSIS

¶ 6. Wheeler does not appeal the chancellor’s decision on the only permit upon which judgment was rendered. Rather, Wheeler challenges the propriety of the dismissal of the other five. This is a question of law of which we undertake de novo review. Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss.1995).

¶ 7. This case includes the unusual feature of one appellee arguing in favor of the appellant and another appellee taking issue with that. The Board argues the chancellor erred in finding Wheeler needed to post bond on each permit he sought to appeal. The Board combined into a single hearing all six permits because of the interrelated nature of, and objections to, the permits as a group. Although six permits were at issue, the Board considers the hearing to have produced only two appealable decisions, one for each interested permittee, Lone Oak and the City. This is, according to the Board, the standard procedure for handling these matters. Thus, the lower court erred in finding six bonds needed to be posted when only two decisions were rendered, two decisions could be appealed and two bonds were required.

¶ 8. Lone Oak, joined by the City, argues this is an improper interpretation of the Permit Board’s enabling statute in clear contradiction of the plain language of the statute, thereby exceeding its authority-

¶ 9. The statute at issue reads:

Any person who is aggrieved by any decision of the Permit Board issuing, reissuing, denying, revoking or modifying a permit after a formal hearing may appeal that decision ... to the chancery court of the county of the situs in whole or in part of the subject matter. The appellant shall give a cost bond of not less than One Hundred Dollars ($100) nor more than Five Hundred Dollars ($500), to be fixed by the Permit Board, who shall forthwith certify the filing of the bond together with a certified copy of the record of the Permit Board in the matter to the chancery court....

Miss.Code Ann. § 49-17-29(5)(b) (Rev. 1999). Appeals must be taken within twenty days of the Board’s decision after a formal hearing. Miss.Code Ann. § 49-17-29(4)(c) (Rev.1999).

¶ 10. Lone Oak and the City argue that this statute’s reference to “a permit” means that each permit must be treated individually with respect to the remainder of the language. We disagree with this extremely narrow reading. Lone Oak’s interpretation would require the Permit Board to hold separate hearings on each and every permit issued and thereafter challenged, regardless of the unity of issues or parties. Evidence would need be duplicated repeatedly in order to create a separate record for each permit. Nowhere is that more apparent than in the case before us where the challenge to all six permits was made by the same person and on the same grounds. The exponential increase in cost, wasted manpower and resources to this public agency cannot be justified.

¶ 11. An agency’s interpretation of its own enabling statute is to be given deference. Gill v. Miss. Dept. of Wildlife Conservation, 574 So.2d 586, 593 (Miss.1990). This is due to the practical understanding that an agency far better understands its daily operations needs than the judiciary ever could. Id. With this in mind, the Permit Board was statutorily granted the authority to adopt rules of practice and procedure governing its proceedings that are consistent with the commission’s regulations. Miss.Code Ann. § 49 — 17—29(3)(d) (Rev.1999). However, where the agency’s interpretation is contrary to the statute’s language, we grant no such deference. Gill, 574 So.2d at 593.

¶ 12. The agency has created its operating procedures to incorporate what it believes to be the most efficient method of dealing with challenges to multiple permits issued to a single permittee. We cannot find fault with this method, nor can we find any violation of statute unless we read it in an extremely narrow fashion and give it meaning the legislature could not possibly have intended.

¶ 13. That does not end our inquiry. Under any of the proffered interpretations, Wheeler’s appeal was flawed. We must consider whether what he did do was sufficient to preserve his claims for appellate review. We find that it was.

¶ 14. Appeals from state agency decisions are first had to either chancery or circuit court, depending upon the enabling statute. The supreme court has previously held that, at least with respect to matters of mandatory or discretionary dismissals, the Mississippi Rules of Appellate procedure apply to appeals from county to circuit court. Van Meter v. Alford, 774 So.2d 430, 432(¶ 3)(Miss.2000). We have also found the same applicable in appeals from agency decisions to circuit court. Bowling v. Madison Co. Bd. of Supervisors, 724 So.2d 431, 442 (¶ 51) (Miss.Ct.App.1998).

¶ 15. After a thorough review of the various statutes and rules applicable to situations such as this and the supreme court’s interpretation thereof, we found the purpose of imposing some appellate rules on trial courts acting as appellate courts carried out the legislative intent that errors in matters of form will not terminate a court’s ability to consider a claim. Id. at ¶ 50, 724 So.2d 431. We can find no logical basis for refusing to apply the same policy to appeals from agencies to chancery courts, as well. Application of certain appellate rules to trial courts under these circumstances is particularly apt, not only to carry out legislative intent, but for lack of any other rule to guide chancery courts.

¶ 16. Under the appellate rules of procedure, the only mandatory dismissal is for failing to timely file notice of appeal. M.R.A.P. 2(a)(1). All other failings are reviewed as potential discretionary dismissals. M.R.A.P. 2(a)(2).

¶ 17. All parties agree that Wheeler timely filed his notice of appeal and the imperfection lies with the bond he attempted to post. As such, this was a discretionary dismissal. The chancellor dismissed the appeals by finding the court lacked jurisdiction to hear the matter for failing to properly post bond. Mississippi Rule of Appellate Procedure 2(a)(2) requires the clerk of the court to give written notice to the party in default notifying him of the nature of the default and fourteen days in which to correct the deficiency before granting the dismissal. Consistent with this rule and its application here to chancery courts, we find that Wheeler should be given an opportunity to amend his appeal to conform with the remainder of this opinion as necessary.

¶ 18. The dismissal order notes that Wheeler was made aware of the bond problem when served with the briefs of the appellee. That is not sufficient. Arguments in briefs are merely that; they are not directions of the court. We note also that the case relied upon by the lower court to find it lacked jurisdiction for failing to post sufficient bond in the time allowed was specific to a statute which required not only notice but perfection of an appeal within a specified period of time. Wood v. Warren, 193 So.2d 123, 124 (Miss.1966). The Permit Board statute carries no such requirement.

¶ 19. We reverse and remand to the chancery court to allow Wheeler the opportunity to correct his deficiency. The cashier’s check previously deposited with the Permit Board and accepted as adequate for a cash bond was applied to one of the Lone Oak permits. That permit has been adjudicated, was not appealed, and is no longer subject to review. However, the substituted bond will be sufficient as to the four remaining Lone Oak permits. Wheeler need not post another bond. Should he wish to appeal the permit issued to the City, Wheeler will be required to post a second bond, in conformance with the Board’s characterization of the number of decisions issued and subject to appeal.

¶ 20. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

McMILLIN, C.J., KING AND SOUTHWICK, P JJ., BRIDGES, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.