author: BRIDGES, J., McMILLIN, C.J.,

text:
    Winston HARRIS, Appellant v. Janna D. HARRIS, Appellee.
    Nos. 2000-CA-00762-COA, 2001-CA-01024-COA, 2001-CA-01457-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied May 18, 2004.
    Certiorari Denied Aug. 5, 2004.

      John R. Reeves, attorneys for appellant.
    James A. Becker, Susan Latham Stef-fey, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   BRIDGES, J.,

for the court.

¶ 1. This appeal wás consolidated with two other appeals involving the same parties; however, this Court’s ruling in this appeal renders all other consolidated appeals moot. The only issues that will be addressed are those contained in the immediate appeal. The first appeal is from a final judgment entered March 28, 2000, and the other two appeals are from a May 1, 2001 judgment of the Chancery Court of the First Judicial District of Hinds County styled “Judgment — Modifying Former Judgments' and Finding Defendant [appellant Janna Harris] in Willful Contempt of Court,” and from a directly related judgment of that same court entered July 25, 2001.

¶ 2. In this appeal, the Court will address not only Winston’s four issues but also Janna’s four issues stated in her brief/ cross-appeal and in so doing the Court will combine certain issues from both appeals for the sake of practicality and clarity. These issues are stated verbatim.

STATEMENT OF THE ISSUES IN WINSTON’S APPEAL

I. WHETHER THE CHANCELLOR ERRED IN NOT ORDERING JANNA TO REFUND WITH INTEREST $50,000 WINSTON HAD PAID HER PURSUANT TO COURT ORDER FOR HER DIVORCE ATTORNEY’S FEES BUT WHICH SHE FAILED TO PAY TO HER DIVORCE ATTORNEYS?

II. WHETHER THE CHANCELLOR ERRED IN NOT HOLDING JANNA IN CIVIL AND CRIMINAL CONTEMPT OF COURT?

III. WHETHER THE CHANCELLOR ERRED IN NOT TERMINATING WINSTON’S ALIMONY OBLIGATION TO JANNA?

IV. WHETHER THE CHANCELLOR ERRED IN NOT ORDERING THE ALIMONY REDUCTION RETROACTIVE TO APRIL 13, 1998, THE DATE THE MOTION TO MODIFY WAS FILED?

JANNA’S CROSS-APPEAL ISSUES

I.THE ISSUE OF JANNA’S ’ PAYMENT OF ATTORNEY’S FEES AND COSTS TO HER FORMER ATTORNEYS, WILLIAM WRIGHT AND ROBERT KING IS NOT PROPERLY BEFORE THIS COURT.

II. THE CHANCELLOR CORRECTLY REFUSED TO HOLD JANNA IN CIVIL OR CRIMINAL CONTEMPT OF COURT REGARDING HER PAYMENT OF ATTORNEY’S FEE.

III. THE CHANCELLOR ERRED IN REDUCING JANNA’S, ALIMONY FROM $4,000 PER MONTH TO $1,600 PER MONTH AND RE-DUCIÑG CHILD SUPPORT FROM $2,020 PER MONTH TO $1,450 PER MONTH AS WINSTON FAILED TO PROVE A MATERIAL CHANGE OF CIRCUMSTANCES WARRANTING ANY REDUCTION, MUCH LESS SUCH A DRASTIC ONE.

IV. THE COURT ERRED IN REDUCING JANNA’S. ALIMONY AND TREVOR’S CHILD SUPPORT IN THE FIRST INSTANCE, AND COMPOUNDED THAT ERROR BY MAKING THE REDUCTION RETROACTIVE.

V. THE COURT SHOULD NOT HAVE HEARD WINSTON’S PETITION FOR MODIFICATION AS WINSTON WAS- IN SUBSTANTIAL ARREARS IN ALIMONY AND CHILD SUPPORT WHEN HE FILED HIS PETITION FOR MODIFICATION AND ON THE DATE OF THE HEARING ON MODIFICATION. FOR THESE SAME REASONS, THE COURT ERRED IN NOT HOLDING WINSTON IN CONTEMPT OF COURT.

VI. JANNA SHOULD BE AWARDED ATTORNEYS’ FEES AND COSTS FOR DEFENDING WINSTON’S MOTIONS AND THIS APPEAL.

FACTS

¶ 3. Winston Harris and Janna Harris were married on June 4, 1984, in Houston, Texas. During their marriage, they had one child, Trevor, who was seven years old at the time of the divorce. Throughout the parties’ separation and after their divorce, Janna and Trevor continued to reside in the marital home. After a lengthy trial, the court entered a judgment of divorce, dated November 3, 1994, in favor of Janna, finding Winston guilty of uncon-doned adultery and awarding Janna full legal custody, care and control of Trevor.

¶ 4. Pursuant to the final judgment, Janna was awarded $4,000 per month periodic alimony and $1,000 per month child support. Initially, Janna’s alimony was to terminate on the occurrence of any of the following: the minor child’s emancipation; Janna’s employment or remarriage; once Janna and Trevor no longer resided in the marital home; or a court-adjudicated material change in circumstances. Janna was to be solely responsible for the mortgage payment, taxes, and insurance on the marital home, but on the happening of any of the aforementioned events, the equity in the marital home was to be divided between the parties (the home to be apparently sold and equity divided). Both parties filed numerous post-trial motions, complaining about aspects of the final judgment including, but only naming a few, motion for a new trial and/or amendment of findings of fact and conclusions of law, motion for a new trial for consideration and/or to alter or amend judgment, motion for citation for contempt, motion to amend for reconsideration to alter or amend the judgment, motion to strike motion for reconsideration of plaintiff/counter-defendant, motion to recuse judge, and a motion for modification and alternatively for stay pending appeal and other relief.

¶ 5. On January 27, 1995, the chancellor entered an order on Janna’s motion for modification, or alternatively, for stay pending appeal and other relief, and on Winston’s counter-motion for modification, for sanction and for other relief. In this order, the court clarified the periodic alimony provisions of the final judgment and neither party appealed from this order.

¶ 6. Over the next several years, numerous motions were filed by Janna against Winston for contempt and other relief to obtain child support, alimony, and other awards Winston was required to pay pursuant to the final judgment. Simultaneously, Winston filed numerous motions for modification. There was an opinion and judgment dated September 8, 1995, a judgment dated March 26, 1996, and an order dated November 14,1996.

¶ 7. On April 13, 1998, Winston again moved for modification of his child support and alimony obligations, claiming a decrease in his income. On April 24, 1998, Winston amended his motion for modification and then filed a second amended motion on February 11, 1999. In response to Winston’s motion for modification, the court initially reduced Janna’s alimony from $4,000 per month to $2,500 per month, retroactive to August 1, 1999, even though the judgment was entered November, 9,1999.

¶ 8. On January 19, 2000, in response to more post-trial motions, the chancellor further reduced Winston’s obligations. The court reduced Janna’s alimony to $1600 per month and her child support to $1,200 per month plus one half of Trevor’s private school tuition costs ($250 per month). Additional facts will follow in the opinion.

¶ 9. Janna and Winston now appeal to this Court.

STANDARD OF REVIEW

¶ 10. “In domestic relations cases the scope of review is limited by the substantial evidence/manifest error rule. This Court may reverse a chancellor’s findings of fact only when there is no substantial credible evidence in the record to justify his findings. Our scope of review in domestic relations matters is limited under the familiar rule that this Court will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or if the chancellor applied an erroneous legal standard.” Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002) (citations omitted).

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN NOT ORDERING JANNA TO REFUND WITH INTEREST $50,000 WINSTON HAD PAID HER PURSUANT TO COURT ORDER FOR HER DIVORCE ATTORNEY’S FEES BUT WHICH SHE FAILED TO PAY TO HER DIVORCE ATTORNEYS.

II. WHETHER THE CHANCELLOR ERRED IN NOT HOLDING JANNA IN CIVIL AND CRIMINAL CONTEMPT OF COURT REGARDING HER PAYMENT OF ATTORNEY’S FEES.

¶ 11. Winston claims that the court should order Janna to refund Winston the money she fraudulently kept and did not turn over to her divorce attorneys as required by the court in the divorce judgment. Winston also claims that Janna should be held in criminal contempt of court for the misappropriation of $50,000 in attorney’s fees for her own use and benefit. Further, he claims that Janna should have disclosed to the court that she felt she did not owe or would not pay her divorce attorneys. Instead, she kept all the money for herself and-defied the court order by not using the money to pay her divorce attorneys. Further, Winston claims that if Janna is allowed to keep his money with no repercussions she is unjustly enriched with a pure windfall.

¶ 12. To collect under an unjust enrichment or quasi-contract theory, the claimant must show “there is no legal contract but ... the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain, but should deliver to another.” Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss.1987) (quoting Hans v. Hans, 482 So.2d 1117, 1122 (Miss.1986)).

¶ 13. The final judgment of divorce entered on November 3, 1994, by Chancellor Dillard, awarded Janna the sum of $ 50,-000, which represented one half of the attorney’s fees and court costs incurred by Janna as a result of Winston’s actions at that time. In this judgment, the chancellor ordered that Janna shall pay the following fee outstanding:

1) To Robert W. King, the sum of six thousand one hundred ninety-nine dollars and 92/100 ($ 6,199.92).
2) To Shirley Payne, the sum of two thousand one hundred seventy-five dollars ($ 2,175); and
3) The difference between half the amount paid by Winston to Mr. Moore ($ 50,000) and the sums paid to Robert Bang ($ 6,199.92) and Shirley Payne ($ 2,175) to William Wright ($ 41,625.08).

¶ 14. These attorneys made a claim but later withdrew or dismissed it and since the record before us gives us no evidence in order to resolve this dilemma this Court has no way of knowing the circumstances surrounding that action. Either the attorneys were paid or they were satisfied in some manner or perhaps they just decided not to pursue the claim. Since these attorneys were not parties to this appeal, the dispute and claim is over with once and for all. “Under traditional appellate procedure, any error not first brought to the attention of the trial court is not preserved for appeal and is thereby waived.” Bishop v. State, 771 So.2d 397, 400(¶ 14) (Miss.Ct.App.2000). The result is that it is waived or satisfied therefore, accord and satisfaction applies. It is well established and held that accord and satisfaction consists of four basic requirements. “First, something of value must be offered in full satisfaction of demand, secondly, the offer must be accompanied by acts and a declaration which amount to a condition that if the thing offered is accepted, it is accepted in satisfaction, thirdly, the party offering the thing of value is bound to understand that if he takes it, he takes it subject to the conditions, and fourthly, the party must actually accept the item offered.” Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 753-54(¶ 16) (Miss.2003).

¶ 15. We hold that since attorneys who would have had standing and who had the rights to appeal did not join in this appeal, then we have to assume that there was accord and satisfaction or they simply waived any such rights, and they, nor anyone acting for them, have no standing here.

¶ 16. It is interesting that later on in the ease, nearly six years later, (and allegedly at the urging of Winston’s most recent attorney) this issue was brought up again before the second chancellor assigned to this case, Chancellor Singletary. William R. Wright and Robert W. King sought to intervene in Winston’s contempt proceeding against Janna. On August 10, 1999, a hearing was conducted regarding the motion to intervene for the purpose of obtaining attorney’s fees from Janna. On November 9, 1999, in his opinion and order, the chancellor denied their motions to intervene and neither Mr. Wright nor Mr. King appealed from the chancellor’s decision. The failure of the attorneys to appeal further strengthens the view regarding their standing and their rights to appeal. The attorneys had a right to appeal and they failed to pursue that cause of action. If those attorneys had joined in this appeal, then one of the parties may have had a claim, giving Winston standing here.

¶ 17. For the aforementioned reasons, we find that Janna Harris was not unjustly enriched and also that Winston has no standing to appeal for the attorneys involved. See Mauck v. Columbus Hotel Co., 741 So.2d 259, 264 (¶¶ 12-13) (Miss.1999); Miss.Code. Ann. § 11-3-37 (Rev.2002).

III. WHETHER THE CHANCELLOR ERRED IN NOT TERMINATING WINSTON’S ALIMONY OBLIGATION TO JANNA.

¶ 18. Winston argues that the chancellor erred in not further reducing or terminating his alimony obligations to Janna because of the substantial increase in Janna’s income subsequent to the divorce proceedings and Winston’s substantial income decrease. Janna claims that the chancellor erred in reducing alimony and child support as Winston failed to prove a material change in circumstances warranting any reduction.

¶ 19. The law in Mississippi is well settled; alimony and child support obligations are subject to modification only where there has been a material change in circumstances not reasonably anticipated when the divorce decree was entered. See Yancey v. Yancey, 752 So.2d 1006, 1009-10(¶ 9) (Miss.1999).

¶ 20. After reviewing the record, and in accordance with the standard of review stated above, we find that the chancellor did not err in reducing Winston’s support obligations. At the August 1999 hearing, there was evidence presented that indicated that Winston undertook a new job approximately a year and a half before that date, after being fired from his previous employment. In his order, the chancellor found that Winston’s present annual income was approximately $100,000: $80,000 payable in salary and another amount as incentive pay, based on his performance, but which is a minimum of $20,000. The chancellor also found that Janna had improved her circumstances since the final judgment was entered. At the time of the final judgment, Janna did not work outside the home, but she is now professionally trained and operates a successful 'counseling and therapy practice.

¶ 21. Upon these findings, the chancellor concluded that there had been a material change in circumstances since the entry of the final judgment. We hold that the chancellor did not abuse his discretion in finding a material change in circumstances, and therefore, reducing Janna’s alimony. This issue is without merit.

¶ 22. On a final note, the chancellor found that Winston had been less than forthcoming with information concerning his financial information and income. In the case of Smith v. Smith, 429 So .2d 588, 588-89 (Miss.1983), the Mississippi Supreme Court held that a husband’s attempts to conceal income, as Winston has apparently attempted to do here, should not be condoned and the trial court should be reversed and the court should consider testimony concerning Winston’s actual income.

IV. WHETHER THE CHANCELLOR ERRED IN NOT ORDERING THE ALIMONY REDUCTION RETROACTIVE.

¶ 23. Winston contends that the chancellor erred in not ordering the alimony reduction retroactive to April 13, 1998, the date Winston filed his motion to modify instead of the date given, August 1, 1999. Janna claims that given that the court reduced her alimony award, the reduction should have been made effective no earlier than the date of the order, November 9,1999.

¶ 24. On this point, the court certainly had authority to make the modification effective the date of the petition. See McHann v. McHann, 383 So.2d 823, 826 (Miss.1980). However, that authority was discretionary and we perceive no basis for a conclusion that the chancery court abused its discretion.

V. WHETHER THE CHANCELLOR ERRED IN HEARING WINSTON’S PETITION FOR MODIFICATION.

¶ 25. Janna asserts that the chancellor should not have heard Winston’s petition for modification as Winston was in substantial arrears in alimony and child support when he filed his petition for modification. And for these same reasons, Janna claims that the chancellor erred in not holding Winston in contempt of court.

¶ 26. Winston initially moved to modify his alimony and child support obligations on April 13, 1998. At the time of filing his motion, Winston was in arrears for child support and alimony of over $9,000. Less than a month after filing the petition, Winston was still in substantial arrears of over $10,000. The court, in April 1999, found Winston in contempt of court for failing to meet his obligations.

¶ 27. It is well settled in Mississippi that modification should not be allowed where the petitioner is not in the proper position to seek relief from the court. “He who doeth fraud, may not borrow the hands of the chancellor to draw equity from a source his own hands hath polluted.” Billy G. Bridges & James W. Shel-son, Griffith Mississippi Chancery Practice § 42 (2000 ed.), citing Thigpen v. Kennedy, 238 So.2d 744 (Miss.1970) (equitable maxim that a litigant must come into equity with clean hands). No person as a complaining party can have the aid of a comb of equity when his conduct with respect to the matter in question has been characterized by willful inequity. O’Neill v. O’Neill, 551 So.2d 228, 233 (Miss.1989).

¶28. The Mississippi Supreme Court stated that:

[A] former husband may not petition for modification of original divorce decree providing for alimony and child support payments without showing either that he has performed it or that his performance has been wholly impossible.

Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967); see, e.g., Taylor v. Taylor, 348 So.2d 1341 (Miss.1977) (alimony should not be modified without a showing that the petitioner had fully performed or that his performance was “wholly impossible,” citing Kincaid v. Kincaid, 213 Miss. 451, 57 So.2d 263 (1952)); James v. James, 724 So.2d 1098, 1103-1104 (¶¶ 21-22). (Miss. 1998) (citing several cases for the proposition that one must have fully performed or show that full performance was impossible and must make such proof with particularity and not in general terms); Gambrell v. Gambrell, 644 So.2d 435, 441-442 (Miss.1994) (chancellor denied modification of child support decree where father was $20,000 in arrears).

¶ 29. In the case of Gregg v. Montgomery, 587 So.2d 928, 932 (Miss.1991), the Mississippi Supreme Court further found that because the record reflected that the husband in this case, Donnie, failed to offer substantial evidence (particular and not general), to support that he was financially unable to comply with the divorce decree so as to avoid paying arrears in child support and alimony; that he , had other bills to pay would not justify default and, he held a well-paying job after August 1986, that the findings made by the chancellor that Donnie should pay child support arrearage was correct.

¶ 30. In Poole v. Poole, the court became even more analytical,, finding that Mr. Poole having an $11,867 municipal bond, a life insurance policy with a net cash value of $6,000, a paid-for $19,000 automobile, and $155,000 in retirement funds, seemed to be enjoying the exact same lifestyle at the time of the hearing as he had prior to the divorce. Poole v. Poole, 701 So.2d 813, 818(¶22) (Miss.1997). The court in Poole, held that the lower court correctly found that Mr. Poole failed to demonstrate a material change in circumstances affecting his ability to pay child support. Id. In the present case, Winston was in substantial arrears when he first moved to modify child support and alimony at the time of the hearing on the motion for modification. By the time of the hearing, Winston, by his own admission, owed $36,000 in alimony and over $5,300 in child support. This was in spite of the fact that the court told Winston, during the April 1999 hearing, to maintain his performance bond payments and keep them current.

¶ 31. We are reversing on this issue and remanding for the chancellor to reconsider this matter by hearing testimony and making appropriate findings in connection therewith.

¶ 32. Upon remand and rehearing of this matter, the chancellor should consider allowing testimony from Winston concerning the alleged concealment of certain monies from the sale of his company, and from the sale of a home, and having sums of income greater than those at the time of the trial on the merits, as well as other income which he used to contribute to his voluntary retirement account, purchase season football tickets, pay American Express, and make a donation to the symphony, as allegedly referred to in Janna’s pleadings as well as in her brief. For Winston to be entitled to an action of modification, it must have been “wholly impossible” for him to meet his obligations, something he has yet to show.

¶ 33. Following the reasoning in Brand v. Brand, 482 So.2d 236, 237-38 (Miss.1986), should the chancellor find that Winston should be required to pay any arrears for alimony and child support then the chancellor should calculate all sums owed and require that same be paid to Janna as required by law. See also Fuhr v. Fuhr, 818 So.2d 1237, 1239(¶ 8) (Miss.Ct.App.2002); Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992).

¶ 34. We find that there is strong evidence to find that Winston may have been in contempt of court, that he is in substantial arrears in both alimony and child support, as well as, being guilty of other violations alleged by Janna. Consequently, we find that Winston has “unclean hands” and should not have been allowed to move forward with his motion for modification.

VI. WHETHER JANNA SHOULD BE AWARDED ATTORNEY’S FEES AND COSTS FOR DEFENDING WINSTON’S MOTIONS AND THIS APPEAL.

¶ 35. Janna claims that she does not have the ability to pay her legal fees and costs. Janna also argues that the trial court erred in requiring her to pay for additional designations to the record on appeal, because Winston, as the appellant, designated substantially less than the entire record on appeal.

An award of attorney’s fees in divorce cases is left to the discretion of the chancellor, assuming he follows the appropriate standards. The award of court costs is likewise entrusted to the sound discretion of the chancellor. The Mississippi Supreme Court has held that when a party is able to pay attorney’s fees, an award of attorney’s fees is not appropriate. However, where the record shows an inability to pay and a disparity in relative financial positions of the parties, there is no error in awarding attorney’s fees.

Bates v. Bates, 755 So.2d 478, 482(¶ 11) (Miss.Ct.App.1999) (citations omitted). Generally, unless the party who requests to be awarded an attorney’s fee can establish her inability to pay, the trial court ought not award that party an attorney’s fee. Jones v. Starr, 586 So.2d 788, 792 (Miss.1991); Martin v. Martin, 566 So.2d 704, 707 (Miss.1990).

¶ 36. . After reviewing the record, we found that Janna did seek attorney’s fees in her response to King and Spencer’s motion to intervene, but we do not find any testimony or other evidence to support that request nor did we find that the chancellor made any findings in connection therewith or order the same, a factor necessary in making such an award. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). It is also noteworthy that during oral arguments regarding this case, the Court asked for the location of the request for attorney’s fees, and at best, the attorney stated that she was not sure but that it was in the record somewhere.

¶ 37. Also this Court, in Lipsey v. Lipsey, 755 So.2d 564, 568(¶ 18) (Miss.Ct.App.2000) (quoting Newell v. Hinton, 556 So.2d 1037, 1043 (Miss.1990)), stated that “[a]n award of attorney’s fees in a contempt case is proper ... and the award of fees is largely entrusted to the sound discretion of the chancellor.” In contempt actions, “even if the contempt deals with domestic relations matters, a chancellor has the authority to make the prevailing party whole by awarding attorney’s fees without regard to the ability to pay.” Creel v. Cornacchione, 831 So.2d 1179, 1183-84(¶ 18) (Miss.Ct.App.2002).

¶ 38. Upon a rehearing of this matter, the chancellor should, in the event Winston is found in contempt, award appropriate attorney’s fees pursuant to law as provided in Lipsey. Additionally, the chancellor should, in the event Janna prevails in such hearing, consider awarding her costs, including any sustained by her as a result of being required to provide additions to the designation of the record supplemental to her appeal in the defense of her claim. See M.R.A.P. 11.

¶ 39. Therefore, we affirm as to issues I, II, III, and IV on direct appeal and I, II, III, and IV on cross-appeal and reverse and remand as to issues V and VI on cross-appeal. All other issues in this consolidated appeal are rendered moot by the resolution of those issues adjudicated herein.

¶ 40. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IN CAUSE # 2000-CA-762-COA IS AFFIRMED IN PART AS TO ISSUES I, II, III, AND IV ON DIRECT APPEAL AND REVERSED AND REMANDED IN PART AS TO ISSUES V AND VI ON CROSS-APPEAL CONSISTENT WITH THIS OPINION. THE JUDGMENTS OF THE HINDS COUNTY CHANCERY COURT ARE RENDERED MOOT IN 2001-CA-1024-COA AND 2001-CA-1457-COA. COSTS ARE ASSESSED AGAINST THE APPELLANT.

KING, P.J., THOMAS, LEE, AND MYERS, JJ., CONCUR. McMILLIN, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., IRVING, CHANDLER, AND GRIFFIS, JJ.

McMILLIN, C.J.,

CONCURRING IN PART, DISSENTING IN PART.

¶ 41. I concur with the result reached by the majority as to all issues except the matter of the $50,000 payment by Mr. Harris ordered by the chancellor for the explicit purpose of permitting Mrs. Harris to defray certain allegedly outstanding legal fees owed by her in connection with her representation in the divorce. The majority concludes that Mr. Harris, after having paid the $50,000 as ordered, lacks standing to assert a claim that Mrs. Harris subsequently failed to pay the money to her attorneys as specifically directed by the judgment. I disagree. It would be my view that (a) the acceptance by Mrs. Harris of the specified sum and (b) her subsequent failure to utilize the sum to defray the very expense that was the basis for the award combine to raise a legitimate issue of unjust enrichment that Mr. Harris had standing to assert.

¶ 42. That claim of unjust enrichment is an entirely different issue from the one sought to be asserted by Mrs. Harris’s former attorneys when they attempted to intervene in this proceeding to compel her to pay the money to them but were turned away by the chancellor. It is entirely possible, for any number of reasons, that Mrs. Harris might have a legitimate defense to the claims for compensation asserted by her former attorneys that would permit her to avoid payment to them, even had they been successful in their efforts to intervene in this proceeding. However, if the case ultimately proved to be that the fees were not owed, then there would have been no basis in law or in equity for her to assert the purported obligation as the basis for an award of attorney’s fees in her divorce proceeding.

¶43. I would reverse and remand on that issue with directions for the chancellor to determine what part of the $50,000 advanced by Mr. Harris was actually expended in satisfaction of the specific attorney’s fees enumerated in the chancellor’s order and to compel the return to Mr. Harris of any part of the $50,000 not so expended by Mrs. Harris under equitable principles of unjust enrichment. ¶ 43. Though Mr. Harris’s pleadings did not, in so many words, assert a claim based on unjust enrichment, I believe this to be an appropriate resolution of the underlying facts of this case based on Rule 54(c) of the Mississippi Rules of Civil Procedure, which provides, in part, that

every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled by the proof and which is within the jurisdiction of the court to grant, even if the party has not demanded such relief in his pleadings ....

M.R.C.P. 54(c).

SOUTHWICK, P.J., IRVING, CHANDLER, AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.

      . There are references in the record to many of the pleadings being motions for contempt, cross-motions to said motions, motions for modifications and cross motions thereto. Once a case falls within the Mississippi Rules of Civil Procedure, the terminology for pleading should comply with those rules. Rule 81(d)(l)(2)(3) applies in instances where such causes of action are filed. The comment to Rule 81(d)(3) clearly provides that such actions should be commenced by complaint or petition only and that actions by “motion” are not intended. Rule 81(f) provides for the applicable terminology of pleadings filed in the cases referred to in this footnote. Said pleadings should have been petitions, complaints, counterclaims, or cross-claims, whichever is appropriate. Additionally, there are references to motions to reconsider which are not provided for under the rules, rather Rule 59 provides for new trials in actions without a jury where the judge may reopen the judgment, take additional testimony, amend findings of fact and conclusions of law, or make new findings and conclusions and direct the entry of new judgment. We will continue to refer to the actions taken by the parties herein as they appear in the record to avoid confusion.

      . Case No.2000-CA-00762.

      . Case No.2001-CA-01024.

      . Case No.2001-CA-01457.


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Nell Anding PICKETT, Deceased. Kenneth Van Etten and Betty Pearl Van Etten, Appellants v. Harold Anding Johnson and Bruce Kirkland, Appellees.
    No. 2002-CA-01748-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied June 8, 2004.
    Certiorari Denied Aug. 5, 2004.

      Thomas H. Cassel, Brandon, Joe B. Moss, attorneys for appellant.
    Richard Manning Lingle, Don P. Lacy, Jackson, Ronald Henry Pierce, Oxford, attorneys for appellee.
    Before McMILLIN, C.J., BRIDGES AND THOMAS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. The case before the Court presents the question of the enforceability of a contract for sale of land entered into, but not finally closed, prior to the property owner’s death. Depending on the resolution of that issue, there is a possible second issue involving entitlement to the sales proceeds in light of the particular terms of the deceased property owner’s will relating to the property.

I.

Facts

¶ 2. Nell Anding Pickett was the owner of a tract of approximately 181 acres of land in Hinds County. On September 21, 1999, Pickett entered into a contract for the sale of that property to Bruce Kirkland. Under the terms of the contract, the actual sale was to close on or before December 15, 1999. It should be noted that the contract was executed, not by Pickett personally, but by her nephew, Harold Anding Johnson, acting under authority of a general power of attorney previously executed by Pickett on February 17, 1999. As the case stands before the Court in this appeal, there is no contention that the instrument granting the power of attorney to Johnson was invalid. Neither is there an assertion that the subsequent contract for the sale of the real estate executed by him for Pickett under authority of the power of attorney was ineffective at the time of execution.

¶ 3. After the contract was executed, but before the scheduled closing date, Pickett died. Her will, showing an execution date of March 26,1999, was admitted to probate in the Hinds County Chancery Court. It appointed Johnson as executor of the estate. Under the terms of the will, the 181 acre tract was devised to Kenneth and Betty Pearl Van Etten. Aside from a few additional specific bequests, the remaining bulk of the estate passed under a residuary clause to a number of Pickett’s nieces and nephew, including Johnson, the named executor.

¶ 4. Kirkland, as the purchaser under the sales contract, petitioned the chancellor to require the executor to carry out the terms of the contract. The Van Ettens opposed the motion on the ground that the contract lapsed when December 15, 1999, passed and the contract had not been closed.

¶ 5. The chancellor held that the contract, not being one for personal services, survived the death of the seller. The chancellor also found that, though Pickett’s attorney in fact was- no longer able to perform the contract on her behalf since the power of attorney was automatically revoked by operation of law at the time of Pickett’s death, the contract nevertheless remained enforceable against Pickett’s estate. The chancellor further found as fact that,the purchaser, Kirkland, was ready and able to perform his obligations under the contract and had, in fact, attempted to tender performance in advance of the contract deadline but that the sale was not consummated solely because of problems relating to the-proper probate of Pickett’s will, the result being that there was no representative duly authorized to perform for the estate at the relevant times. In that situation, the chancellor concluded that the contract remained enforceable and directed the executor to carry out the estate’s obligations as seller under the contract.

¶ 6. After the chancellor’s ruling, the Van Ettens filed a pleading alleging an alternative right under the terms of the will. Their alternate claim was essentially that, if the contract was in fact enforceable against the estate, then they were entitled to the sales proceeds on the theory that, upon probate of the will, they became the owners of the tract of the land even though their title was encumbered by the previously-existing contractual obligation to sell the property under the terms of the contract. Therefore, according to their theory, having been devised the land subject to the burden of the contract to sell; they were, by the same token, entitled to the benefits of that contract, i.e., the proceeds of the sale.

¶ 7. The chancellor rejected this alternate claim by the Van Ettens. The chancellor held that Pickett’s act of entering into a contract to sell the land after execution of the will acted as an ademption of the specific devise of the land. The chancellor relied on authority holding that, upon execution of a contract for the sale of the real property, there was an equitable conversion of the property whereby Pickett’s rights became personal property consisting essentially of the right to the proceeds of the sales contract. Thus,' rather than dying possessed of the land encumbered by a contract of sale, Pickett died owning a contractual right to the receipt of a certain sum of money. These sales proceeds were not the subject of a specific bequest under the terms of her will; therefore, the proceeds would pass under the residuary clause of the will rather than under the specific devise provisions to the Van Ettens contained elsewhere in the will.

¶ 8. The parties to this appeal include the Van Ettens as appellants and Kirkland, the purchaser under the contract of sale, as an appellee. Kirkland’s interest is confined to the initial issue raised in the appeal since, if the contract was deemed to have lapsed as the Van Ettens contend, he would be in the position of losing title to the real property. Johnson also appears as an appellee in his capacity as executor of the estate and as a residual beneficiary. Johnson makes common cause with Kirkland in asserting the validity of the land sale pursuant to the contract. His stake in the outcome of the appeal depends additionally on the resolution of the second issue dealing with the proper distribution of the sales proceeds. That interest arises out of the fact that he is one of the residual beneficiaries under the will so that, if the chancellor’s decision is affirmed in this appeal, his proportionate share of the residuary estate will be increased by the inclusion of the land sale proceeds in the residual estate.

II.

Issues Presented and Scope of Review

¶ 9. There appear to be no real disputed issues of fact in this case on the core considerations on which the proper outcome of the case must turn. The key issues presented may be summarized as follows: (a) did the contract lapse when it was not fully executed by the specific closing date of December 15, 1999, and (b) if the contract remained enforceable against the estate, did the contract, entered into prior to Pickett’s death, work an ademption as to the specific devise of that property to the Van Ettens in her previously-executed will even though the sale was not closed prior to her death or, alternatively, was there no ademption since Pickett still owned the property at her death, though her title was burdened by the provisions of the sales contract? The issues for resolution pose pure questions of law. In that situation, an appellate court is under no mandate to afford deference to the trial court’s determinations, but rather undertakes a efe novo review of the issues presented. Saliba v. Saliba, 753 So.2d 1095, 1098(¶ 11) (Miss.2000).

III.

Discussion

¶ 10. We will deal first with the argument that the sale itself was invalid because the contract had lapsed and ceased to be enforceable when the transaction was not completed by the contractually-mandated closing date of December 15, 1999. In considering this issue, we parenthetically observe that the fact the contract of sale was executed, not by Pickett herself, but by Johnson acting under a general power of attorney, has no effect on the resolution of this issue. A power of attorney, depending as it does on the consent of the grantor under the instrument, is can-celled immediately on the death of the grantor so that the attorney in fact has no further authority to act on behalf of the grantor. Clayton v. Merrett, 52 Miss. 353, 358 (1876); Restatement (Second) of Agency § 120 (1958). That fact, however, has nothing to do with the continuing validity of acts lawfully undertaken by the attorney in fact at times when he still had the authority to act. Thus, the contract for sale was not rendered void by Pickett’s death, though the fact of her death did render Johnson, in his capacity as her attorney in fact, legally incapable of proceeding to carry out the remaining terms of the contract. The contract, however, remained a binding agreement that could be enforced against Pickett’s estate in the probate proceeding. Miss.Code Ann. § 91-7-221 (Rev.1994).

¶ 11. The chancellor found that Kirkland, in his capacity as purchaser under the contract, was ready and willing to close the sale within the time set out in the contract and had, in fact, attempted to tender performance. However, because of some initial problems in properly opening Pickett’s estate and having a personal representative of the estate duly qualified under applicable law (these difficulties being procedural errors not having any particular relevance to the issues now before us), the estate was not in position to close the transaction on or before December 15, 1999. In that situation, where one party having the right to demand performance stands ready and willing to carry out an executory contract but the other party cannot perform due to a temporary impossibility, the passing of the designated date for performance does not result in voiding the contract. Rather, that event simply extends the time of performance appropriately until the impossibility ceases. Culp v. Tri-County Tractor, Inc., 112 Idaho 894, 736 P.2d 1348, 1354 (1987) (citing Restatement (Second) of Contracts § 269, cmt. a (1981)). If the non-performing party fails to perform after removal of the impossibility, a ready and able purchaser may seek specific performance or such other legal remedy as may appear appropriate in the particular case. O’Sullivan v. Bergenty, 214 Conn. 641, 573 A.2d 729, 734 (1990).

¶ 12. It was in an effort to obtain specific performance that Kirkland filed a petition in the estate proceeding seeking to compel the decedent’s personal representative to carry out the terms of the contract. The only issue raised was the validity of the contract itself and not, assuming the validity of the contract was established, whether specific performance was a proper remedy. The chancellor resolved the question of the validity of the contract in favor of Kirkland and ordered specific performance, which is a particularly appropriate remedy in matters relating to tracts of real property because of the unique nature of real estate. Berryhill v. Hatt, 428 N.W.2d 647, 657 (Iowa 1988) (citing Moser v. Thorp Sales Corp., 256 N.W.2d 900, 907 (Iowa 1977)).

¶ 13. For the reasons we have discussed, we find that the chancellor was entirely correct in concluding that the contract had not lapsed for its failure to close by the December deadline under the circumstances. There was, therefore, no error in that aspect of the chancellor’s ruling. We affirm the validity of the sale and the resulting conveyance to Kirkland.

¶ 14. This determination necessarily brings us to the second dispute presented in this appeal, which involves the proper distribution of the proceeds from the sale of the property.

IV.

Entitlement to Sales Proceeds

¶ 15. Mississippi case law makes plain that the doctrine of ademption, as it developed under the common law, applies when determining competing rights of individuals claiming an interest in some part of the testator’s estate. The doctrine, as it is applied in matters relating to testamentary disposition in this state, was set out in the case of Mississippi Baptist Foundation, Inc. v. Estate of Matthews as follows:

Ademption typically “occurs when a testator in his lifetime disposes of a piece of property he has specifically devised or bequeathed in his Will. The effect is that the gift fails since the testator at his death did not own the property.”

Mississippi Baptist Foundation, Inc. v. Estate of Matthews, 791 So.2d 213, 218(¶ 20) (Miss.2001) (quoting Robert A. Weems, Wills and Administration of Estates in Mississippi § 9-20 (2d ed.1995)).

¶ 16. It is important to observe that, in the matter of considering specific bequests or devises and questions of ademption, the doctrine traditionally requires the identical property to be an asset of the estate at the time of testator’s death. By way of example, in Welch v. Welch, the testator specifically devised a Packard automobile to his wife but, after executing the will, replaced that vehicle with a Lincoln automobile. Welch v. Welch, 147 Miss. 728, 732-33, 113 So. 197, 198 (1927). In that situation, the Mississippi Supreme Court held that the disposition of the Packard worked as an ademption of the specific bequest and found that the beneficiary had no claim to the vehicle that had replaced it. Id. As a result, the Lincoln passed as a part of the decedent’s residual estate. Id.

¶ 17. It may be observed that some other states, apparently concluding that a strict application of the principles of ademption may serve to produce unanticipated and unfair results, have adopted nonademption statutes. Alabama has adopted such a statutory provision as Section 43-8-227 of the Alabama Code. That section deals with a number of different circumstances, and, rather than quote it in full, we simply observe that the official commentary in the code relating to this section provides that

[t]he intent of this section is to prevent ademption in all cases involving sale, condemnation or destruction of specifically devised assets where testator’s death occurred before the proceeds of the sale, condemnation or any insurance, had been paid to the testator.

Ala.Code § 43-8-227, cmt. (1975).

¶ 18. Mississippi has not seen fit to legislatively modify the working of any of the aspects of the ademption doctrine as it developed under the common law. Thus, under principles of ademption, it can be said with certainty that, had the sale actually closed prior to Pickett’s death, the Van Ettens would have no claim against the proceeds derived from the sale, even in the circumstance where they remained a separate asset of the testatrix, readily identifiable as being the fruits of the transaction.

¶ 19. The issue to be determined is whether the unanticipated death of Pickett, coming after execution of a binding contract to sale but before the contract was finally carried out, produces the same result. The chancellor relied on the doctrine of equitable conversion to conclude that the execution of a binding contract of sale transformed Pickett’s title to the real estate into personalty consisting essentially of the right to receive the contracted-for sales price, while the purchaser under the contract became, on equitable considerations, the owner of the property. Thus, insofar as Pickett was concerned, upon the execution of the contract, she no longer owned the exact item devised in the will, which was the real property itself, the result being that the devise was adeemed. This resulted in an ademption of the previous devise of the real property.

¶ 20. The chancellor correctly concluded that there was no existing case law in Mississippi that dealt with the effect of principles of ademption on the particular facts presented in this case. In that situation, the chancellor looked to other jurisdictions for persuasive authority and determined that the contract of sale under generally-accepted common law principles acted as an ademption of the previous specific devise of the same property. Our research has led us to the conclusion that the chancellor was correct in her determination of the generally-accepted rule in such circumstances.

¶ 21. A recent example of a jurisdiction following the general rule is found in the Massachusetts case of Kelley v. Neilson, 433 Mass. 706, 745 N.E.2d 952 (2001). In that case, the Massachusetts Supreme Judicial Court found that a contract for sale of land, though not closed prior to the seller’s death, worked an ademption of a specific devise of that same property contained in an earlier-executed will. Id. at 961. A North Dakota case raised the same issue but produced a different result based on its own form of a “nonademption” statute, but even that case went on to say that, but for the statute, “[ujnder the strict rule of the common law such a contract to sell would, without question, have revoked the specific devises.” Shure v. Dahl, 80 N.W.2d 825, 826 (N.D.1957) (citations omitted).

¶ 22. Several treatises on will construction have spoken generally to the issue. In The Handbook of the Law of Wills by Thomas E. Atkinson, the following passage appears:

When the property bequeathed or devised has not been conveyed but only subjected to a contract of sale by the testator, the orthodox view is that the testamentary provision is adeemed and that the right to enforce the contract and receive the proceeds does not pass to the legatee or devisee.

Thomas E. Atkinson, The Handbook of the Law of Wills § 134, at 744-45 (2d ed.1953).

¶ 23. Another treatise offered the view that the issue was not one of ademption but was one of implied partial revocation of the will by the subsequent contract that was, on its face, inconsistent with the previous devise. The result, despite the difference in language, is the same:

Under the common-law rule it has been held that a devise may be revoked by a conveyance or contract to convey though wholly ineffectual to pass title, but this would seem to be put upon the ground of revocation by subsequent instrument.

George W. Thompson, The Law of Wills § 17, at 266-67 (3d ed.1947) (emphasis added).

¶ 24. In the absence of any statutory enactment by the Mississippi Legislature altering what appears to be a widely-recognized rule of will interpretation under the common law, we are convinced that the chancellor was correct and that the general rule set out above must be applied to this case.

¶ 25. The contract of sale gave to Kirkland the absolute right to purchase the real property. Under the rule of construction discussed above, the execution of that contract worked as an ademption of the specific devise of that same property to the Van Ettens. In that circumstance, the Van Ettens have no claim to the real property or to the proceeds ultimately realized when the sale of the land was closed pursuant to the contract of sale.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: MYERS, J.,

text:
    Munif N. SALMAN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01784-COA.
    Court of Appeals of Mississippi.
    Feb. 3, 2004.
    Rehearing Denied May 25, 2004.
    Certiorari Denied Aug. 5, 2004.

      James T. Knight, Ridgeland, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Munif N. Salman was found guilty in the Circuit Court of Panola County, Mississippi, of three counts of failure to file a tax return for the years of 1998, 1999 and 2000 and two counts of attempting to evade payment of personal income tax for the years of 1998 and 1999 in violation of Mississippi Code Annotated Sections 27-7-87(2) and 27-3-79(2), respectively. Sal-man appeals his conviction and sentence and raises the following three issues. Finding these issues to be without merit, we affirm.

ISSUES PRESENTED

I. Did the circuit court err by denying Salman’s motion for directed verdict and dismissal of the indictment made at the close of the evidence?

II. Did the circuit court err by refusing to allow jury instructions D-6, D-7 and D-8?

III. Did the circuit court err by imposing the maximum sentence on Salman?

STATEMENT OF FACTS

¶ 2. Salman was contacted by the Mississippi State Tax Commission concerning both income and sales tax returns for the years of 1998, 1999 and 2000. The sales tax returns are not at issue in this case. Salman was first contacted by the Tax Commission around September of 2000. Contacts between Salman and the Tax Commission took place, but Salman’s tax affairs were not resolved. Assessment notices were issued by the Tax Commission for both Salman’s sales tax and income tax liability. Following a request made by Salman, a meeting between Salman and the Tax Commission was held in early December 2001, to discuss his tax liability. No resolution was reached at that meeting.

¶ 3. Salman claims that at that time he was employing the services of a third accountant, Vickie Cook. Cook was hired to work through Salman’s tax issues. Sal-man asserts that Cook timely filed a protest requesting a board of review hearing as provided by state law. An initial hearing was scheduled by the chairman of the review board by letter dated December 31, 2001, but the hearing was later postponed.

¶ 4. Salman was indicted on March 15, 2002, on three counts of tax evasion, a felony, in violation of Mississippi Code Annotated Section 27-3-79(2) and three counts of failure to file tax returns, a misdemeanor, in violation of Mississippi Code Annotated Section 27-7-87(2). At Sal-man’s trial, held on September 9, 2002, the prosecution called three witnesses who were employees of the Tax Commission. Mike Shelby, a bureau director with the Tax Commission, testified that the Tax Commission assessed that Salman owed personal income tax of $79,815, with penalties and interest included, but that Salman on the date of his trial had paid nothing. Shelby also testified that Salman had previously filed income tax returns, specifically in 1996.

¶ 5. Mark Morgan, a criminal investigation agent who collected information on Salman, testified that Salman did receive income during the years of 1998, 1999 and 2000 and no returns were filed. Morgan determined Salman’s source of income to be a convenience store and gas commissions. According to Morgan’s investigation, Salman’s gross income for the years in question was as follows: 1998-$833,751.28; 1999-$558,311.97; 2000-$299,144. Morgan testified that he requested income tax records from Salman; however, Salman failed to provide the tax records claiming that they were stored in a barn and eaten by rats.

¶ 6. Liesa Holeman, a senior tax auditor with the Senatobia office of the Tax Commission who was responsible for an audit on Salman, testified that Salman owed $18,203 in personal income tax for 1998, $9,646 for 1999 and $5,503 for 2000. According to Holeman, Salman was asked for tax records and neither provided them to the Tax Commission or assisted the Tax Commission in any way. Holeman stated that Salman had not paid any taxes, penalties or interest for 1998, 1999 and 2000.

¶ 7. At the close of the State’s case, Salman moved for a directed verdict and dismissal of the indictment. The trial court denied Salman’s motion. Salman did not put on any evidence. The jury found Salman guilty of three counts of failure to file a tax return for the years 1998, 1999 and 2000 and two counts of attempting to evade payment of personal income tax for the years 1998 and 1999. The trial court imposed the following sentence:

Count 1 — Failure to file a personal income tax return for 1998-6 months suspended and concurrent with Count 4.
Count 2 — Attempting to evade payment of personal income tax for 1998-5 years, $5,000 fine and $27,849 restitution to Tax Commission.
Count 3 — Failure to file a personal income tax return for 1999-6 months suspended concurrent to Count 1.
Count 4 — Attempting to evade payment of personal income tax for 1999-5 years suspended and consecutive to Count 2.
Count 5 — Failure to file a personal income tax return for 2000-6 months suspended and concurrent to Count 1.

Following the trial court’s denial of Sal-man’s motion for new trial, Salman timely filed his notice of appeal.

LEGAL ANALYSIS

I. DID THE CIRCUIT COURT ERR BY DENYING SALMAN’S MOTION FOR DIRECTED VERDICT AND DISMISSAL OF THE INDICTMENT MADE AT THE CLOSE OF THE EVIDENCE?

¶ 8. Salman maintains that the trial court committed error by denying his motion for directed verdict and dismissal of the indictment made at the close of the evidence. By reading Salman’s motion, it is apparent that he was arguing that the State failed to prove certain elements of the crimes for which he was charged in the indictment.

¶ 9. Motions for directed verdict as well as motions for JNOV both challenge the sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993). Our standard of review regarding the legal sufficiency of the evidence is as follows:

[W]e must, with respect to each element of the offense, consider all of the evidence — not just the evidence which supports the case for the prosecution — in the light most favorable to the verdict. The credible evidence which is consistent with the guilt, must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Wetz v. State, 503 So.2d 803, 808 (Miss.1987). Salman’s misdemeanor charges in the indictment relate to Mississippi Code Annotated Section 27-7-87(2). Salman argues that Sections 27-7-87(2) and(5) provide that a crime has not been committed until written notice and demand has been made by the Tax Commission for a taxpayer to file a tax return. Salman contends that the State offered no proof on the essential elements of written notice and demand so the trial court should have granted his motion for directed verdict.

¶ 10. In the case sub judice, the record indicates that the State offered ample evidence of written notice to Salman that he owed income tax and made demand for payment.' Mike Shelby, a witness for the State; testified that in December of 2001, the Tax Commission mailed a notice of assessment to Salman on his income tax liability. Shelby stated that as a result of Salman receiving the notices, he requested the meeting that was held on December 3, 2001. Furthermore, Section 27-7-53(2) of the Mississippi Code Annotated states, “If no return, is made by a taxpayer required by this chapter to make a return, ... the commissioner shall forthwith make an assessment of the tax so determined to be due by mail or by personal delivery of the assessment to the taxpayer, which assessment shall constitute notice and demand for payment.” The State offered proof that such assessment was mailed to Sal-man, and according to statute, that assessment constituted written notice and demand for payment. This issue is without merit.

¶ 11. Salman next contends that the Stated offered no proof on the willfulness requirement of Mississippi Code Annotated Sections 27-7-87(2) and 27-3-79(2). Salman argues that the misdemean- or statute requires willful refusal to file a tax return and the felony statute requires a willful attempt to evade or defeat paying taxes. Salman maintains that all evidence points to his fervent attempts to work with the Tax Commission to resolve his tax issues and as such his inactions were not wilful or criminal in nature. Salman interprets the evidence incorrectly.

¶ 12. Mark Morgan and Liesa Hole-man, witnesses for the State, testified that Salman provided them no records or any information that would aid their investigation. They stated that Salman told them the documents were eaten by rats. Sal-man points to the meeting on December 3, 2001, and alleges that he was willing to pay the taxes at that time. The State’s witnesses testified that Salman expressed some interest in paying, but never actually offered to pay or paid any amount of tax owed during the entire time of the investigation up to the date of his trial. Also, evidence was presented that Salman did previously file a tax return for 1996, so Salman was aware that he, as a citizen, was obligated to file these documents. He just chose not to for whatever reason.

¶ 13. It must be noted that both Salman and the State mention the case of Blue v. State, 716 So.2d 567 (Miss.1998) in their appellate briefs. At trial, the State relied on this case for the assertion that certain income tax violations are malum, prohibi-tum crimes and therefore the defendant’s mens rea is irrelevant. Salman seeks 'to distinguish his case factually from Blue. While arguing that the defendant’s state of mind is irrelevant, Salman contends that the holding of Blue still requires that- the violation of the law be intentional. In Blue, the court stated:

“ ‘Under the common law, proof of criminal intent is a necessary element in the prosecution of every criminal case, (except those offenses which are merely malum prohibitum).’ (Collins v. City of Hazlehurst, 709 So.2d 408, 413 (Miss.1997) (quoting Lee v. State, 244 Miss. 813, 146 So.2d 736, 738 (Miss.))). We have stated that intent to commit a crime is not required, but rather the mere intent to commit the act is sufficient where certain acts have been enumerated unlawful by statute. Nonpayment of income taxes is a statutory violation and is therefore a malum prohibitum crime; therefore, the appellants’ state of mind is irrelevant. Rather the relevant point is that the Blues intended not to pay and did not pay their income taxes for 1990 and 1991 (the years at issue here), which violates the statutes of the State of Mississippi.

¶ 14. It is clear from Blue that while Salman may not have intended to violate the applicable statutes specifically, it is still entirely possible for Salman to commit a malum prohibitum crime such as nonpayment of income taxes by intending to commit the act alone. In this case, the State presented ample evidence for the jury to consider and weigh regarding Sal-man’s failure to file tax returns and his refusal to pay income taxes owed.

¶ 15. According to the above mentioned standard of review, this Court looks at the evidence in the light most favorable to the verdict. It was for the jury to decide the weight and credibility of the evidence and this Court finds there was sufficient evidence for the jury to find that Salman committed the crimes of failure to file a tax return and evading payment of taxes. The trial court did not commit error by denying Salman’s motion for directed verdict.

II. DID THE CIRCUIT COURT ERR BY REFUSING TO ALLOW JURY INSTRUCTIONS D-6, D-7, AND D-8?

¶ 16. Salman asserts that it was reversible error by the trial court to deny jury instructions number D-6, D-7, and D-8 which each addressed the issue of willfulness. Salman again asserts that willfulness was an essential element of each crime with which he was charged. “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Johnson v. State, 823 So.2d 582, 584(¶4) (Miss.Ct.App.2002).

Jury Instruction D-6

¶ 17. The trial court refused to give jury instruction D-6 which read:

The evidence has raised the issue of ignorance on the part of the defendant concerning his knowledge of the tax laws and his belief that he was actively cooperating with the State Tax Commission to resolve his tax affairs in relation to the offenses of tax evasion and failure to file. If the defendant mistakenly believes that his cooperation with the State Tax Commission satisfied his legal requirements that defendant is not guilty of the offenses of tax evasion and failure to file returns if the defendant’s belief was reasonable. To be reasonable the belief must have been based on information, or lack of it, which would indicated [sic] to a reasonable person that the defendant’s communications with the State Tax Commission satisfied his legal responsibilities.

It has long been held that a judge in a criminal case may not comment on or sum up the testimony for the jury. Austin v. State, 784 So.2d 186, 193 (¶ 20) (Miss.2001) (citing Hansen v. State, 592 So.2d 114, 141 (Miss.1991)). In Hansen, the court stated, “Our criminal procedure has long perceived dangers in comments upon the evidence, and in that regard we have for years had a statute, Mississippi Code Annotated Section 99-17-35, which reads in pertinent part: The judge in any criminal cause, shall not sum up or comment on the testimony or charge the jury as to the weight of evidence.... ” Hansen, 592 So.2d at 141. Jury instruction D-6 commented on the evidence and was properly refused by the trial judge.

¶ 18. The trial court also refused to give jury instruction D-7 which read:

(Willful Intent) The Court instruct the jury that in order to find Mr. Salman guilty of a felony, you the jury must find that Mr. Salman acted willfully. The word “willfully,” as that term has been used from time to time in these instructions, means that the act was committed voluntarily and purposefully, with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or disregard the law. Mr. Salman is not guilty of wilfully evading his taxes if all that is shown is that he is careless about keeping his books. He is not guilty of willfully evading his taxes if all that is shown is that he failed to hire competent bookkeepers or accountants. It must be shown that he willfully performed acts with the intent to defraud the State Tax Commission, to deceive them, in order to cheat the State from the proper tax which was due from him.

There were numerous instructions given to the jury regarding the issue of willfulness such as Nos. 9, 11, and 13 which informed the jury that it had to find that Salman “willfully attempted to evade or defeat personal income tax imposed by the State Tax Commission.” This wording mirrors the language of the applicable statute under which Salman was charged. See Miss. Code Ann. § 27-3-79(2) (Rev.2003). Also No. 15 stated “Wilful means nothing more than intentionally doing an act or intentionally failing to do an act.” The trial court was “under no obligation to grant redundant instructions.” Montana v. State, 822 So.2d 954, 961 (¶ 26) (Miss.2002). The jury received an abundance of instructions on the wilfulness element of the felony. The jury had been fully informed as to the requirement and meaning of the term “willful.” Aso, this instruction commented on evidentiary matters that were not before the jury. See Hansen, 592 So.2d at 141. Specifically, that Salman failed to hire competent bookkeepers or accountants. There was no evidence presented at trial on this issue. It was not error for the trial court to refuse jury instruction D-7.

Jury Instruction D-8

¶ 19. The trial court refused to grant instruction D 8 which read:

(Reliance on Tax Professionals) The Prosecution has charged that Mr. Sal-man willfully, feloniously and knowingly attempted to evade or defeat his taxes. However, if you find that Mr. Salman’s actions were based on reliance in good faith upon the advice of his accountants or employees of the State Tax Commission, then you must find that Mr. Sal-man is not guilty as charged in the indictment.

The trial court did not commit error by refusing instruction D 8 because it comments on issues that are unsupported by the evidence. The trial court is not required to give an instruction that is unsupported by the evidence. Catchings v. State, 684 So.2d 591, 595 (Miss.1996). In this case, there was no evidence presented that Salman relied on professionals or employees of the Tax Commission to handle his tax affairs. To the contrary, the evidence reflected that it was Salman’s own responsibility both to file his tax returns and to pay taxes he owed and he did neither. This issue is without merit.

III. DID THE TRIAL COURT ERR BY IMPOSING THE MAXIMUM SENTENCE ON SALMAN?

¶ 20. Salman contends that it was an abuse of discretion for the trial judge to impose the maximum sentence of five years for the felony counts. Salman asserts that he had no prior criminal record and was an otherwise responsible and respected member of the community and as such the maximum sentence was not warranted. Salman cites no authority in his appellate brief to support his argument.

¶ 21. As the State correctly argues, we have no obligation to review any assignments of error where the party has cited no authority. Joiner v. State, 835 So.2d 42, 44(¶ 7) (Miss.2003); See also Kelly v. State, 553 So.2d 517, 521 (Miss.1989). Considering the merits of Salman’s argument briefly, sentencing is within the “complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Hoops v. State, 681 So.2d 521, 537 (Miss.1996). “A trial court will not be held in error or held to have abused discretion if the sentence imposed is within the limits fixed by statute.” Gunter v. State, 841 So.2d 195, 200 (¶ 17) (Miss.Ct.App.2003) (quoting Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984)). As long as the sentence is within the prescribed statutory guidelines, the sentence will not be disturbed on appeal. McDougle v. State, 781 So.2d 909, 912 (¶ 11) (Miss.Ct.App.2000). The sentence imposed on Salman was within the statutory limits; therefore, this issue is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF COUNT 1— FAILURE TO FILE A PERSONAL INCOME TAX RETURN FOR 1998 AND SENTENCE OF SIX MONTHS SUSPENDED TO RUN CONCURRENTLY WITH COUNT 4; COUNT 2 — ATTEMPTING TO EVADE PAYMENT OF PERSONAL INCOME TAX FOR 1998 AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, $5000 FINE AND $27,849 RESTITUTION TO TAX COMMISSION; COUNT 3 — FAILURE TO FILE A PERSONAL INCOME TAX RETURN FOR 1999 AND SENTENCE OF SIX MONTHS SUSPENDED TO RUN CONCURRENTLY WITH COUNT 1; COUNT 4 — ATTEMPTING TO EVADE PAYMENT OF PERSONAL INCOME TAX FOR 1999 AND SENTENCE OF FIVE YEARS SUSPENDED TO RUN CONSECUTIVELY TO COUNT 2; COUNT 5— FAILURE TO FILE A PERSONAL INCOME TAX RETURN FOR 2000 AND SENTENCE OF SIX MONTHS SUSPENDED TO RUN CONCURRENTLY WITH COUNT 1 IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: KING, P.J.,

text:
    Marvin FIELDS, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-01554-COA.
    Court of Appeals of Mississippi.
    Feb. 17, 2004.
    Rehearing Denied May 25, 2004.
    Certiorari Denied Aug. 5, 2004.

      Robert T. Laster, Grenada, Phillip Broadhead, Columbia, Stacey Mazulerich, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P.J.,

for the Court.

¶ 1. Marvin Fields was convicted of two counts of burglary by the Grenada County Circuit Court and sentenced to serve a term of seven years on each count in the custody of the Mississippi Department of Corrections. The sentences were to be served concurrently. Aggrieved by his convictions and sentences, Fields appeals, raising the following issues as error which we quote verbatim:

I. The trial court erred when it compelled Mr. Fields to proceed pro se at trial and failed to follow the requirements of Faretta v. California in violation of his right to counsel under the Mississippi and United States Constitutions.

II. The trial court erred when it failed to sustain Mr. Fields’s motion to set aside the jury’s verdict (J.N.O.V.) and motion for a new trial as contrary to the overwhelming weight of the evidence.

FACTS

¶ 2. During the early morning of December 21, 1998, Jimmy Brock, manager of Abel’s Used Cars, received a call indicating that someone had broken a window out of a car on the car lot.

¶ 3. Officer Adam Eubanks of the Grenada Police Department indicated that he saw two males “standing across the Scott parking lot behind the cars at Abel’s Used Cars,” at 4:30 a.m. When he approached the males, they began to run in different directions. Eubanks then approached Fields, who was walking at this time, and asked him “where he was headed this early in the morning.”

¶ 4. According to Eubanks, Fields indicated that his name was “Eric Winston” and he had just come into town on a Greyhound bus. Eubanks noticed some wires hanging out of Fields’ jacket pocket. When Eubanks asked Fields about the wires, Fields stated that “it was an equalizer that was in his car that broke down on him.” Fields indicated that he did not have any identification with him nor did he have a bus ticket. Eubanks then detained Fields based upon his suspicion that a burglary might have been committed.

¶ 5. At trial, Eubanks testified that Fields was the same person who indicated that his name was “Eric Winston,” when he was stopped for questioning.

¶ 6. On August 6, 2001, Fields had dismissed his attorney. At the beginning of trial on August 7, 2001, Fields indicated to the court that he was not ready to proceed because he did not have an attorney, and requested a continuance to hire an attorney. The trial judge denied the motion for a continuance.

¶ 7. The trial judge then advised Fields that he had a right to have his present counsel represent him or he could represent himself. Fields stated that he did not want his present counsel nor did he want to represent himself. The trial judge stated that unless Fields could hire an attorney within “the next five minutes,” he should get ready for trial. The trial judge also indicated that he would allow Fields’ present counsel to assist him as hybrid counsel if he decided to proceed pro se. Again, Fields indicated that he did not want this particular attorney’s assistance. Fields’ attorney made an ore terms request to be excused which was granted. The trial judge then proceeded with the trial.

¶ 8. The trial judge explained the voir dire examination to Fields, after which Fields participated in the process. After a jury panel had been selected, Fields indicated that he needed time to review the discovery materials. The trial judge allowed Fields approximately two hours to review the materials.

¶ 9. Upon returning to the courtroom after the break, the trial judge noted that Fields had not returned to the courtroom nor told anyone where he would be. The trial judge asked Chief Deputy Johnny Grantham to attempt to locate Fields. Deputy Grantham indicated that the officers were unable to locate Fields.

¶ 10. At the conclusion of the trial, the trial judge granted a directed verdict on count two in favor of Fields and allowed counts one and three to go to the jury. The jury found Fields guilty of the two counts of burglary. Sentencing was deferred until Fields was apprehended. He was taken into custody in Tennessee and extradited to Mississippi. He was then incarcerated in Grenada County.

ISSUES AND ANALYSIS

I.

Whether the trial court erred when it compelled Mr. Fields to proceed pro se at trial and failed to follow the requirements of Faretta v. California in violation of his right to counsel under the Mississippi and United States Constitutions.

¶ 11. Fields claims that his right to counsel pursuant to the Mississippi Constitution and the Sixth Amendment of the United States Constitution was violated when he was compelled to proceed pro se at trial.

¶ 12. The Mississippi Constitution Article 3, Section 26 and the Sixth Amendment of the United States Constitution grant a defendant the right to be heard by himself or counsel or both.

¶ 13. “Though the right to counsel is absolute, the right to counsel of choice is not absolute.” Atterberry v. State, 667 So.2d 622, 630 (Miss.1995). This right may not be used to thwart the progress of a trial. Ladnier v. State, 273 So.2d 169, 173 (Miss.1973). While an indigent is entitled to competent counsel to defend him, he is not entitled to court-appointed counsel of his own choosing. Taylor v. State, 744 So.2d 306(¶ 34) (Miss.Ct.App.1999). “The denial of a last minute continuance to retain new counsel is within the trial court’s discretion.” Henry v. State, 816 So.2d 443(¶ 5) (Miss.Ct.App.2002).

¶ 14. On the day of trial, Fields rejected the service of his then attorney, and requested a continuance to hire an attorney. Given the breakdown in communication, Fields’ attorney was allowed to withdraw. The trial judge denied Fields’ request for a continuance, indicating that Fields had ample opportunity to hire counsel prior to trial. The trial judge advised Fields of the alternatives then available regarding his right to counsel. The trial judge advised Fields of his right to continue with court-appointed counsel. The trial court advised Fields of his right to “hybrid representation,” where court-appointed counsel would be present to assist him. The trial court advised Fields of his right to proceed pro se. Fields indicated that neither of these alternatives was acceptable.

¶ 15. Upon Fields’ rejection of the alternatives given by the trial court, the trial judge explained to him the voir dire procedure and began to prepare for trial. Fields participated in jury selection and was given approximately two hours to examine discovery materials. When court reconvened, Fields could not be located in the courthouse. The trial judge indicated Fields’ absence on the record and allowed the State to proceed with the trial. The supreme court has held that when a defendant enters an appearance in a trial court at the commencement of trial, he may be tried in absentia if he thereafter fails to attend the proceedings. Poe v. State, 739 So.2d 405(¶ 16) (Miss.Ct.App.1999).

¶ 16. Fields argues that under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the trial court could not force him to proceed with court-appointed counsel where he expressed a desire to represent himself. It is important to note that Fields was not forced to proceed with court-appointed counsel.

¶ 17. The trial court is vested with reasonable latitude in docket management and granting of continuances. Williams v. State, 751 So.2d 1137(¶ 8) (Miss.Ct.App.1999). The right of a defendant to obtain a continuance for the purpose of seeking counsel of his choosing must be considered in light of the court’s right to manage its docket. Id.

¶ 18. Since Fields did not have the resources to obtain an attorney, and right before trial rejected the services of an appointed attorney, who was familiar with the case, and had previously obtained a mistrial on one of the charges, the trial court was not obligated to grant a continuance and appoint new counsel. Henry, 816 So.2d 443 at (¶ 5).

¶ 19. This Court finds that the trial court did not abuse its discretion in denying Fields’ request for a continuance to obtain other counsel nor did it violate Fields’ right to counsel. Davis v. State, 811 So.2d 346(¶ 7) (Miss.Ct.App.2001).

n.

Whether the trial court erred when it failed to sustain Mr. Fields’s motion to set aside the jury’s verdict (J.N.O.Y.) and motion for a new trial as contrary to the overwhelming weight of the evidence.

¶ 20. Fields argues that there was insufficient evidence to support the trial court’s denial of his motion for JNOV. He further claims that the verdict was against the overwhelming weight of the evidence.

¶ 21. It is a well-established precedent that the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The credible evidence consistent with Fields’ guilt must be accepted as true. Id. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id.

¶ 22. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. Id. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Id.

¶23. Fields alleges that the evidence was insufficient because there was nothing presented which suggested that he attempted to conceal “his possession of the goods allegedly stolen from the automobiles,” and he provided an explanation as to why he had an equalizer in his pocket.

¶ 24. The State presented evidence through the testimony of Officer Eubanks who stated that (1) he saw two black males near the Cadillac at Abel’s Used Cars that appeared to have a glass window broken out, (2) when he approached Fields to question him, he noticed wires hanging from Fields’ pocket, and (3) Fields stated that he had just gotten off of a Greyhound bus, borrowed a car from a friend and the car had broken down so he took the equalizer out of the car to make sure that it would not get stolen.

¶ 25. There was testimony presented by the State through David Hill, manager of Cannon’s Used Cars, who testified that a Plymouth Acclaim and a Dodge Monaco from the lot of Cannon’s Used Cars in Grenada had been broken into before he came to work on December 21, 1998, and the equalizer was missing from the Plymouth Acclaim. Mr. Hill identified the equalizer that was in Fields’ possession as the one which came from the dashboard of the Plymouth Acclaim on his lot.

¶ 26. Fields asserts that due to the inconsistency in the testimony at trial, the overwhelming weight of the evidence does not support a conviction in this case. He claims that Detective Jimmy Stauddy of the Grenada Police Department testified that when he inspected the Cadillac, “you could tell somebody had pilfered through it.” However, Jimmy Brock, manager of Abel’s Used Cars, testified that he did not see anything “out of the ordinary” upon looking into the Cadillac. Inconsistencies or contradictions in testimony are clearly in the jury’s province, and we refuse to reverse on such grounds. James v. State, 756 So.2d 850(¶ 4) (Miss.Ct.App.2000). It is the duty of the jurors to resolve conflicts in the testimony presented. Id.

¶ 27. As to Fields’ argument regarding the weight of the evidence, he claims that the evidence presented by the State which contained significant inconsistencies in testimony does not support a conviction. This Court finds that based on the evidence presented a jury could find Fields guilty.

¶ 28. Therefore, we find no error in the trial court’s decision.

¶ 29. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I AUTOMOBILE BURGLARY AND SENTENCE OF SEVEN YEARS; AND COUNT III AUTOMOBILE BURGLARY AND SENTENCE OF SEVEN YEARS TO BE SERVED CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

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