text:
    The MITCHELL COMPANY, v. MUCAVIL, INC., et al.
    No. 02-381.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.

      Neil H. Mixon, Jr., Powers & Willard, L.L.P., Baton Rouge, LA, for Plaintiff/Ap-pellee: The Mitchell Company.
    Peter J. Losavio, Jr., Losavio Law Firm, Baton Rouge, LA, for Defendant/Appellant: Stice-Hill Edgewood Plaza.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   ON REHEARING

I,This matter is before us on motions for rehearing filed by the parties. For the following reasons, the application for rehearing is denied in part and granted in part.

Facts and Procedural History

On June 23, 1995, The Mitchell Company sued Mucavil, Inc. (Mucavil) and Stice-Hill Edgewood Plaza (A Partnership In Commendam) (Stice-Hill) to collect a “management and leasing fee” pursuant to the terms of a lease between Mucavil, Inc. and Piggly Wiggly Red River Co., Inc. (Red River) dated December 11, 1972. At the time the lease was perfected, Mucavil owned the property which is the subject of the lease. Stice-Hill purchased the property from Mucavil in 1979.

The provision at issue provides:

It is agreed that Singer Housing Company d/b/a The Mitchell Company, P.O. Box 2008, Mobile, Alabama 36601, has represented LESSOR in negotiating and securing this lease with LESSEE and that LESSOR and its successors in title to said real estate shall pay to said The Mitchell Company six per cent (6%) management and leasing fee.

On May 28, 1997, a trial on the merits was held. Thereafter, the trial court issued written reasons in favor of The Mitchell Company against Stice-Hill. Pursuant to an exception of prescription filed by Stice-Hill, The Mitchell Company’s recovery was limited to those claims which arose within the three-year period prior to its filing suit. Judgment in accordance with those reasons was signed on April 23, 1998. The judgment provided in part: “the plaintiff should collect 6% on all future rental income from this property in accordance with the terms of the lease.” The Mitchell Company filed a motion for new trial, and on August 12, 1998, the trial court signed a judgment granting the motion in part.

On January 3, 2001, The Mitchell Company filed a “Petition For Rule” in which it alleged that Stice-Hill had terminated the 1972 lease and entered into a new lease with another lessee on December 1, 1997 and that it was entitled to 6% of all | ^rental income, past and future, received by Stice-Hill under the December 1, 1997 lease. The basis of this last allegation is that the leased premises has been, and continues to be, operated as a Piggly Wiggly. Stice-Hill filed exceptions of unauthorized use of summary procedure, no cause of action, and res judicata.

At the hearing on The Mitchell Company’s Rule, the parties stipulated the following facts: six months remained on the 1972 lease when it was terminated; McDaniel Food Management (McDaniel) is the lessee under the 1997 lease and was subleasing the property from Fleming Foods when the 1972 lease was terminated; there is no affiliation between Red River — the original lessee, Fleming Foods — the successor to Red River, and McDaniel; Piggly Wiggly is a franchise; McDaniel holds several Piggly Wiggly franchises in different geographical areas; Fleming Foods had a valid business reason to terminate the lease; and McDaniel wanted a new lease under which it was lessee.

After the hearing, the trial court issued written reasons, ruling in favor of The MitcheSll Company. On November 5, 2001, a judgement in accordance with the trial court’sj reasons was signed. Stice-Hill filed this appeal, assigning five errors. Four of the assigned errors arise from the April 23, 1998 and August 12, 1998 judgments. The fifth assignment pertains to the November 5, 2001 judgment. The Mitchell Company filed a motion to dismiss/m ation to strike Stice-Hill’s appeal with regard to any issue relating to the April 23, 1998 and August 12, 1998 judgments, j The motion was referred to the merits pf this appeal.

l aMotion to Dismiss/Motion I to Strike Appeal

'As noted above, Stice-Hill assigns four errors which pertain to the April 23, 1998 arid August 12, 1998 judgments. It contends that the April 23, 1998 and August 12; 1998 judgments are not final judgments under La.Code Civ.P. art. 1915(B) because The Mitchell Company’s claims againstj Mucavil, Inc. were not adjudicated therein] therefore, appeal delays on these judgments have not run. In response, the Mitchell Company argues that the trial court’s pilence regarding its claims against Mucavil is a rejection of those claims and that the judgments are final judgments as contemplated by La.Code Civ.P. art.1915 for which appeal delays have run; therefore, thjey cannot be modified on appeal.

Wher 1998 j Civ.P. vided, i the April 23, 1998 and August 12, údgments were signed, La.Code art. 1915(B) (emphasis added) pro-pertinent part: in

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, theories, or parties, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

UAfter being served with the petition in this matter, Mucavil filed an answer and a cross-claim against Stice-Hill. It was notified of the May 28,1997 trial date but did not file a motion for continuance or other pleading regarding the trial. The trial proceeded as scheduled; Mucavil was unrepresented. The record reflects that counsel for The Mitchell Company and Stice-Hill contemplated taking the deposition of Mueavü’s representative for trial purposes because he was incarcerated but did not. The Mitchell Company did not file a motion to sever its claims against Mucavil, nor did it attempt to reserve its rights against Mucavil. Stice-Hill did not assert any claims against Mucavil in its pleadings or at trial.

We have considered these facts, together with the jurisprudential rule that a judgment’s silence as to an issue is a rejection of the claim, Alexander v. Roy O. Martin Lumber Co., 00-1344 (La.App. 3 Cir. 5/9/01), 784 So.2d 872, writ denied, 01-1684 (La.9/21/01), 797 So.2d 676, and conclude that the trial court’s failure to award judgment in favor of The Mitchell Company against Mucavil was a rejection of those demands. See also City of Eunice v. Credeur, 02-188 (La.App. 3 Cir. 10/9/02), 828 So.2d 710, writ denied, 02-2751 (La.1/31/03), 836 So.2d 68. Accordingly, we hold that the April 23,1998 and August 12, 1998 judgments were final judgments and that Stice-Hill’s appeal of them is untimely. Stice-Hill’s appeal is dismissed with regard to these judgments.

November 5, 2001 Judgment

Designation as a Final Judgment

Stice-Hill’s last assignment of error addresses the correctness of the November 5, 2001 judgment. Before we can address the merits of this assignment of error, we must determine whether the judgment, which was designated a final | ¿judgment, was properly certified as such. Shapiro v. L & L Fetter, Inc., 02-933 (La.App. 1 Cir. 2/14/03), 845 So.2d 406. In Shapiro, the court held that a trial court’s designation of a partial judgment as final without an express determination under Article 1915 is “deficient,” Id. at 410, and that an appellate court is not bound by such a designation and must make a de novo determination of the finality of the judgment. Therefore, we must determine if this judgment is final, i.e., does it “determine[ ] the merits of [the] controversy, in whole or in part[?] La.Code Civ.P. art. 1841.” Doyle v. Mitsubishi Motor Sales of Am., Inc., 99-459, 99-460, p. 10 (La.App. 1 Cir. 3/31/00), 764 So.2d 1041, 1047, writ denied, 00-1265 (La.6/16/00), 765 So.2d 338.

In Banks v. State Farm Ins. Co., 30,868 (La.App. 2 Cir. 3/5/98), 708 So.2d 523, the court considered the following factors to determine whether a partial judgment should be certified as immediately appeal-able:

(1) The relationship between the adjudicated and the unadjudicated claims;
(2) The possibility that the need for review might or might not be mooted by future developments in the district court;
(3) The possibility that the reviewing court might be obliged to consider the same issue a second time;
(4) The presence or absence of a claim or counterclaim which could result in setoff against the judgment sought to be made final; and
(5) Miscellaneous facts such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Id. at 525 (citing Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360 (3 Cir.1975)).

The November 5, 2001 judgment affects only Stice-Hill’s obligation to The Mitchell Company under the 1997 lease between it and McDaniel. Our determination | fiof this issue should resolve the need for further litigation in this matter. Considering these facts, we find the November 5, 2001 judgment was properly certified as a final judgment.

The Mitchell Company’s Right to a Fee under the 1997 Lease

The ? November 5, 2001 judgment extends Stice-Hill’s obligation under the 1972 lease to pay The Mitchell Company a 6% fee to the 1997 lease. We begin our consideration of this issue with a review of the trial court’s reasons for judgment and the judgment based on those reasons and observe that this issue appears to have arisen, |at least in part, from the use of the phrase j“Piggly Wiggly tenant” in the April 28, 1998 judgment. In its Reasons for Judgment dated March 19, 1998, the trial court sjtated: “the plaintiff should collect 6% on jail future rental income from this property in accordance with the terms of the leake.” However, the April 23, 1998 judgment based on these reasons provides: “The Mitchell Company shall be entitled to collect and Stice-Hill [] shall pay to The Mitchell Company 6% on all future rental income j received by Stice-Hill ... from Piggly Wiggly, tenant, ... in accordance with thle terms of the lease.” (Emphasis added.) j

All of the allegations in The Mitchell Company’s original and amending petitions concern! the 1972 lease. The only pleading which references the December 1997 lease is the “Petition For Rule” filed January 3, 2001. The trial on the merits was held May 19, 1997, seven months before the 1972 lease was terminated and the 1997 lease was confected. Thus, the “the lease” referenced in the trial court’s March 19, 1998 Reasons for Judgment and the April 23, 1998 judgment is the December 1972 lease, not the 1997 lease.

The November 5, 2001 judgment orders: |7The ¡Mitchell Company is entitled to collect; and Stice-Hill ... is liable to and shall pay to The Mitchell Company 6% on all ¡rental income monies received by Stice-jHill ... from the Piggly Wiggly tenancy, including all past and future rentallincome monies received by Stice-Hill ... pursuant to the lease dated December 1, 1997 between Stice-Hill and McDaniel Food Management.

(Emphasis added.)

In Wr tten Reasons for Judgment issued September 4, 2001, the trial court determined that Stice-Hill is obligated to pay The Mitchell Company a 6% fee regardless of the change in tenants, reasoning:

In deciding this matter, the court refers to its previous Written Reasons for Judgment dated March 19, 1998. In the opinion, the court discusses the extensiveness of the above quoted clause [in the 1972 lease which provides the fee to be paid The Mitchell Company]. According to Louisiana Civil Code Article 2046, when the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Thus, this court reiterates its previous decision that the 6% clause quoted above is contained in the original lease that is recorded and it specifically provides that it is binding on the “lessor and its successor in title.” A purchaser of the property is bound by the terms and conditions of a recorded lease which covers the property.
As stated in its previous opinion, the court finds that the defendant became legally bound to the 6% clause when it acquired the property in question and became the lessors’ successors [sic] in title. Accordingly, The Mitchell Company is entitled to- collect 6% on all future rental income from this property regardless of the change in tenants. Therefore, this court finds that pursuant to the April 23, 1998 judgment, The Mitchell Company is entitled to collect six (6) percent on all rental income received by The Stice-Hill/Edgewood Plaza from the Piggly Wiggly tenancy, including all past and future rental income monies received by Stice-Hill Edgewood Plaza pursuant to the lease dated December 1, 1997 between Stice-Hill and McDaniel Food Management.

The trial court correctly noted that the phrase “lessor and its successor in title” binds “[a] purchaser of the property [to] the terms and conditions of a recorded lease which covers the property.” See Prados v. S. Cent. Bell Tel. Co., 329 So.2d 744 (La.1975). However, the trial court failed to consider La.Civ.Code art. 2727 when | sit held that Stice-Hill’s obligation to pay the 6% fee extended to its 1997 lease with McDaniel. Article 2727 provides that a lease ceases “at the expiration of the time agreed on.” Pursuant to Article 2727, the 1972 lease was only effective until it expired by its own terms; therefore, the trial court’s extension of Stice-Hill’s obligation to pay the 6% fee beyond the term of the lease was error.

The Mitchell Company argues that because the 1998 judgments are final judgments and the November 5, 2001 judgment is based on those judgments this court cannot do anything that affects the 1998 judgments. As discussed above, we agree that the 1998 judgments are final and cannot be changed. However, we are not called on to modify those judgments. This is clear when one considers that the 1972 lease does not extend Stiee-Hill’s obligation to pay the 6% fee beyond the term of the lease; neither of the 1998 judgments extends Stice-Hill’s obligations under the 1972 lease beyond the term of that lease; the trial court’s written reasons for the April 23, 1998 judgment and the judgment itself reference Stice-Hill’s obligation regarding the “Piggly Wiggly tenant” and “Piggly Wiggly tenancy” in the context of being “in accordance "with the terms of the lease,” which is the December 1972 lease, not the December 1997 lease; and the 1972 lease provided that the 6% fee was for negotiating and securing “this lease”— the 1972 lease. Furthermore, The Mitchell Company provided the 6% fee lease provision to the preparer of the 1972 lease, and if it had intended for the 6% fee to extend to a new lease, it could have negotiated such a provision and prepared the provision to so provide. It did not.

There is no basis for the trial court’s extension of Stice Hill’s obligation to pay the 6% fee to the 1997 lease with McDaniel, and it is reversed.

[<jStice-Hill’s Obligation to The Mitchell Company under the Terminated Lease

Finally, we must determine whether the termination of the 1972 lease by Stice-Hill and Fleming Foods affected Stice-Hill’s obligation to pay the 6% fee. The April 23, 1998 judgment provided that the 6% fee provision in the 1972 lease was a stipulation pour autrui Louisiana Civil Code Article 1978 provides that “[o]nee the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.” Filing suit manifests the beneficiary’s intent to take advantage of the benefit. See Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969).

We have not found any cases which interpret this provision in a similar situation. However, the plain wording of the statute leads us to the conclusion that, once the five-year option was exercised, The Mitchell Company was entitled to collect 6% of the monies collected by Stice-Hill during that option period and, without The Mitchell Company’s agreement to terminate the lease, Stice-Hill remained obligated to pay the 6% fee for the remainder of the 1972 lease.

As previously noted, the parties stipulated that six months remained on the lease when it was terminated. Pursuant to the terms of the Termination Agreement, which references Stice Hill’s December 1, 1997 lease agreement with McDaniel, we conclude that the 1972 lease would have terminated June 30, 1998. Therefore, Stice-Hill’s obligation to pay The Mitchell Company the 6% fee under the 1972 lease did not cease until June 30, 1998.

Disposition

The Mitchell Company’s motion to dismiss appeal/motion to strike appeal is granted with regard to Stice-Hill’s assignments ¿f error which pertain to the April 23, |in1998 and August 12, 1998 judgments. The trial court’s judgment dated November 5, 2001 is reversed to the extent that it orders Stice-Hill to pay The Mitchell Company a 6% fee on rental income monies it received or receives pursuant to the December 1, 1997 lease after June 30, 1998. Costs of this appeal are assessed equally to the parties.

REHEARING DENIED IN PART AND GRANTED IN PART.

      . These issues are not properly before us for the ^sons set forth in our original unpublished japinion. See The Mitchell Co. v. Mucavil, Inc., 02-381 (La.App. 3 Cir. 2/5/03), 838 So.2d 942. However, due to the nature of the arguments asserted by the parties on these issues, we address them fully herein.


source: Caselaw Access Project

author: GRAVES, J., for the Court. McRAE, P.J., EASLEY, J.,

license: Public Domain

text:
    The MISSISSIPPI BAR v. Jimmy Doug SHELTON.
    No. 2002-BD-00762-SCT.
    Supreme Court of Mississippi.
    May 22, 2003.
    Rehearing Denied Sept. 11, 2003.
    Michael B. Martz, attorney for appellant.
    Alex A. Alston, Jr., T. Stewart Lee, Jr., Jackson, attorneys for appellee.
   GRAVES, J., for the Court.

¶ 1. This matter is before this Court on a Motion for Indefinite Suspension Pending Appeal, Striking From Roll, Suspending and Staying proceedings brought by the Mississippi Bar (herein-after Bar) against Jimmy Doug Shelton (hereinafter Shelton).

FACTS

¶ 2. A formal complaint was filed by the Bar against Shelton on May 13, 2002, based upon Shelton’s entry of a guilty plea in federal district court on January 10, 2002, pursuant to a plea agreement. He pled guilty to the charge of aiding and assisting in fraud and making false statements related to filing of a tax return to the Internal Revenue Service. A judgment was entered in connection with the plea on April 17, 2002.

DISCUSSION

¶3. The Bar alleges that Shelton pled guilty to a crime which triggers Rule 6 of the Rules of Discipline for the Mississippi Bar. The Bar recommends indefinite suspension until the Bar can show that the time to appeal the conviction has expired or the appeal was concluded without reversal. Moreover, upon the showing of either, the Bar suggests that it will file a motion for reconsideration for Shelton’s immediate disbarment. Shelton contends that he never entered a final plea of guilty as required by Rule 6 of the Rules of Discipline for the Mississippi State Bar, but only a conditional plea. In the plea agreement, Shelton reserved the right to appeal the federal district court’s ruling relating to a motion to suppress the evidence obtained during a warrantless search. Because he entered a conditional plea, Shelton maintains that he is not legally guilty and that the Bar cannot use Rule 6 as a device to automatically suspend him from the Bar. In support of his argument that his conviction is not legally and finally determined, Shelton cites to the Federal Rules of Criminal Procedure Rule 11(a)(2) which when he pled provided that:

Conditional Plea. With the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.

He also argues that a suspension would be inequitable, unjust and would do violence to the well-established rule requiring a strict reading of the disciplinary rules.

¶ 4. Under our standard of review, this Court has exclusive and inherent jurisdiction regarding the discipline of attorneys as promulgated in the Rules of Discipline for the Mississippi State Bar. See Miss. R. Disc.1(a); Miss. Bar v. McGuire, 647 So.2d 706, 708 (Miss.1994). We conduct a de novo review in cases involving the discipline of attorneys. See Miss. Bar v. Pels, 708 So.2d 1372, 1374 (Miss.1998). “The burden is usually on the Mississippi Bar to show by clear and convincing evidence that an attorney’s actions constitute professional misconduct.” Id.

¶ 5. Rule 6(a) of the Rules of Discipline for the Mississippi Bar provides:

(a) Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo contende-re therein, or tender a guilty plea pursuant to the provisions of Miss.Code Ann. §§ 99-15-26 (Supp.1993), or any similar provision in state or federal law therein of any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation, deceit, or willful failure to account for money or property of a client, a certified copy of the judgment of conviction or order accepting or acknowledging the offer or tender of a guilty plea pursuant to the provisions of Miss.Code Ann. §§ 99-15-26 (Supp.1993), or any similar provision in state or federal law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.

¶ 6. As previously stated, a judgment was entered against Shelton on April 17, 2002. A certified copy of the judgment and a copy of the plea agreement has been included as part of the record in this matter. Shelton pled to aiding and assisting in fraud and false statements related to the filing of a return, affidavit, claim or document with the Internal Revenue Service before Judge W. Allen Pepper, Jr. in the United States District Court for the Northern District of Mississippi. United States v. Jimmy Doug Shelton, 181 F.Supp.2d 649 (N.D.Miss.2001), appeal pending, 5th Cir. No. 02-60326.

¶ 7. Conclusive evidence has been introduced to prove that Shelton committed a crime resulting in unprofessional and unethical conduct evincing unfitness for the practice of law. Because Rule 6 further provides that “upon reversal of the conviction or judgment that has resulted in the automatic suspension, the attorney [Shelton] shall be immediately reinstated....” Miss. R. Disc. 6(b). Shelton is not without a remedy should he prevail on appeal of his conviction. This Court accepts the recommendation of the Bar and strikes Shelton’s name from the roll of attorneys and orders that he is suspended from the Mississippi Bar pursuant to Rule 6 of the Rules of Discipline for the Mississippi Bar.

¶ 8. JIMMY DOUG SHELTON IS SUSPENDED FROM THE PRACTICE OF LAW IN THE STATE OF MISSISSIPPI.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND EASLEY, JJ. EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND DIAZ, J.

McRAE, P.J.,

dissenting:

¶ 9. I dissent to the majority’s finding that Rule 6 can be used to indefinitely suspend Shelton under these circumstances in advance of a final conviction. A conditional plea is not a final judgment or admission of guilt.

¶ 10. Rule 6(a) of the Rules of Discipline states in part:

Whenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or plea of nolo contendere therein, or tender a guilty plea pursuant to the provisions of Miss.Code Ann. § 99-15-26 (Supp.1993), or any similar provision in state or federal law therein of any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation, deceit, or willful failure to account for money or property of a client, a certified copy of the judgment of conviction or order accepting or acknowledging the offer or tender of a guilty plea pursuant to the provision of Miss.Code Ann. § 99-15-26 (Supp.1993), or any similar provision in state or federal law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof.

(emphasis added).

¶ 11. Rule 6 is to be invoked when there is a “final judgment or a guilty plea,” not a conditional plea pending an appeal. A conditional plea is not a guilty plea or an admission of guilt.

¶ 12. Furthermore, a conditional plea is different from a guilty or nolo contendere plea and cannot be found to be a final judgment since it can be withdrawn under Rule 11 of the Federal Rules of Criminal Procedure. Rule 6 addresses pleas of “guilty” or “nolo contendere.” Rule 6 does not address conditional pleas, which as Rule 11 illustrates are in a class of their own. Additionally, conditional guilty pleas under Fed.R.Crim.P. 11 may be withdrawn before the court accepts the plea and after the court accepts the plea but before sentencing under certain circumstances. Fed. R.Crim.P. 11(d). Rule 6 was not meant to address conditional guilty pleas as found in Rule 11. If the Bar wishes to use this Rule 6 mechanism, it has to wait until after the final appeal of this matter. Therefore, I would deny the Mississippi Bar’s motion at this time, as it is premature.

¶ 13. As a side note, a review of the Fifth Circuit Court of Appeals docket indicates that United States of America v. Jimmy Doug Shelton, NO. 02-40719, was argued on February 11, 2003. This decision, unlike ours, will be out shortly, and then the Bar may proceed with appropriate action.

¶ 14. For these reasons, I respectfully dissent.

DIAZ AND EASLEY, JJ., JOIN THIS OPINION.

EASLEY, J.,

dissenting:

¶ 15. The majority suspends Shelton from the practice of law; however, I must respectfully dissent. Shelton has not entered a final guilty plea. In Shelton’s conditional plea agreement, he reserved the right to appeal the trial court’s ruling on a motion to suppress. Shelton has appealed that ruling to the United States Court of Appeals for the Fifth Circuit. Since the Fifth Circuit has not ruled on that appeal, I do not find that Shelton has been finally convicted of a crime that would subject him to suspension at this time. The majority has jumped the gun by ordering Shelton’s suspension thereby depriving Shelton of due process. Therefore, I do not find that a violation of Rule 6(a) of the Rules of Discipline has occurred at this time. Based on the language of this unique conditional plea arrangement, the majority should have awaited the appellate ruling on the suppression of evidence before accepting the conditional plea agreement as a tendered guilty plea. For these reasons, I would deny the Mississippi Bar’s motion.

McRAE, P.J. AND DIAZ, J., JOIN THIS OPINION.

      . See internet cite http: //www.ca5.usc-ourts.gov/clerk/calendar/0302/24.htm.


author: WALLER, J., for the Court.

text:
    The MISSISSIPPI BAR v. Daniel L. INSERRA.
    No. 2002-BD-02017-SCT.
    Supreme Court of Mississippi.
    May 29, 2003.

      Adam B. Kilgore, Jackson, attorney for appellant.
    Daniel L. Inserra, Pro Se, attorney for appellee.
   WALLER, J., for the Court.

¶ 1. The Mississippi Bar filed a Formal Complaint seeking reciprocal discipline pursuant to Rule 13 of the Rules of Discipline for the Mississippi State Bar against attorney Daniel L. Inserra based on a public censure and two-year probation entered against him by the Disciplinary Commission of the Supreme Court of Arizona. Finding that reciprocal discipline is warranted, we hold that Inserra be publicly reprimanded.

FACTS AND PROCEDURAL HISTORY

¶2. On December 20, 2002, the State Bar of Arizona (“State Bar”) filed a Formal Complaint with the Disciplinary Commission of the Supreme Court of Arizona against attorney Daniel L. Inserra in response to four overdraft notices on his trust account.

¶ 3. The State Bar received the first overdraft notice on September 19, 2000, indicating that Inserra’s trust account was overdrawn in the amount of $146.14. The overdraft was caused by the debit of service charges from the account for processing credit card payments. Inserra’s trust account at the time contained only administrative funds and earned attorney’s fees and held no funds owed to clients or third-party lienholders. Inserra corrected the overdraft prior to the State Bar’s receipt of the overdraft notice.

¶4. On October 19, 2000, Inserra informed the State Bar that he had received another overdraft notice. This overdraft was again caused by an electronic debit of a credit card processing service charge. What had happened was the $30.00 service charge was presented when the account had a balance of only $13.09. Again, In-serra’s account contained only administrative funds and no funds owed to any client or third-party lienholder.

¶5. The State Bar received two additional overdraft notices on November 27, 2000. The first notice was the result of the payment of a check for $800 on November 14, 2000, when the account held a balance of only $612.87. A $25.00 insufficient funds fee was charged, thereby leaving a balance of negative $212.13. The account held administrative funds and funds belonging to one of Inserra’s clients, Thomas Greco. The $800 check was written on behalf of Greco. The second notice indicated a rejection on November 15, 2000, of a $38.91 electronic debit constituting a lease payment on credit card processing equipment Inserra maintained in his office. The debit was rejected because the overdraft from the day before had left the $212.13 negative balance. A $25.00 insufficient funds charge was assessed, increasing the negative balance to $237.13.

¶ 6. Inserra conditionally admitted that he was negligent by failing to reconcile his trust account monthly in violation of Arizona’s Trust Account Guidelines. He also conditionally admitted failing to use only pre-numbered checks drawn on his trust account when he deposited funds into the account to be used to post bond on behalf of a client and used a bank check instead of a pre-numbered check to obtain the funds from the account.

¶ 7. The tender of admissions and agreement for discipline by consent also included the following conditional admissions:

Respondent conditionally admits that he was negligent in his accounting and record keeping practices; that he failed to maintain complete trust account records for a period of five years; that he failed to exercise due professional care in the maintenance of his client trust account; and that he was unable to account for all transactions relating to his client trust account by failing to specifically identify clients affiliated with each transaction.

Inserra also conditionally admitted that he failed to keep his own funds separate from client funds by depositing earned fees into his trust account and failing to withdraw immediately fees when earned.

¶ 8. On the basis that Inserra and the State Bar agreed on the conditional admissions, the Disciplinary Commission imposed a sanction of public censure and two years probation with the requirement that Inserra enter into a probation agreement in compliance with a Law Office Management Assistance Program assessment. He was also ordered to attend the State Bar’s Trust Account Ethics Enhancement Program.

¶ 9. The Mississippi Bar filed its Formal Complaint with this Court on December 9, 2002, seeking reciprocal discipline under Rule 13. The complaint indicated that In-serra is a resident of Scottsdale, Arizona, and is currently on suspension for failure to pay bar enrollment fees. See Miss.Code Ann. § 73-3-127 (2000). Inserra was served via certified mail restricted delivery on January 27, 2003, at 7500 East McDonald Dr., Suite 102A, Scottsdale, Arizona 85250 pursuant to Rule 16 and never responded to the Bar’s complaint.

STANDARD OF REVIEW

¶ 10. In matters pertaining to attorney discipline and reinstatement, we retain exclusive jurisdiction and are the ultimate judge of matters that arise under the Rules of Discipline for the Mississippi State Bar. Rules of Discipline for the Miss. State Bar Rule 1(a); Rogers v. Miss. Bar, 731 So.2d 1158, 1163 (Miss.1999) (citing Broome v. Miss. Bar, 603 So.2d 349, 354 (Miss.1992)). We review such matters of attorney discipline de novo. Miss. Bar v. Logan, 726 So.2d 170, 174 (Miss.1998); Miss. Bar v. Alexander, 697 So.2d 1164, 1168 (Miss.1997); Miss. Bar v. Carter, 678 So.2d 981, 983 (Miss.1996).

DISCUSSION

¶ 11. The Mississippi Bar presents this Formal Complaint pursuant to Rule 13 of the Rules of Discipline for the Mississippi State Bar. Rule 13 provides for the imposition of sanctions in this state as a result of sanctions imposed in another jurisdiction:

When an attorney should be subjected to disciplinary sanctions in another jurisdiction, such sanction shall be grounds for disciplinary action in this state, and certification of such sanction by the appropriate authority of such jurisdiction to the Executive Director of the Bar or to the Court, shall be conclusive evidence of the guilt of the offense or unprofessional conduct on which said sanction was ordered, and it will not be necessary to prove the grounds for such offense in the disciplinary proceeding in this state. The sole issue to be determined in the disciplinary proceeding in this state shall be the extent of the final discipline to be imposed on the attorney, which may be less or more severe than the discipline imposed by the other jurisdiction.

Thus, our sole inquiry is the kind and extent of discipline to be imposed on Inser-ra. We need not refer this matter to a Complaint Tribunal. Miss. Bar v. Strauss, 601 So.2d 840, 844 (Miss.1992) (stating that “the matter of reciprocal discipline is to be presented directly to this Court and not to a Complaint Tribunal”).

¶ 12. In assessing a sanction in an attorney discipline case, we apply the following nine criteria: (1) the nature of the misconduct involved; (2) the need to deter similar misconduct; (3) the preservation of the dignity and reputation of the profession; (4) the protection of the public; (5) the sanctions imposed in similar cases; (6) the duty violated; (7) the lawyer’s mental state; (8) the actual or potential injury resulting from the misconduct; and (9) the existence of aggravating and/or mitigating factors. Rogers, 731 So.2d at 1171 (citing Miss. Bar v. Felton, 699 So.2d 949, 951 (Miss.1997)). See also Miss. Bar v. Shah, 749 So.2d 1047 (Miss.1999); Attorney AAA v. Miss. Bar, 735 So.2d 294 (Miss.1999); Miss. Bar v. Logan, 726 So.2d 170 (Miss.1998); Alexander v. Miss. Bar, 725 So.2d 828 (Miss.1998).

¶ 13. We have no reported opinions on point sanctioning attorneys for the conduct for which Inserra was disciplined in Arizona. We have, however, imposed reciprocal discipline on attorneys for conduct ranging from failing to comply with court orders, Mississippi Bar v. Alexander, 669 So.2d 40 (Miss.1996), to being convicted of transporting stolen money and illegally structuring transactions, Mississippi Bar v. Thompson, 797 So.2d 197 (Miss.2000). See also Miss. Bar v. Walls, 797 So.2d 217 (Miss.2001) (issuing public reprimand and ordering restitution against attorney suspended by Fifth Circuit for failing to keep client informed, failing to file a brief timely, and failing to prepare for an appeal); Miss. Bar v. Shah, 749 So.2d 1047 (Miss.1999) (imposing six-month suspension on attorney suspended from practicing before bankruptcy courts because of improperly transferring client money in violation of order); Miss. Bar v. Gardner, 730 So.2d 546 (Miss.1998) (suspending attorney for one year based on two-year suspension rendered in Louisiana for commingling and converting client funds); Miss. Bar v. Pels, 708 So.2d 1372 (Miss.1998) (imposing 30-day suspension on attorney disbarred in the District of Columbia for placing settlement funds in an account used for both business operations and personal expenses and allowing balance to fall below amount required to satisfy third-party claims against the client’s funds); Miss. Bar v. Felton, 699 So.2d 949 (Miss.1997) (suspending attorney for 180 days for failing to comply with orders entered by the United States Bankruptcy Court); Miss. State Bar v. Edwins, 534 So.2d 218 (Miss.1988) (imposing two-year suspension following two-year suspension entered in Louisiana against attorney for failing to render a proper accounting of settlement funds in two workers’ compensation cases, charging excess fees, and commingling funds).

¶ 14. In the instant ease, Inserra’s trust account was overdrawn on four occasions due to electronic debits with a maximum negative balance of $237.13 that was immediately resolved. Also, Inserra submitted in mitigation during the Arizona proceedings affidavits from former clients attesting that, during Inserra’s representation of them, he never owed them any money. Furthermore, he fully cooperated with the State Bar of Arizona since the filing of its formal complaint.

¶ 15. The conduct for which Inserra was disciplined in Arizona surely warrants discipline in Mississippi. He neglected his trust account and allowed it to become overdrawn but never converted client funds for his own personal use, so it really cannot be said that he defiled the dignity and reputation of the legal profession. While no clients were prejudiced or harmed by such neglect, failing to maintain a balance sufficient to cover the electronic debits and maintain the requisite records and reconciliations warrants a public reprimand.

¶ 16. There remains in this case the issue of the relationship between In-serra’s current suspension for nonpayment of enrollment fees and the discipline imposed herein. Suspension for nonpayment of enrollment fees is an administrative matter between the attorney and the Bar and does not involve this Court. Pursuant to Miss.Code Ann. § 73-3-127 (2000), an attorney can be suspended for failing to pay enrollment fees and shall be reinstated upon payment of the delinquent fees and a penalty of one-half of those delinquent fees.

¶ 17. While Inserra is not a member in good standing, he should still be subject to discipline, whether a public reprimand or whatever other sanction the circumstances may warrant. The West Virginia Supreme Court of Appeals arrived at a similar conclusion, holding that the fact that an attorney was on suspension for nonpayment of dues was not controlling in a disciplinary proceeding where the attorney was convicted of felony embezzlement and breaking and entering. Comm. on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219, 220 (1989).

CONCLUSION

¶ 18. Pursuant to Rule 13, we accept the Disciplinary Commission of the Supreme Court of Arizona’s discipline of Daniel L. Inserra as conclusive proof of his failure to maintain properly his trust account. Reciprocal sanctions are warranted; therefore, we impose a public reprimand, see Rules of Discipline for the Miss. State Bar Rule 8.6(ii), to be enforced in the event Inserra ever seeks reinstatement under Miss.Code Ann. § 73-3-127 by curing his enrollment fee obligations.

¶ 19. DANIEL L. INSERRA SHALL BE PUBLICLY REPRIMANDED.

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

      . Rule 16 of the Rules of Discipline for the Mississippi State Bar concerns the jurisdiction of and notice and service on nonresident attorneys.


author: LEE, J., for the court.

text:
    Michael CURRY, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-00892-COA.
    Court of Appeals of Mississippi.
    June 24, 2003.
    Rehearing Denied Sept. 30, 2003.

      Michael Curry, Appellant, Pro Se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before McMILLIN, C.J., LEE and IRVING, JJ.
   LEE, J., for the court.

¶ 1. In 2000, Michael Curry was convicted on two counts of fondling and was sentenced to serve ten years for each count. The Panola County Circuit Court suspended the sentences, placing him on probation for five years. During the period that followed, Curry violated the conditions of his probation and, at his request, was ordered to participate in the Regimented Inmate Discipline (RID) Program. The court ordered that, should Curry fail to meet the requirements of the RID program, he would be sent to the general prison population to serve the remainder of his sentence. In November 2001, through a routine blood screening for new prisoners, Curry learned he had HIV. Rather than going to the RID program, Curry was placed in the unit at Parchman designated for HIV-infected prisoners.

¶ 2. In January 2002, Curry filed a motion for post-conviction relief. The circuit court dismissed the motion, and Curry now appeals to this Court. With the appeal, Curry argues that the diagnosis of his HIV status constitutes newly discovered evidence as would justify a reconsideration of his sentence. He also argues that denial of his entry into the RID program and placement in the HIV unit constitutes cruel and unusual punishment. We review Curry’s arguments on these points and find the trial judge did not err in dismissing Curry’s motion for post-conviction relief. We do, however, remand to the circuit court for proper sentencing, as explained herein.

DISCUSSION

I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING THE APPELLANT’S MOTION FOR POST-CONVICTION RELIEF?

¶3. Curry argues that due to his having HIV he is entitled, via the Americans with Disabilities Act and pursuant to caselaw from other states, to a mitigated sentence. ‘When reviewing a lower court’s decision to deny a petition for post-conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Smith v. State, 822 So.2d 298(¶ 3) (Miss.Ct.App.2001).

¶ 4. Curry’s motion for post-conviction relief contained in the record concerns a conviction for possession of cocaine. However, the record contains no documents relating to such conviction, and this Court is puzzled as to why Curry referred to such offense in his motion for post-conviction relief when no evidence exists that he was ever convicted of such crime. Regardless, Curry’s claim on appeal that his HIV status constitutes “newly discovered evidence” as to entitle him to a reconsideration of his sentence is without merit. Had such information been available to the judge, it would not have changed the fact that Curry violated the terms of his probation in failing to report to his probation officer, failing to reside at the address stated in his probation papers, and failing to pay fees, court costs and assessment as directed. Accordingly, we affirm the dismissal of Curry’s motion for post-conviction relief insofar as he sought to set aside the determination that a violation of probation had occurred. However, in light of the nature of Curry’s sentence and ensuing events, we conclude that further consideration is warranted in the matter of the court’s resulting sentence of Curry that permitted him to participate in the RID Program in hopes of obtaining an early release from confinement.

¶ 5. There is no question that the circuit court could have ordered Curry to immediately begin serving the entire balance of his original sentence once the court determined that he had violated the terms of his probation. However, it is also a fact that the circuit court has some discretion in the matter of further punishment after adjudicating a violation and may, in the exercise of its sound discretion, sentence the violator to something less than the entire unserved portion of the original sentence. Granting a probation violator the opportunity to be confined for a relatively brief time under the RID Program with the opportunity to earn an early release by successful completion of the program requirements is, in our view, an appropriate exercise by the circuit court of the discretion afforded it under Section 47-7-37 of the Mississippi Code. The opportunity to participate in the RID Program necessarily carries with it the possibility that the participant will not successfully complete the program and thereby forfeit his chance for an early release from confinement. However, in this case, Curry’s failure to successfully complete the RID Program did not occur because of any misconduct or similar failure on his part. Rather, it arose by virtue of a medical condition unknown to the circuit court — and, insofar as the record shows, to Curry — at the time of sentencing.

¶ 6. It seems apparent that the circuit court, in sentencing Curry after his probation violation, concluded that, despite his unsatisfactory behavior, he was nevertheless worthy Of some additional consideration for an appropriate sentence that was something less than the entire balance of his original sentence. Had Curry been removed from the RID Program because of misconduct on his part, then we would consider it entirely appropriate for him to be summarily returned to the general prison population to serve out the remainder of his sentence. However, in this instance, when Curry’s inability to participate in the program arose from a circumstance unknown to the sentencing court and one not traceable to any behavioral failing on Curry’s part, we conclude that to require Curry to serve the entire balance of his sentence in the general prison population does not necessarily reflect the evident intention of the trial court to devise an alternate sentence that was less severe than this available option. Whether the circuit court, armed with knowledge of Curry’s medical condition, would have arrived at a sentence that did not contemplate RID Program participation, but that was nevertheless something less than the entire balance of Curry’s sentence cannot be answered by this Court. That unanswered question on the present state of the record leads this Court to the conclusion that there is at least a possibility, “[tjhat there exists evidence of material facts, not previously presented and heard, that requires vacation of the ... sentence in the interest of justice” within the meaning of Section 99-39-5(l)(e) of the Mississippi Code. Miss.Code Ann. § 99 — 39—5(l)(e) (Supp. 2002). Accordingly, we remand to the circuit court for purposes of conducting a hearing at which the circuit court may reconsider Curry’s sentence if it determines that Curry’s medical condition is a “material fact” in the matter of determining an appropriate sentence.

¶ 7. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED BUT REMANDED FOR RECONSIDERATION OF SENTENCING. COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

McMILLIN, C. J., KING AND SOUTH-WICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIF-FIS, JJ., CONCUR.


author: GRIFFIS, J., for the Court:

text:
    Charles Stacy PIERCE, Appellant, v. Angela Harris Pierce CHANDLER, Appellee.
    No. 2002-CA-00141-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.
    Rehearing Denied Sept. 30, 2003.

      John W. Christopher, Ridgeland, Attorney for Appellant.
    Bentley E. Conner, Canton, Attorney for Appellee.
    Before SOUTHWICK, P.J., LEE and GRIFFIS, JJ.
   GRIFFIS, J., for the Court:

¶ 1. Charles Stacy Pierce and Angela Harris Pierce Chandler were awarded a divorce on September 11,1997. The original divorce decree initially awarded both parties joint physical and legal custody of their child. Additionally, the original agreement transferred physical custody of the child to Mr. Pierce when the child started school. On January 25, 2001, Ms. Chandler filed a motion for modification because the child was going to start school the next fall. The chancellor found that since the child would soon turn five and enter school, this constituted a material change in circumstances and awarded physical custody to Ms. Chandler. Finding the chancellor erred, we reverse and remand.

FACTS

¶2. Charles Stacy Pierce and Angela Harris Pierce Chandler were married on September 18, 1993. They had one child, a daughter, born in March of 1996. The couple was awarded a no-fault divorce in September of 1997. In the original divorce decree, the couple agreed to joint physical and legal custody of the child, each parent having her for a week at a time. They also agreed that when the child entered school, the father would have physical custody of her during the week and the mother would have her on the weekends.

¶3. In September of 1998, Mr. Pierce filed a petition to modify custody and a citation for contempt against Ms. Chandler. He alleged that under the original divorce decree, Ms. Chandler was to provide him with proof of drug and alcohol counseling and testing, and she failed to do so. Mr. Pierce argued this placed Ms. Chandler in contempt. He also claimed Ms. Chandler continued to use drugs and alcohol and this behavior constituted a material change in circumstances.

¶ 4. Ms. Chandler filed a counter-motion for contempt and modification of custody asserting that Mr. Pierce had not maintained health and accident insurance on the child and had carried on a sexual affair in the presence of the child. The chancellor found that both parties fell short of the degree of proof necessary to support their allegations and dismissed all motions and petitions. However, the chancellor added that “[b]oth parties are hereby made aware that when the child becomes 5-years-of-age and school becomes a factor of consideration then that factor will strongly be looked at by the Court as a material change in circumstances with regard to physical custody of the child.”

¶ 5. In January of 2001, Ms. Chandler filed a motion to modify custody. The child would soon be entering school, and Ms. Chandler claimed that this constituted a material change in circumstances warranting a change in custody. She asked the court to give her primary physical custody and control of the child. Mr. Pierce filed a counter-claim asking that he be awarded full custody of the child and child support.

¶ 6. In his findings of fact and conclusions of law, the chancellor concluded the child’s entrance into school was a material change and found the sole issue to be who should be given physical custody of the child. Considering each of the Albright factors, the chancellor ultimately held that Ms. Chandler should be given physical custody of the child. The chancellor’s reasoning for this was his concern that “Charles had not really formulated a plan for the child should he get physical custody. Angela had made more of an effort to do so.”

¶ 7. Mr. Pierce has perfected his appeal to this Court and asserts the chancellor erred in granting Ms. Chandler physical custody of the child. Additionally, he claims the chancellor abused his discretion by not allowing a child counselor to testify as an expert witness.

STANDARD OF REVIEW

¶ 8. Our scope of review in domestic matters is limited. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Denson v. George, 642 So.2d 909, 913 (Miss.1994). This is particularly true “in the areas of divorce and child support.” Nichols v. Tedder, 547 So.2d 766, 781 (Miss.1989). This Court is not called upon or permitted to substitute its collective judgment for that of the chancellor. Richardson v. Riley, 355 So.2d 667, 668-69 (Miss.1978). A conclusion that we might have decided the case differently, standing alone, is not a basis to disturb the result. Id.

ANALYSIS

I. WHETHER THE CHANCELLOR ERRED BY AWARDING PHYSICAL CUSTODY OF THE CHILD TO MS. CHANDLER.

¶ 9. “In cases involving a request for modification of custody, the chancellor’s duty is to determine if there has been a material change in the circumstances since the award of initial custody which has adversely affected the child and which, in the best interest of the child, requires a change in custody.” Sanford v. Arinder, 800 So.2d 1267, 1271(¶ 15) (Miss.Ct.App.2001). As such, the non-custodial parent must pass a three-part test: “a substantial change in circumstances of the custodial parent since the original custody decree, the substantial change’s adverse impact on the welfare of the child, and the necessity of the custody modification for the best interest of the child.” Id. at 1272(¶ 15) (quoting Brawley v. Brawley, 734 So.2d 237, 241(¶ 12) (Miss.Ct.App.1999)). This Court has routinely utilized this test in the area of child custody modifications. See Sanford, 800 So.2d at 1271(¶ 15); Thompson v. Thompson, 799 So.2d 919, 922(¶ 8) (Miss.Ct.App.2001); Brawley, 734 So.2d at 241(¶ 12). In order to clarify the type or magnitude of material changes that warrant a modification of custody, our supreme court explained that when the totality of the circumstances display a material change in the overall living conditions in which the child is found which are likely to remain changed in the foreseeable future and such change adversely affects the child, a modification of custody is legally proper. Kavanaugh v. Carraway, 435 So.2d 697, 700 (Miss.1983).

¶ 10. With this legal standard in mind, we turn to the case at hand. In order to determine whether or not the chancellor was manifestly wrong, clearly erroneous or abused his discretion in applying the custody modification test, we review the record of the proceedings in the lower court.

¶ 11. The chancellor found the child’s change in age constituted a material change in circumstances which adversely affected the child. His basis for this decision was that at that time, the child was alternating custody between the parents on a weekly basis. Since the child would not be able to continue this type of custody arrangement because of school attendance laws, the chancellor decided to place the child with her mother. In reviewing the original divorce decree, it is clear that both parties contemplated the child’s entering school and agreed on a schedule for her care at that point. The agreement specifically provided that:

Unless the parties mutually agree otherwise in writing, when the minor child of the parties enters school, the Husband shall have physical custody of the child each week from 6 p.m. on Sunday until 6 p.m. on the immediately succeeding Friday, and on any fifth weekend from 6 p.m. on Friday until 6 p.m. on the immediately succeeding Sunday.

¶ 12. A reading of the chancellor’s findings of fact shows the chancellor failed to consider this provision. Despite our limited scope of review, we find this was manifest error. When considering a modification of child custody, the proper approach is to first identify the specific change in circumstances, and then analyze and apply the Albright factors in light of that change. Sturgis v. Sturgis, 792 So.2d 1020(¶ 19) (Miss.Ct.App.2001). In this case the only change in circumstances considered by the chancellor is the child’s age. The supreme court held in Albright that:

Age should carry no greater weight than other factors to be considered, such as: health, and sex of the child; a determination of the parent that has had the continuity of care prior to the separation; which has the best parenting skills and which has the willingness and capacity to provide primary child care; the employment of the parent and responsibilities of that employment; physical and mental health and age of the parents; emotional ties of parent and child; moral fitness of parents; the home, school and community record of the child; the preference of the child at the age sufficient to express a preference by law; stability of home environment and employment of each parent, and other factors relevant to the parent-child relationship.

Albright v. Albright, 437 So.2d 1003, 1005 (Miss.1983). Additionally, this Court has held that a child’s change in age alone does not constitute a material change in circumstances. Best v. Hinton, 838 So.2d 306, 309(¶ 11) (Miss.Ct.App.2002). In Best, the child had recently turned twelve and expressed a desire to change physical custody from his mother to his father. Id. at 307(¶ 2). The father asserted this alone constituted a material change in circumstances which was adverse to the child. Id. The chancellor agreed and changed custody from the mother to the father. Id. at 307(¶4). This Court reversed and rendered concluding:

[I]n this case, there was no such declaration by the child of sound, reasonable, and compelling reasons why he thought a change of custody was in his best interest. That fact, in combination with our determination that Mr. Hinton presented no convincing evidence that the custodial situation with Mrs. Best had so deteriorated since the earlier adjudication as to adversely affect the child's welfare, convinces us that the chancellor abused his discretion in this instance.

Id. at 309(¶ 11).

¶ 13. Following our decision in Best, we simply cannot determine that there has been any change in the circumstances regarding the care of this child since the entry of the original custody agreement that would justify a modification. A provision placing the child in her father’s care when she enters school was provided for in the original divorce decree. Nothing which affects the overall living conditions of the child has occurred which would constitute a material change in circumstances. For this reason, we are compelled to find the chancellor erred in changing physical custody of the child from Mr. Pierce to Ms. Chandler. We reverse the decision and reinstate the custody provisions of the original divorce decree and remand to determine the amount of child support to be paid by Ms. Chandler. Since this decision is dispositive of Mr. Pierce’s second issue, we decline to consider its merits.

¶ 14. THE JUDGMENT OF THE CHANCERY COURT OF RANKIN COUNTY IS REVERSED AND REMANDED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: CHANDLER, J., for the court. SOUTHWICK, P.J.,

text:
    Earl Harvel SWAN, Jr. d/b/a Big Buck’s B-B-Q Smokehouse, Inc., Appellant, v. Jack HILL d/b/a Kar Kleen, Appellee.
    No. 2002-CA-00621-COA.
    Court of Appeals of Mississippi.
    July 15, 2003.

      Everette Verhine, Vicksburg, for appellant.
    Kenneth M. Harper, Vicksburg, Wes W. Peters, Jackson, for appellee.
   CHANDLER, J., for the court.

¶ 1. The County Court of Warren County granted an easement to Jack Hill over land owned by Earl Harvel Swan, Jr. Swan appealed to the Chancery Court which affirmed the granting of an easement by the County Court. Aggrieved by the judgment, Swan appeals asserting the following issues:

I. WHETHER THE TRIAL COURT LACKED JURISDICTION IN AWARDING HILL AN INJUNCTION.

II. WHETHER THE TRIAL COURT ERRED IN GRANTING HILL AN EASEMENT BY NECESSITY.

II. WHETHER HILL ESTABLISHED THAT HE HAD AN EASEMENT BY PRESCRIPTION.

IV. WHETHER THE TRIAL COURT ERRED IN ORDERING AN OVERLY BROAD, VAGUE AND UNDULY BURDENSOME EASEMENT.

¶ 2. Finding that the trial court erred, we reverse and render.

PROCEDURAL HISTORY

¶3. On March 29, 2000, Hill filed a complaint with the County Court of Warren County requesting an easement across Swan’s property. He also asked the court to grant him a temporary restraining order or preliminary injunction against Swan. On April 10, 2000, the county court ordered Swan to refrain from altering the use of Hill’s land that impeded or conflicted -with the prior historical use of the land.

¶ 4. At trial, on March 28 and 29, 2001, the court granted Hill an easement by necessity and the jury awarded $6,000 in compensatory damages and $4,000 in punitive damages. The chancery court affirmed the lower court’s decision on appeal, and now Swan appeals to this Court.

FACTS

¶5. Swan, owner of “Big Buck’s BBQ Smokehouse,” and Hill, owner of “Kar Kleen” carwash, are neighboring landowners in Warren County. Swan’s restaurant is located on the corner of Clay and Hope Street, facing Clay Street. Clay Street is a major thoroughfare off Interstate 20 entering downtown Vicksburg. Hope Street is a side street which accesses Hill’s car-wash, an apartment complex, and a few private homes.

¶ 6. Swan’s property is located between Clay Street and Hill’s carwash. Hill’s property does not border Clay Street at any point but does border Hope Street. A bowling alley, Red Carpet Lanes, is located to the side of the carwash and the restaurant. The area in dispute consists of approximately 25 by 62 feet behind the restaurant.

¶ 7. All three businesses were developed and owned by Dr. and Mrs. M.E. Hinman over thirty years ago. The Hinmans later sold the three properties separately. Pri- or to buying the carwash in 1985, Hill managed the property for approximately ten years. The Hinmans sold the bowling alley to John Magruder in 1993 and the restaurant to Lawrence Nosser in 1994. In December of 1999, Nosser sold his interest in the restaurant to Swan.

¶ 8. Hill, Magruder and Nosser testified that the parking lot which connects the restaurant, carwash, and bowling alley has been open and free of any obstruction for the past thirty years. They stated that Hill’s customers access the carwash by either driving through the parking lot of the restaurant and the bowling alley or through the Hope Street entrance. A sign located on Clay Street for over ten years directs the public to the carwash behind the restaurant. Swan acknowledged that he was aware Hill’s customers were accessing the carwash through the restaurant’s parking lot.

¶ 9. After Swan bought the restaurant, he began to refurbish and remodel the premises. The renovations included moving a dumpster to the corner of the property and building a fence that was approximately eight feet tall and extended to the bowling alley’s property line. These new changes instigated disputes over the property between Swan and Hill.

¶ 10. Swan stated that he moved the dumpster to keep it away from his newly built smoker because he saw it as a possible health hazard. He also said he built the fence in order to protect the restaurant from potential liability due to all the cars traveling across his property.

¶ 11. In 1988, Hill built an automatic carwash ten to twelve feet from Swan’s property line. A customer must enter the automatic carwash on the side facing the restaurant. Hill testified that Swan placed the dumpster and the fence in front of the automatic carwash impeding his customers’ ability to maneuver into the carwash. He also stated that the fence blocked visibility of the carwash from Clay Street. The fence was constructed approximately five days prior to the court’s temporary restraining order.

¶ 12. Swan testified that the fence did not completely block access to the car-wash. He stated that Hill’s customers could access the carwash through Hope Street and through Clay Street by traveling over the right side of the bowling alley’s property. Hill testified that it was virtually impossible to maneuver through the bowling alley’s property because it was only twenty feet wide and the bowling alley’s employees generally parked along that side.

¶ 18. Magruder and Nosser testified that Hill had over the years helped maintain the parking lot that connected all properties by filling in potholes. In July of 2000 Hill filled in potholes located on his property and Swan’s property. He testified that after completion, Swan recreated the potholes by shoveling out the asphalt and placing it on the doorstep of Hill’s office. Swan admitted that he did this act and stated that it was out of “pure meanness.”

I. DID THE COUNTY COURT LACK JURISDICTION TO ENTER AN INJUNCTION AGAINST SWAN?

¶ 14. The county court “shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed ... the sum of $75,000.” Miss.Code Ann. § 9-9-21(1) (Rev.2002). However, Miss.Code Ann. § 9-9-23 (Rev.2002) states:

The county judge shall have power to issue writs, and to try matters, of habe-as corpus on application to him therefor, or when made returnable before him by a superior judge. He shall also have the power to order the issuance of writs of certiorari, supersedeas, attachments, and other remedial writs in all cases pending in, or within the jurisdiction of, his court ... But he shall not have original power to issue writs of injunction, or other remedial writs in equity or in law except hereinabove specified as being within his jurisdiction unless a judge authorized to do so refers it to the county court.

Therefore, the two statutes seem to contradict one another.

¶ 15. In Welch v. Bryant 157 Miss. 559, 563, 128 So. 734, 736 (1930), the court held that the county court lacked power to issue an injunction to prohibit someone’s further employment. The court held that this was an issue of civil rights and not appropriate for the county court. Id. However, a more recent case, citing Miss.Code Ann. § 9-9-21(1), stated that a “claim for specific performance of a contract of employment plus attendant injunctive relief is well within the jurisdiction of the county court on its equity side.” Lee v. Coahoma Opportunities, Inc., 485 So.2d 293, 294 (Miss.1986).

¶ 16. Also in Welch the court stated that where “property or property interests” are involved, the county court has appropriate jurisdiction. Welch, 157 Miss, at 563, 128 So. at 736. Two cases have indicated that a county court has jurisdiction to rule on acts of replevin. McCoy v. McRae, 204 Miss. 309, 320, 37 So.2d 353, 356 (1948) and Vansant v. Dodds, 164 Miss. 787, 801, 145 So. 613, 614 (1933). Therefore, this Court finds that the injunc-tive order granted by the county court judge was within the meaning of the relevant statute as that statute has been interpreted by case law.

II. DID THE TRIAL COURT ERR IN GRANTING HILL AN EASEMENT BY NECESSITY?

¶ 17. “It is well established in our law that an easement may be created by grant, implication, or prescription.” Screws v. Watson, 755 So.2d 1289, 1293(¶ 7) (Miss.Ct.App.2000) (citing Gulf Park Water Co., Inc. v. First Ocean Springs Development Co., 530 So.2d 1325, 1330 (Miss.1988)). “An implied easement must be continuous, apparent, permanent and necessary.” Id. The terms easement by necessity and easement by implication are used interchangeably. Broadhead v. Terpening, 611 So.2d 949, 952-53 (Miss.1992). “The burden of proof is on the claimant seeking an easement by necessity; the party must establish that he is implicitly entitled to the right of way across another’s land.” Leaf River Forest Products v. Rowell, 819 So.2d 1281, 1284(¶ 11) (Miss.Ct.App.2002).

¶ 18. Mississippi case law establishes that an easement by necessity may be created by proving only reasonable necessity rather than absolute physical necessity. Fourth Davis Island Land Company v. Parker, 469 So.2d 516, 520 (Miss.1985). Therefore, the court will grant an easement where the land is not necessarily landlocked but would be “highly convenient or essential to the full enjoyment of the land.” Id.

¶ 19. The concern of the court is only whether alternative routes exist. Id. at 521. If none exist then the easement will be considered necessary. Id. Where other alternatives exist, the court will grant an easement over the neighboring landowner’s property if it is the only reasonably necessary alternative available. Id.

¶ 20. The trial judge agreed with Hill's assertion that he had obtained an implied easement due to the historical use of the land. It is clear from the record that Hill’s property can be accessed from Clay and Hope Streets. Therefore, this Court must determine if accessing Hill’s property through Swan’s property is the only reasonably necessary alternative. We conclude that it is not.

¶ 21. In determining what is reasonably necessary, the court looks to “whether an alternative would involve disproportionate expense and inconvenience.” Id. “Such a situation would arise when the expense of making the means of access available would exceed the entire value of the property to which access was sought.” Mississippi Power Company v. Fairchild, 791 So.2d 262, 266(¶ 11) (Miss.Ct.App.2001) (quoting Marshall v. Martin, 107 Conn. 32, 139 A. 348, 350 (1927)). If the land would be useless and valueless without the easement then the landowner is entitled to an easement. Id.

¶ 22. An easement is reasonably necessary if the landowner’s only alternative route is by budding a bridge. Alpaugh v. Moore, 568 So.2d 291, 295 (Miss.1990); Rotenberry v. Renfro, 214 So.2d 275, 278 (Miss.1968); Mississippi Power Company, 791 So.2d at 267(¶ 16). However, the court does not award easements when an alternate route exits but it is longer and more inconvenient. Wills v. Reid, 86 Miss. 446, 452, 38 So. 793, 795 (1905); Ganier v. Mansour, 766 So.2d 3, 8 (Miss.Ct.App.2000); Screws v. Watson, 755 So.2d 1289, 1294(¶ 8) (Miss.Ct.App.2000).

¶23. Hill asserts that Swan’s obstructions caused his business to suffer lost profits during the year 2000. Joyce Hill, Hill’s wife, testified without providing any documentation, that sales from the automatic carwash were $2,000 less than the previous year. Hill also stated that it would take two months to reconstruct the automatic carwash and that the project would be costly. Hill provided no estimate of the cost of remodeling his carwash or of the worth of his business. Due to Hill’s failure to establish a disproportionate expense in using the alternate routes available to him, Hill failed to prove that he was entitled to an easement by necessity.

III. WHETHER HILL ESTABLISHED THAT HE HAD AN EASEMENT BY PRESCRIPTION.

¶ 24. “An easement by prescription arises where another’s property is used for access without consent of the owner.” Property Ownership, in 7 JEFFREY JACKSON & MARY MILLER, ENCYCLOPEDIA OF MISSISSIPPI LAW 19, § 60:23 (2001). Prescription is shown by use which is: (1) open, notorious and visible; (2) hostile; (3) under a claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years. Rawls v. Blakeney, 831 So.2d 1205, 1207(¶ 8) (Miss.Ct.App.2002).

¶25. In Hill’s complaint he argued that he obtained a prescriptive easement because of the period of time he had been using the parking lot. However, the period of time does not begin to run until some form of objection to the use is made by the landowner. Sharp v. White, 749 So.2d 41, 42(¶ 8) (Miss.1999). In Hill’s situation, Swan did not make an objection until January 2000 when he began to remodel the property. Therefore, the continuous and uninterrupted use of the property did not begin until January of 2000. Prior to Swan’s ownership, Hill simply had the enjoyment of a mere permissive right of passage.

IV. WHETHER THE TRIAL COURT ERRED IN ORDERING AN OVERLY BROAD, VAGUE AND UNDULY BURDENSOME EASEMENT.

¶ 26. Because of this Court’s ruling on the preceding issues, this question is now moot.

¶ 27. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS REVERSED AND RENDERED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, P.J., BRIDGES, THOMAS, LEE, IRVING AND MYERS, JJ„ CONCUR. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J. AND GRIFFIS, J.

SOUTHWICK, P.J.,

CONCURRING.

¶ 28. With respect for the opinion of the majority, I interpret differently both the statute on county court jurisdiction and the rules for easements by necessity. Still, I concur in the result.

County court jurisdictional statute

¶29. The majority finds a conflict between the statute that provides generally that county courts will have jurisdiction concurrent with chancery and circuit courts, and another statute that could be seen as restricting injunction authority. Miss.Code Ann. §§ 9-9-21 & 9-9-28 (Rev. 2002). I find no conflict. In my view, the injunction statute distinguishes between a county judge’s “original power” to issue an injunction, as opposed to the power in cases “pending in, or within the jurisdiction” of the county court. For ease of discussion, I have added numbers and created paragraphs to various key parts of the statute that discusses the authority over injunctions.

(1) The county judge shall have power to issue writs, and to try matters, of habeas corpus on application to him therefor, or when made returnable before him by a superior judge.
(2) He shall also have the power to order the issuance of writs of certiorari, supersedeas, attachments, and other remedial writs in all cases pending in, or within the jurisdiction of, his court.
(3) He shall have the authority to issue search warrants in his county returnable to his own court or to any court of a justice of the peace within his county in the same manner as is provided by law for the issuance of search warrants by justices of the peace.
(4) In all cases pending in, or within the jurisdiction of, his court, he shall have, in term time, and in vacation, the power to order, do or determine to the same extent and in the same manner as a justice of the peace or a circuit judge or a chancellor could do in term time or in vacation in such cases.
(5) But he shall not have original power to issue writs of injunction, or other remedial writs in equity or in law except in those cases hereinabove specified as being within his jurisdiction:
(6) Provided, however, that when any judge or chancellor authorized to issue such writs of injunction, or any other equitable or legal remedial writs herein-above reserved, shall so direct in writing the hearing of application therefor may be by him referred to the county judge, in which event the said direction of the superior judge shall vest in the said county judge all authority to take such action on said application as the said superior judge could have taken under the right and the law, had the said application been at all times before the said superior judge. The jurisdiction authorized under the foregoing proviso shall cease upon the denying or granting of the application.

Miss.Code Ann. § 9-9-28 (Rev.2002) (section numbers and paragraphs added).

¶ 30. The statute, on first reading, presents an analytical quagmire. After granting a county judge full authority in sections 1 through 4 to issue essentially all remedial writs, section 5 places some sort of limit on the authority as it pertains to suits seeking injunctive relief, then it grants additional power in section 6. Indeed, the language may seem a meaningless circular proposition. Section 5 seems to provide that the county court does not have jurisdiction to enter injunctions except in those cases where it has jurisdiction of the case, and in such a case it then does have authority to enter an injunction, with the proviso of section 6 then serving an unknown purpose.

¶ 31. However, with the aid of a historical look at the statutory jurisdiction of a county court judge, the reason for this apparently circular language becomes clear. Some judges have long had authority to issue injunctions in cases that are not otherwise within the jurisdiction of that court. A county court judge has not been granted that right. That is the reason for this difficult language.

¶ 32. The power of a circuit or a chancery judge to issue an injunction has been substantially broader than one might assume. Under Section 9-1-19, a circuit judge or a chancellor can issue an injunction “returnable to any court, whether the suit or proceedings be pending in the district of the judge or chancellor granting the same or not....” Miss.Code Ann. § 9-1-19 (Rev.2002) (emphasis supplied). At least some by the late 1920s perceived that this statewide authority for judges to grant injunctions no matter where a case arose was the subject of abuse. The commissioners responsible for drafting the Mississippi Code of 1930 prepared a booklet to explain to the Legislature their reasons for proposing changes in State law. They wrote the following about changes that they were recommending in the authority of circuit judges and chancellors to issue injunctions:

The first of these provisions relates to a situation that has caused some embarrassing spectacles not only in this state but in other states. Namely, when an affirmance of conviction in a criminal case has been had and the sentence is about to be executed then first one kind of a writ and then another has been presented round over the state from one judge to another until some judge is found who will grant a writ to hold up the execution, then when this is untangled and the sheriff is about to execute the sentence again then another writ is presented.

Miss.Code of 1930, Explanatory Booklet, Ch. 13 § 633.

¶ 33. Just four years before this explanation, the Legislature authorized the first county courts in the state. 1926 Miss. Laws ch. 131. In that statute, a county judge was denied the “original power to issue writs of injunction or remedial writs other than of habeas corpus, but when any judge authorized to issue such writs of injunction or remedial writs shall so direct in writing the hearing of applications therefor may be by him referred to or be returnable before the county judge, in which event the said direction of the superior judge shall vest in the said county judge all authority to take such action therein as the said superior judge could have taken under the right and the law, had the said application and the said hearing been at all times before the said superior judge.” 1926 Miss. Laws ch. 131, § 9. It appears that in that first statutory version, a county judge had authority to issue writs of injunction only if a “superior judge” delegated the right.

¶ 34. In 1930, the language that remains as section 9-9-23 was adopted. It constituted a substantial revision to the county judge’s former power over injunctions. The power was expanded to permit the issuance of certain writs including injunctions in all cases “pending in, or within the jurisdiction of, his court,” as stated in both sections 2 and 4 as I have enumerated the statutory sentences above; section 3 grants search warrant authority only within the judge’s county. Section 5 of the current statute then gave a proviso that there was no “original power to issue writs of injunction ... except in those cases” that were in the county court’s “herein-above specified” jurisdiction. That is saying nothing more than unlike the other courts that under section 9-1-19 had statewide jurisdiction to issue injunctions, the county court was limited to the issuance of injunctions in cases that otherwise fell within its jurisdiction. The last section, which I have enumerated “6,” still allowed a chancellor to send to the county judge a “hereinabove reserved” injunction issue. Therefore, on a case in which an injunction could be issued by a chancellor but not usually by a county judge, the chancellor could send the application to the county judge for a ruling. Section 1 has a similar effect.

¶ 35. Though perhaps not the clearest possible statute, that is because the context for the language is not immediately obvious. Coincident with the concerns raised by the 1930 Code commissioners about unlimited original injunction power in the constitutionally-created trial courts, a provision was written for the new statutory trial courts on the subject of injunctions. The county court statute limited injunction authority to cases otherwise properly brought to that particular county court. The statute did not allow litigants to bring still other injunction suits under an argument that the county judge had inherited the statewide authority of other judges.

¶ 36. In the case before us, the Warren County Court had jurisdiction of the underlying dispute as the amount in controversy did not exceed the county court’s jurisdictional limit and the cause of action arose in that county. This county court had authority to enter an injunction in this case. Unlike the majority, I do not find that the reason for the authority is that property interests are involved. The authority exists because the cause of action was properly the subject of suit in the Warren County Court. Therefore, the remedy of injunction is available.

¶ 37. There is nothing contradictory about sections 9-9-23 and 9-9-21.

Easement by necessity

¶ 38. A minor point begins my discussion. The majority begins its analysis of easements by necessity by noting that an absolute necessity is not required, only a reasonable one. Though the matter is not contested, omitted from the analysis is the threshold element that the tract that is blocked in its access to a public road must have once been joined with the tract over which the access is allegedly necessary. Dieck v. Landry, 796 So.2d 1004, 1008 (Miss.2001). That predicate for an easement by necessity exists here. Still, this should not to be overlooked, as necessity of access without historical unity of tracts creates no easement right.

¶ 39. In addition, though this is not a discovered factor in the Mississippi precedents, surely a necessity does not arise because of something that the party seeking the easement has done to his own property that restricts otherwise usable access. A party with an opening to a street who builds a wall blocking his own access cannot then turn to his neighbor and demand an alternative route.

¶ 40. I find that in the present case, the primary reason for the difficulty of access is the manner in which Hill placed the car wash on the lot. Of course, he did so prior to any issue of an objection to his use of the access across Swan’s property had arisen. Faith in one’s neighbor is laudable, but it is not a legally enforceable basis for an easement. Prior to creating this situation, it was incumbent on Hill to acquire more certain rights to the use of his neighbor’s land. He did not. He now, unfortunately, is left with some expensive consequences.

¶ 41. For these reasons, I concur in the determination that no easement was created.

McMILLIN, C.J., AND GRIFFIS, J., JOIN THIS SEPARATE WRITTEN OPINION.