author: EASLEY, J.,

text:
    Albert Junior CRAFT v. STATE of Mississippi.
    No. 2001-KP-01239-SCT.
    Supreme Court of Mississippi.
    Oct. 24, 2002.
    Rehearing Denied Dec. 12, 2002.
    Tom Sumrall, Pro Se, attorneys for appellant.
    Office of Attorney General by Charles W. Maris, Jr., attorney for appellee.
    Before McRAE, P.J., EASLEY and CARLSON, JJ.
   EASLEY, J.,

for the Court.

PROCEDURAL HISTORY .

¶ 1. Albert Junior Craft (Craft) was convicted in the Circuit Court of the First Judicial District of Harrison County of the crimes of (1) aggravated assault with a deadly weapon against Raymond Hubbard (Hubbard), a fireman, for shooting Hubbard and (2) possession of a firearm by a felon. He was thereafter sentenced as a habitual offender, to serve concurrent terms of twenty years and three years, respectively, day for day without parole, in the custody of the Mississippi Department of Corrections. The trial court- denied Craft’s motion for a new trial. Feeling aggrieved by the judgments thus entered against him, Craft appealed. His counsel, Tom Sumrall (Sumrall), however, believing that the appeal is frivolous, filed a brief in compliance with the Turner v. State, 818 So.2d 1186 (Miss.2001). Craft has also filed his own pro se supplemental brief.

FACTS

¶ 2. Craft’s attorney, Sumrall, represents to this Court that in his opinion the trial record does not support an appeal. Sumrall sets out that he thoroughly scoured the record three times and considered all possible issues that might be raised on appeal without finding an issue for appeal. Sumrall filed a notice of appeal to this Court on August 6, 2001, and subsequently filed a brief setting out an abstract of the trial record indicating the testimony of all the State’s witnesses insofar as they relate to the elements of the crime. Sumrall found nothing at all in the record to support an arguable basis for an appeal. Sumrall notified Craft of his rights and his right to file a pro se supplemental brief.

¶ 3. The facts set out by Sumrall in his brief are as follows:

The first witness called by the state was [Hubbard], the victim. Hubbard testified that he knew Craft and he identified him in the courtroom. Hubbard said that on December 12, 1999, there was a cookout and present at the cookout was Craft, Nelson Craft [Nelson] ( [Craft’s] brother), Edwina Craft [Edwina] (Craft’s ex-wife), another man whom he did not name, Terry Brown [Brown] and Tracy Marshall [Marshall], Hubbard stated that Craft asked him if Derrick was messing with his old lady and Hubbard replied that Derrick didn’t know his old lady. Hubbard continued saying that before he could ever sit down good, he was laying on the ground. He said that the reason he was laying on the ground is that Craft shot him with a .38. He shot him in the chest on the left side a little beneath the collarbone and while he was still on the floor, Craft shot him in the back. Craft then put the pistol to the head of [Brown] and Hubbard asked Craft why he shot him. Craft’s response to that question was “He told me to squash it.” Hubbard further stated that [Nelson] and [Brown] took him to the hospital. In relation to Hubbard’s testimony, the state offered into evidence a Nautica shirt that Hubbard was wearing at the time of the shooting. The shirt has tears in it and blood on it that were not present at the time of shooting.
[Brown] was the second witness that the state called and Brown stated that he knew Craft and identified him in the courtroom. Brown said that he saw Craft on December 12, 1999, at a baby shower. According to Brown, Craft stood up and asked Hub [Hubbard] “was his cousin messing with his wife?” and Hub stood up and said “no, he wasn’t.” Brown continued that Craft shot Hubbard in the chest and then he shot him again in the back after Hubbard had fallen to the floor. Brown said that Craft then put the gun to his head. It was a .38 handgun. He further stated that he and [Nelson] took Hubbard to the hospital.
The next witness called by the state was [Edwina], [Craft’s ex-wife]. According to her, she was in attendance at the party on December 12, 1999, at [Marshall’s]. Craft asked Hubbard if his cousin was [f-g] his wife?”. Then Craft shot Hubbard.
The next witness to testify on behalf on the state was [Nelson], Craft’s brother. He said that his brother ... came to his house for a baby shower in December of 1999. He said when he arrived he was disturbed. He thought that Hubbard and Edwina were having a fling or something like that. He continued and said that [Craft] stood up and said to Hubbard “I heard you been messing with my woman,” and then pulled the gun out and shot him. He put the gun to the head of [Brown]. [Nelson] stated that he got his brother, [Craft] off Terry and then Craft shot [Hubbard] again. He said that he and [Brown] took [Hubbard] to the hospital.
The next witness called by the state was [Marshall] who testified that she was present at the shooting incident. She was in the kitchen, heard a gunshot and ran out the back door. She stated that [Nelson], [Craft], [Hubbard] and [Brown] were in the living room at that time. She did not see anything she only heard the shots.
Keith Gardner [Gardner] was the next witness to testify on behalf on the state. Gardner stated that he had known Craft since they were kids and he identified Craft in the [c]ourtroom. He stated that he saw Craft on December 12,1999, at his home late in the evening. Craft told him he was in trouble or something. The state called Ray Miller [Miller], a deputy sheriff with the Harrison County Sheriffs Department. Miller heard a dispatch broadcast that Craft was wanted on an [aggravated [a]ssault charge. He spotted Craft in the north Gulfport area. When he passed, the subject that matched dressing of Craft ... saw him and stepped in the back door of a residence. He drove by and called for backup and approached the residence. Officers stopped Craft as he was running out the front door of the house. Miller arrested him. The next witness called by the state was Eric Baker [Baker], a registered nurse working in the emergency room at Gulfport Memorial Hospital. Baker stated that he was on duty on December 12, 1999, and he saw Hubbard in the emergency- room. He had two gunshot wounds and he described the treatment given Hubbard and stated that one bullet was in the area of the shoulder and one was lower down in the chest cavity, “kind of in the kidney area”.
The last witness called by the state was Joey Tracy [Tracy], a Harrison County Sheriffs Deputy, who was an investigator. Tracy responded to the crime scene apartments on 34th Avenue in Gulfport to document the crime scene. He took numerous photographs using a 35mm camera. Tracy authenticated Exhibits 1, 2, 3 and 4, which the state had marked for identification and they were admitted into evidence through Tracy’s testimony.
It should be noticed that counsel for Craft made numerous objections throughout the trial, some of which were overruled but in the opinion of counsel would not be of such magnitude to warrant reversal of the trial. It should be further noted that although several witnesses testified that the victim was shot with a .38 caliber weapon, no weapon was ever produced at the trial. However, counsel does not believe that this is a significant issue in this appeal. The cases are numerous in which convictions are affirmed and also in which the weapon, which was the instrument of the crime, was never produced in Court.
At the conclusion of the state’s case, counsel for defendant made a Motion for a Directed Verdict which was overruled.
The defense announced that it would not call any witnesses and that the defendant did not desire to testify. The usual questioning by the Court to insure that Craft had been advised properly of his ,5th Amendment rights took place.
The Court: Have you visited with the defendant concerning his right to testify and his right not to testify?
[Sumrall]: Yes, sir. I have advised him. We talked about that on several occasions and I advised Mr. Craft that under the 5th Amendment that he has a right to testify or not to testify and that is strictly his decision and not mine. I can give him advice on him. But it’s strictly his decision and he was indicated to me every time that I brought up the subject that he is not going to testify.
The Court [questioned] Craft [as follows]:
[The Court]: You heard what your attorney said. Do you agree with what he said as to y’all’s discussion about this?
[Craft]: Yes, sir, I agree.
[The Court]: So I take it then it’s your own choice not to testify.
[Craft]: Yes, sir.

¶ 4. While Craft makes many unsupported and unconnected claims and allegations in his pro se brief, he attempts to raise the following issues on appeal:

I. Whether Craft was denied his constitutional right to a speedy trial.
II. Whether the trial court properly amended the indictment to charge him as a habitual offender.
DISCUSSION
I. Speedy Trial

¶ 5. In his pro se appeal, Craft argues that he was denied his constitutional right to a speedy trial. Craft filed various motions and demands that he receive a speedy trial, but no motion was ever called up to obtain a pre-trial ruling from the trial court. Craft did attempt during his sentencing phase to raise his motion for speedy trial, having already been found guilty. The trial court determined that waiting until the sentencing phase, having already gone to trial, to pursue the motion for speedy trial rendered the motion moot. Craft was arraigned on September 20, 2000, and the trial began on June 12, 2001, 265 days later. Craft does not set forth any specific prejudice or problems that resulted from the incarceration. “Alleged speedy trial violations are examined and determined on a case-by-case basis due to the factual specifics of each action.” Brengettcy v. State, 794 So.2d 987, 991 (Miss.2001). See also Sharp v. State, 786 So.2d 372, 377 (Miss.2001). The Court has “not set a specific .length of time as being per se unconstitutional” in reviewing a constitutional challenge for lack of speedy trial. Brengettcy, 794 So.2d at 992.

¶ 6. This Court has recently examined the constitutional right to a speedy trial and stated that pursuant to Miss.Code Ann. § 99-17-1 (2000), the 270 day speedy trial rule provides:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned. “The right to a speedy trial is guaranteed by the sixth and fourteenth amendments to the United States Constitution and Art. 3, § 26 of the Mississippi Constitution of 1890.” Watts v. State, 733 So.2d 214, 235 (Miss.1999). “The constitutional right to speedy trial attaches at the time when the defendant is first effectively accused of the offense.” Gray v. State, 728 So.2d 36, 47-48 (Miss.1998) (citing Perry v. State, 419 So.2d 194, 198 (Miss.1982)). This Court has held this to begin at the “ ‘time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge.’ ” Per ry v. State, 637 So.2d 871, 874 (Miss.1994) (quoting Lightsey v. State, 493 So.2d 375, 378 (Miss.1986)).

Mitchell v. State, 792 So.2d 192, 210 (Miss.2001).

¶ 7. When a denial of the constitutional right to a speedy trial is claimed, the four-part balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), must be employed. Mitchell v. State, 572 So.2d 865, 870 (Miss.1990); Kinzey v. State, 498 So.2d 814 (Miss.1986). In Taylor v. State, 672 So.2d 1246, 1258 (Miss.1996), this Court held:

In analyzing the constitutional right to a speedy trial, we must again visit the familiar realm of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and apply the four factors to the present case. The four Barker factors, to be balanced in light of surrounding circumstances, are: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of the right to a speedy trial; and, (4) prejudice to the defendant resulting from the delay.

¶ 8. The first step in this analysis is for Craft to satisfy the presumptively prejudicial element under Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Smith v. State, 550 So.2d 406, 408 (Miss.1989). “The delay is the triggering mechanism” and “must be presumptively prejudicial” or the analysis is halted. Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 2693, 120 L.Ed.2d 520 (1992); Jaco v. State, 574 So.2d 625, 630 (Miss.1990).

¶ 9. Once the trial court has determined whether the defendant’s incarceration is presumptively prejudicial to the defendant, the trial court must then examine the four factors laid out in Barker. The United States Supreme Court stated in Barker that, “until there is some delay which is presumptively prejudicial, there is not necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530, 92 S.Ct. at 2191.

¶ 10. We find that Craft’s claim fails on two grounds. First, Craft never pursued his motion for a speedy trial until the trial court began the sentencing phase. The trial court determined that the motion was moot since the trial had already been concluded. This Court has held that a party is obligated to seek a ruling on an objection or motion. A party making a motion must “follow up that action by bringing it to the attention of the judge and requesting a hearing upon it.” Sharplin v. State, 357 So.2d 940, 942 (Miss.1978). The movant bears the responsibility to “obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same.” Martin v. State, 354 So.2d 1114, 1119 (Miss.1978).

¶ 11. In Copeland v. State, 423 So.2d 1333, 1335 (Miss.1982), this Court reviewed the appellant’s argument on appeal that his constitutional rights were violated by a preindictment delay. This Court stated as follows:

This question is not before us because the record reveals that no objection or motion was presented to the trial court which would have alerted the judge to the fact that the delay may have prejudiced the appellant’s right and which, more importantly, would have allowed the state an opportunity to justify the delay. We steadfastly refuse to depart from our rule that, we will not consider an error raised for the first time on appeal, except in exceptional cases. See Brooks v. State, 209 Miss. 150, 46 So.2d 94 (1950). Such a rule is founded, in part, on the fair assumption that an accused, in the face of incarceration, will make and preserve all objections available to him. The rule is further supported by our hesitancy to place a trial judge in error on a matter not presented to him for decision. See Ponder v. State, 335 So.2d 885 (Miss.1976).

¶ 12. In the case sub judice, Craft is conclusively barred from raising this issue on appeal since he never presented the speedy trial issue below in a timely manner to secure a ruling from the trial court.

¶ 13. Second, the record reflects that Craft had multiple changes in the attorneys representing him. The record indicates that Craft had been represented by court-appointed counsel, Kay L. Wilkerson, then by voluntary contract criminal defender, Felicia Dunn-Cooper Burkes (Burkes), and then by court-appointed counsel Sumrall. The record reflects that Craft claimed he was not satisfied with the service of any of the listed attorneys. Notations in the record reflect that Craft had problems with every attorney the trial court provided for him.

¶ 14. While Craft did not timely bring his motion for speedy trial in order for the trial court to conduct a hearing, the fact that Craft had at least three different attorneys appointed to represent him cannot be ignored in considering Craft’s claim that he did not receive a speedy trial.

¶ 15. This Court has held that “[djelays associated with the switching of defense counsel are beyond the control of the State, and therefore, should be charged to the defendant.” Taylor v. State, 672 So.2d at 1259. See Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991).

¶ 16. Therefore, this Court finds that this issue is wholly without merit.

II. Habitual Offender Status

¶ 17. On the State’s motion, the trial court amended the indictment to reflect that Craft was a habitual offender pursuant to Miss.Code Ann. § 99-19-81 (2000). The State’s motion stated:

On August 12, 1985, he, the said ALBERT JUNIOR CRAFT, was convicted in the Circuit Court of Harrison County, Mississippi, First Judicial District, in Cause Number 20,336 of the felony of Burglary of a Dwelling, and, on August 12, 1985, in said [cjourt, was sentenced to a term of [tjen (10) years in the custody of the Mississippi Department of Corrections; and,
On October 24, 1985, he, the said ALBERT JUNIOR CRAFT, was convicted in the Circuit Court of Harrison County, Mississippi, First Judicial District, in Cause Number 20,623 of the felony of Grand Larceny, and, on October 24, 1985, in said [cjourt was sentenced to a term of [fjour (4) years in the custody of the Mississippi Department of Corrections, and on December 30, 1986, by [ojrder Nunc Pro Tunc was again sentenced to term of [flour (4) years in the custody of the Mississippi Department of Corrections; and against the peace and dignity of the State of Mississippi.
This information was not available to timely present to Grand Jury, accordingly this motion is tendered in the interest of [jjustice.

¶ 18. The order granting the amendment was executed on June 13, 2001. When the State’s motion to amend the indictment was taken up for consideration by the trial court, the record reflects the following exchange:

The Court: We’ve got those two motions pending. I’ve done some research on the amendment, and the only thing I had to do was determine whether or not there’s been a subsequent case to overrule the one that says they can amend the indictment to reflect the habitual portion.
Do you want to articulate the grounds upon which you object to the amendment?
Defense: No, sir. I’d just like for the record to reflect my objection.
The Court: Okay. Well, I’ll overrule it, and it will be an amendment, and if the jury should find him guilty ... will conduct a habitual offender hearing to determine whether or not he is an habitual offender, and if so, impose the appropriate penalty. Anything else?
State: Yes, sir. I’ve got an order.
The Court: You probably need to give me an order to that effect. Mr. Sum-rail, you’ve had a chance to look at it. I’m not asking you whether you agree to it or not, but in form it seems to be appropriate.
Defense: Yes, sir.
The Court: All right. The [cjourt has signed that. We’ll wait until we hear from the jury ...

¶ 19. During the sentencing phase, the trial court proceeded with the hearing as to habitual offender status. The record reflects the following exchange:

The Court: All right, then, on the issue of determining the status as to whether he’s a habitual offender, is the state ready to proceed?
State: Yes, sir, we are.
The Court: Mr. Sumrall, are you ready?
Defense: Yes, sir.
State: We would offer as the state’s next exhibit a certified copy of the order, and it’s styled order nunc pro tunc in Cause Number 20,623 in which Albert Craft was adjudged guilty of grand larceny, and he was actually sentenced on October 24 of 1985, but the order apparently said that the sentence was to be consecutive.
The order nunc pro tunc was entered December 30 of 1986 correcting that to show that the sentence was to run concurrently with the sentence in Cause Number 20,336. That was the order that was submitted as State’s Exhibit 6, and he was sentenced to four years on a charge of grand larceny in Cause Number 20,623.
The Court: You don’t have the one in '85?
State: Judge, I do not. It is on the records of this court, but this order in fact recites the dates and recites what the sentencing was, and it was left open for some post-plea motions and that sort of thing.
That is in fact in the order.
The Court: All right. Any objection?
Defense: No, sir.
The Court: Let it be marked and introduced into evidence.

(STATE’S EXHIBIT 7 IN EVIDENCE)

State: With that along with State’s 6 would be the two prior convictions reflecting the habitual status of this defendant.
The Court: And you rest?
State: Yes, sir.
The Court: Mr. Sumrall, you have any proof?
Defense: No, sir.
The Court: Nothing in direct?
Defense: No, sir.
The Court: All right. In view of the certified copies and in view of the fact that the Court takes judicial notice of all the minute entries in the First Judicial District of the Circuit Court of Harrison County, the Court finds beyond a reasonable doubt that the defendant has been twice previously convicted of felonies arising out of separate incidence for which he was sentenced to a year or more.

¶ 20. On appeal, Craft now argues for the first time that his “defense was unfairly surprised” by the amendment, even though, the record reflects otherwise. Craft never offered the trial court any evidence to show surprise from the State’s attempt to charge him as a habitual offender. Furthermore, Craft has failed to show how his defense was adversely affected by the amendment to the indictment. In fact, he did not even allege that his defense suffered. We find that the amendment was proper. See URCCC 7.09; Adams v. State, 772 So.2d 1010, 1019-21 (Miss.2000).

¶ 21. Accordingly, Craft’s second issue is without merit.

CONCLUSION

¶ 22. For the foregoing reasons, the judgment of the Harrison County Circuit Court is affirmed.

¶ 23. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF UNLAWFUL POSSESSION OF FIREARM OR WEAPON BY A FELON AND SENTENCE OF THREE (3) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. EACH COUNT SHALL RUN CONCURRENTLY FOR A TOTAL OF TWENTY-THREE (23) YEARS TO SERVE, SAID SENTENCE BEING WITHOUT BENEFIT OF PAROLE OR PROBATION.

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

      . URCCC 7.09 states as follows:
      All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss.Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.


source: Caselaw Access Project

author: SMITH, P. J., DIAZ, J.,

license: Public Domain

text:
    MISSISSIPPI POWER & LIGHT CO. v. Kenneth D. COOK.
    No. 2001-CA-00079-SCT.
    Supreme Court of Mississippi.
    Dec. 5, 2002.

      Andrew D. Sweat, Natie P. Caraway, James Lawton Robertson and James W. Snider, Jr., Jackson, attorneys for appellant.
    George McDowell Yoder, III, John G. Holaday, Jackson, James A. Woods, Jr., Tim Waycaster, Mary Margaret Waycaster, Natchez, David Wayne Baria, Jackson, attorneys for appellee.
   SMITH, P. J.,

for the Court.

¶ 1. The complaint in this matter was filed on July 31, 1991, by Kenneth D. Cook (“Cook”) against Mississippi Power & Light Company (“MP&L”) in the Circuit Court of the First Judicial District of Hinds County, Mississippi. After a change of counsel an amended complaint was filed on July 30, 1996. MP&L filed Motions to Dismiss, Summary Judgment and Partial Summary Judgment. All of these were denied.

¶ 2. On October 2, 2000, this matter came before the Hinds County Circuit Court, Honorable Tomie T. Green presiding and sitting with a jury. The jury returned a verdict for Cook for $150,000 in actual damages and $5,000,000 in punitive damages. Final judgment was entered on October 10, 2000, in favor of Cook.

¶ 3. Thereafter, Cook filed a Motion to Assess Attorneys’ Fees and Pre-Judgment Interest and was awarded $2,060,000. MP&L filed a Motion for Judgment Notwithstanding the Verdict, or, in the alternative for a New Trial. The trial court denied those motions on November 28, 2000, and this appeal followed.

FACTS

¶ 4. Kenneth Cook is a former employee of MP&L. He worked for MP&L from 1983 until September 26, 1989. Following an on the job injury (three are alleged), Cook received workers’ compensation benefits from MP&L and medical treatment. In making its determination to cut off Cook’s benefits completely, MP&L relied upon two reports from treating physicians which said Cook had a 15% permanent impairment to the right shoulder. Cook filed his claims with the Mississippi Workers’ Compensation Commission. MP&L and Cook reached a settlement, whereby MP&L paid Cook $55,000, which was approved by the Commission. However, in the settlement Cook reserved the right to bring a bad faith claim against MP&L. Shortly thereafter, Cook filed a complaint against MP&L in the Circuit Court of Hinds County asserting that MP&L halted his workers’ compensation benefits in bad faith, among other claims. A verdict was rendered by a jury in favor of Cook and he was awarded $150,000 in actual damages, $5,000,000 in punitive damages, and $2,060,000 in attorneys’ fees. Aggrieved, MP&L appeals to this Court.

STANDARD OF REVIEW

¶ 5. There are several standards of review that must be used in analyzing the issues in this appeal. First, when reviewing jury instructions on appeal, they must be read as a whole. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 968 (Miss.1999). Additionally, the standard of review of jury verdicts is as follows: (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985)).

Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.

¶ 6. The standard of review for the denial of a motion for directed verdict and a motion for judgment notwithstanding the verdict are identical. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). This Court will consider the evidence in light most favorable to the appellee, giving the appellee the benefit of all favorable inferences that may be reasonably drawn from the evidence. General Motors Acceptance Corp. v. Baymon, 732 So.2d 262, 268 (Miss.1999) (citing Steele, 697 So.2d at 376). If the facts are so overwhelmingly in favor of the appellant that reasonable jurors could not have arrived at a contrary verdict, this Court must reverse and render. Id. On the other hand, if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, this Court must affirm. Id.

¶ 7. The standard of review regarding attorneys’ fees is the abuse of discretion standard. “The fixing of reasonable attorneys’ fees is a matter ordinarily within the sound discretion of the trial court ....’’. Gilchrist Tractor Co. v. Stribling, 192 So.2d 409, 418 (Miss.1966). This Court has held:

It is well settled in this State that what constitutes a reasonable attorney’s fee rests within the sound discretion of the trial court and any testimony by attorneys with respect to such fees is purely advisory and not binding on the trial court. We will not reverse the trial court on the question of attorney’s fees unless there is a manifest abuse of discretion in making the allowance....

Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss.1999).

DISCUSSION

I. WHETHER PLAINTIFF COOK WAS ENTITLED TO MAINTAIN THIS ACTION FOR BAD FAITH REFUSAL TO PAY COMPENSATION BENEFITS CONSISTENT WITH THE DOCTRINE OF EXCLUSIVE ADMINISTRATIVE JURISDICTION WITHOUT HAVING FIRST SECURED RULINGS FROM THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION THAT HE WAS ENTITLED TO FURTHER BENEFITS, OR THAT MP&L HAD VIOLATED SOME DUTY TO COOK UNDER THE MISSISSIPPI WORKERS’ COMPENSATION LAW.

¶ 8. Miss.Code Ann. § 71-3-9 (2000) provides that liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee. While MP&L correctly states that the Mississippi Workers’ Compensation Law is the exclusive remedy provision for workers’ compensation, the independent tort of bad faith refusal to pay compensation is an exception to this provision. See S. Farm Bureau Cas. Ins. Co. v. Holland, 469 So.2d 55, 59 (Miss.1984); Luckett v. Miss. Wood, Inc., 481 So.2d 288, 290 (Miss.1985); McCain v. Northwestern Nat’l Ins. Co., 484 So.2d 1001, 1002 (Miss.1986); Leathers v. Aetna Cas. & Surety Co., 500 So.2d 451, 453 (Miss.1986). All of these cases “recognized exceptions to the exclusivity of the Act but only when based on tortious conduct subsequent to the work place injury.” Peaster v. David New Drilling Co., 642 So.2d 344, 348 (Miss.1994). Just as in the case sub judice, these cases involved bad faith refusal to pay benefits.

¶ 9. In order to prevail in a claim for damages for bad faith there must be a determination as to whether there was a legitimate or arguable reason to deny the benefits, Aetna Casualty & Surety Co. v. Steele, 373 So.2d 797, 801 (Miss.1979), and/or that the denial constituted a willful or malicious wrong in disregard for his rights. Weems v. American Sec. Ins. Co., 486 So.2d 1222, 1226-27 (Miss.1986). Really the only test set out in Miller v. McRae’s, Inc., 444 So.2d 368 (Miss.1984), is whether the injury is compensable under the act. The two prongs of the test are not separate requirements, but rather part of the inquiry into whether the injury is compensable. Furthermore, where there is a legitimate or arguable basis in the delay or denial of payments, there is no valid claim for punitive damages. Mutual Life Ins. Co. v. Estate of Wesson, 517 So.2d 521, 527 (Miss.1987).

¶ 10. MP&L argues that Cook should 'have exhausted his administrative remedies with the Worker’s Compensation Commission. Per Miss.Code Ann. § 71-3-53 (2000), Cook could have taken the opportunity to reopen his settlement agreement within one year from the actual settlement. However, based on the case law cited herein, bad faith refusal to pay benefits is clearly an exception to the Act and may properly be brought in the circuit court.

II. WHETHER CERTAIN CORE AND OUTCOME DETERMINATIVE ISSUES IN THIS CASE WERE WITHIN THE PRIMARY JURISDICTION OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION, BECAUSE OF WHICH COOK SHOULD NOT HAVE BEEN ALLOWED TO PROCEED WITHOUT FIRST SECURING RULINGS FROM THE COMMISSION THAT HE WAS ENTITLED TO FURTHER BENEFITS, OR THAT MP&L HAD VIOLATED SOME DUTY OWED TO COOK UNDER THE MISSISSIPPI WORKERS’ COMPENSATION LAW.

¶ 11. Campbell Sixty-Six Express, Inc. v. J. & G. Express, Inc., 244 Miss. 427, 141 So.2d 720, 725 (1962) states that the doctrine of primary jurisdiction “determines whether the court or the agency should make the initial decision.” As previously discussed, the Mississippi Workers’ Compensation Act is the exclusive remedy provision for workers’ compensation, however, the independent tort of bad faith refusal to pay compensation is an exception to this provision. Per the analysis of the first issue, this case was properly brought in circuit court.

¶ 12. MP&L states in its brief, “Cook much preferred to have the Circuit Court and its jury delving into issues that were at the core of the experience of the Commission and that were at the heart of the case, without the benefit of the Commission’s views.” It was Cook’s choice to decide where to bring this suit, and the circuit court clearly had jurisdiction.

¶ 13. MP&L argues that Cook should have brought the action under the Act based on a change of condition or because of a mistake in a determination of fact. However, Cook is not claiming a mistake in determining his disability but rather an independent tort which falls outside of the Act. Additionally, in Cook’s settlement agreement, he reserved the right to bring a bad faith claim against MP&L.

III. WHETHER COOK HAD FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES, AND, BEYOND THAT, HE WAIVED THEM.

¶ 14. Clearly Cook did not fail to exhaust his administrative remedies available to him. He settled his claim, and the order was approved by the Workers’ Compensation Commission along with his reservation of rights to bring a bad faith claim. Under the caselaw cited herein, the intentional tort of bad faith refusal to pay a claim falls outside of the Act and may be brought in circuit court. Under Miss.Code Ann. § 71-3-37(10) the Commission is entitled to approve settlements only when it is in the best interest of a “person entitled to compensation.” Thus, clearly Cook was entitled to compensation based on the settlement agreement approved by the Commission.

¶ 15. The cause of action asserted in this lawsuit by Cook is the bad faith intentional tort in handling his claim, which is recognized as falling outside of the authority of the Workers’ Compensation Commissions. Holland, 469 So.2d at 59. Further, MP&L did not have any pending claims before the Commission when it brought this lawsuit. We have held previously that a claimant could not maintain a bad faith action against an employer for refusal to pay for disputed medical services and supplies absent the Commission’s prior determination that those services and supplies were reasonable and necessary. Walls v. Franklin Corp., 797 So.2d 973, 974 (Miss.2001). However, what distinguishes that opinion from the present case is that Cook’s settlement claim had been approved by the Commission and nothing was left pending before them.

IV. WHETHER THERE WAS AN ARGUABLE BASIS TO DISCONTINUE COOK’S DISABILITY BENEFITS.

¶ 16. While MP&L argues that “Cook has offered nothing to show that MP&L has acted out of malice, with gross neglect or otherwise tortiously,” per the requirements of the Miller test, the denial of benefits does not have to be willful or malicious but there may not be an arguable basis to deny the claims. Miller v. McRae’s, Inc., 444 So.2d 368 (Miss.1984).

¶ 17. It is the trial judge’s responsibility to determine whether there was an arguable basis, legal or factual, for the denial or termination of benefits. Andrew Jackson Life Insurance Co. v. Williams, 566 So.2d 1172, 1184 (Miss.1990). However, most pertinent for the present case is Reserve Life Insurance Co. v. McGee, 444 So.2d 803, 809 (Miss.1983), where we have stated that “in the event the trial [judge] determines that as a matter of law it cannot hold that the insurer had a legitimate and arguable defensive position, but that the evidence constituted disputed facts as to whether or not such situation existed, then the trial [judge] should submit [the arguable basis and punitive damages] issue[s] to the jury.” This is exactly what the trial judge did in this case. In bad faith MP&L cut off Cook’s benefits entirely rather than paying appropriate disability for a 15% permanent impairment to the right shoulder, which is what two doctors’ reports found. The motion for a directed verdict was properly denied because the trial judge determined that there were disputed facts. The facts are not so overwhelmingly in favor of MP&L that we must reverse and render. In fact, they show that MP&L should have paid Cook for his 15% impairment rating.

V. WHETHER COOK’S CLAIM THAT HE WAS FORCED TO SETTLE UNDER DURESS FAIL PROCEDURALLY OR SUBSTANTIVELY.

¶ 18. Cook’s claim that he was forced to settle his workers’ compensation claim under duress does not fail either procedurally or substantively. MP&L once again argues that this case is improperly in the circuit court and that it should be. in front of the Workers’ Compensation Commission. Again, this argument is misplaced because a bad faith refusal to pay claim may be properly brought in circuit court. Holland, 469 So.2d at 59. Thus, procedurally this claim is not barred.

¶ 19. Cook’s claim of duress is part of his bad faith claim that he reserved the right to bring within his settlement with MP&L before the Commission. Thus, by the very nature of the claim, duress is a part of the claim for bad faith.

VI. WHETHER THE CIRCUIT COURT “MISHANDLED” COOK’S BANKRUPTCY “MANIFOLD.”

¶ 20. Under 11 U.S.C. § 521 a debtor in bankruptcy has a duty to file a listing of all of his assets and liabilities. Cook filed his Voluntary Petition under Chapter 7 of the Bankruptcy Act on September 10, 1993. However, he did not disclose this claim in the bankruptcy proceeding due to his belief that this claim would not amount to anything. Furthermore, his attorney advised him that it was not necessary to disclose this to the Bankruptcy Court. When MP&L sought to have the bankruptcy proceedings reopened, Cook amended Item 20 on Schedule B to reflect his claim on February 12, 1999.

¶ 21. The circuit court held that the bankruptcy documents could be used for impeachment, but the entire bankruptcy file could not be admitted into evidence because it might confuse the jury. The jury heard what Cook said was his reason for not disclosing this information to the bankruptcy court, and the jury was allowed to take this into consideration in determining the credibility of Cook. It is for the jury, not a reviewing court, to determine the credibility of a witness. See Groseclose v. State, 440 So.2d 297, 300 (Miss.1983); Independent Life & Acc. Ins. Co. v. Mullins, 252 Miss. 644, 173 So.2d 663, 664 (1965). The jury has the opportunity to observe the witness, whereas, a reviewing court does not have that luxury. Cook stated, “My attorney said as far as he was concerned the case was dead. He recommended it not be included.”

¶ 22. Judicial estoppel is a doctrine of law applied by a trial court to a situation where a party asserts one position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party opposite. Mauck v. Columbus Hotel Co., 741 So.2d 259, 264 (Miss.1999); Skipworth v. Rabun, 704 So.2d 1008, 1015 (Miss.1996). This Court stated the following in Beyer v. Easterling, 738 So.2d 221, 227 (Miss.1999):

Clearly, testimony given in a prior action does not estop the witness from testifying to the contrary in a subsequent action against one not a party to the prior action, where the former testimony was given by mistake or inadvertence or without full knowledge of the facts and is so explained by the witness in a subsequent action. In other words, the oath, to be binding as an estoppel, must be willfully false, or must have the effect of misleading the other party to his injury....28 Am.Jur.2d Estoppel and Waiver §§ 71, at 702 (1996)(foot-notes omitted).

Cook explained his actions in the bankruptcy proceeding, and it was correctly left to the jury to determine his credibility. Cook did not make a willfully false statement that led MP&L to injury. On the advice of counsel, Cook did not disclose the present lawsuit because he thought it was dead. Additionally, MP&L was not a debtor to whom Cook owed money in the bankruptcy proceeding. This issue is without merit.

VII. WHETHER THE COURT ERRED IN FAILING TO GRANT JURY INSTRUCTION D-14 REGARDING MP&L’S QUALIFIED PRIVILEGE TO COMMUNICATE WITH CIGNA REGARDING THE ADMINISTRATION OF A CLAIM MADE UNDER THE CIGNA POLICY.

¶ 23. Cook testified that his signature on a CIGNA authorization form gave MP&L authority to process his long-term disability payments. Based on this testimony it is clear that the jury could decide if they felt that MP&L acted with bad faith in notifying CIGNA of Cook’s pastor job that was in the newspaper. Certainly MP&L had an interest in keeping its payments down to CIGNA. It is clear from the release that Cook signed that MP&L had the authority to release to CIGNA any information regarding employment or income about Cook.

¶ 24. As stated previously herein, when reviewing jury instructions on appeal, they must be read as a whole. See Rials v. Duckworth, 822 So.2d 283, 286 (Miss.2002); Sentinel Indus. Contracting Corp., 743 So.2d at 968. It is not certain that taken as a whole the failure of the trial court not to include an instruction focusing on the relationship between CIGNA and MP&L would have affected the outcome of this trial. The jury was in a position to determine whether the actions made by MP&L in regards to CIGNA were made in bad faith. The testimony regarding the release was clearly in the record and there for the jury to consider in reaching its verdict.

VIII. WHETHER THE CIRCUIT COURT ERRED WHEN IT ALLOWED COOK TO CROSS-EXAMINE MP&L’S ROBERT HEMPHILL

ABOUT THE APPORTIONMENT STATUTE.

¶ 25. The portion of the statute that MP&L argues should not have been brought before the trial court is as follows:

(b) The employer and carrier does not have the power to determine the date of maximum medical recovery or percentage of apportionment. This must be done by the attorney-referee, subject to review by the commission as the ultimate fact finder.

Miss.Code Ann. § 71-3-7(b). Cook admits in his brief that “while the language of § 71 — 3—7(b) may not be strictly applicable to this case, it is not an incorrect statement of Mississippi’s workers’ compensation law.” That is a true statement in that the statute clearly reflects part of workers’ compensation law. However, in this context per MP&L’s witnesses, Martha Griffin and Robert Hemphill, the employer did not have the right to determine when a claimant had reached maximum medical recovery. However, this statute deals with apportionment while the present case clearly did not.

¶ 26. It should not have been brought before the trial court. However, it is harmless error.

IX. WHETHER THE COURT ERRED IN LIMITING THE TESTIMONY OF FORMER MWCC ADMINISTRATIVE LAW JUDGE MARTHA GRIFFIN.

¶ 27. “A trial judge’s determination as to whether a witness is qualified to testify as an expert is given the widest possible discretion and that decision will only be disturbed when there has been a clear abuse of discretion.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1357 (Miss.1990); Sheffield v. Goodwin, 740 So.2d 854, 856 (Miss.1999). MP&L cannot show that there was an abuse of discretion in the trial court limiting this testimony. We do not believe that it was error for the trial court to limit what Former MWCC Administrative Law Judge Martha Griffin was allowed to testify to in this case.

¶ 28. Cook cites a Fifth Circuit case, Owen v. Kerr-McGee Corp., 698 F.2d 236 (5th Cir.1983), wherein the Court interpreted Fed.R.Evid. 704 which Miss. R. Evid. 704 mirrors. In that case, the trial court limited an expert’s testimony as to the legal cause of an action. Id. at 239-40. There the witness was not allowed to testify to the ultimate issue because that is the role of the jury to determine. Id. Just as in the case sub judice, it was not for Martha Griffin to testify to the ultimate issue. That was for the jury to determine.

¶ 29. The compounded problem with Griffin’s potential testimony was that the jury may have placed too much weight on her opinion because she was actually an administrative judge sitting for the Commission when this claim came before it. MP&L was basically wanting to ask her how she would have ruled on a particular case such as this one. However, she was able to testify to key elements of the bad faith claim. For example, she gave testimony saying that it was not unusual for the term “maximum medical recovery” to not be used by physicians. The trial court did not err in limiting her testimony.

X. WHETHER JURY INSTRUCTION NO. 9 WAS REVERSIBLY ERRONEOUS IN FORM OR SUBSTANCE.

¶ 30. When reviewing jury instructions on appeal, they must be read as a whole. Sentinel Indus. Contracting Corp., 743 So.2d at 968. Jury Instruction No. 9 was given to the jury as follows in part:

You are instructed that under Mississippi law, the provisions of the Mississippi Workers’ Compensation Act are to be construed liberally and that doubtful cases are to be resolved in favor of compensation so that the beneficial purposes of the law will be achieved.

MP&L argues that the instruction is erroneous because that is the standard used in workers’ compensation cases before the Commission and should not be used in circuit court. However, when read in its entirety, we find that granting this instruction was not reversible error. The instruction continues as follows:

You are further instructed that under Mississippi law, a company’s refusal to pay a legitimate claim without or arguable reason, may give rise to an action for bad faith.
Therefore, if you find by a preponderance of the evidence in this case that Mississippi Power and Light refused to pay Kenneth Cook’s claim for workmen’s compensation benefits and did so without a legitimate or arguable reason, then you may assess damages against Mississippi Power and Light in accordance with the Court’s other instructions.

While the substance of the instruction is not correct, it is not reversible error when read as a whole. “Imperfections in particular instructions do not require reversal where all seen together fairly announce the primary rules applicable to the case.” See, e.g., Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1157 (Miss.1992); Purina Mills, Inc. v. Moak, 575 So.2d 993, 996 (Miss.1990); Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss.1989).

¶ 31. The standard cited in the beginning of the instruction is a standard used by the Workers’ Compensation Commission to determine benefits. However, its use in this instruction is not sufficiently prejudicial to MP&L to require a reversal.

XL WHETHER THE COURT ERRED IN CHANGING DEFENDANT’S JURY INSTRUCTION D-15 REQUIRING “ACTUAL KNOWLEDGE” AS AN ELEMENT OF BAD FAITH TO “KNEW OR SHOULD HAVE KNOWN,” THUS CONVERTING THE INTENTIONAL TORT OF BAD FAITH REFUSAL TO A NEGLIGENCE TORT.

¶ 32. Jury Instruction No. 8/D-15 reads as follows:

The Court instructs the jury that to prove a bad faith denial of workers’ compensation benefits against MP&L, Ken cook must prove
1. There was an intentional refusal by MP&L to continue temporary total disability benefits;
2. There was no legitimate reason or arguable basis for terminating the temporary total disability benefits; and
3. MP&L knew or should have known that there was no legitimate reason for paying the claim.
If you find that any one or more of the above hav.e not been proved by Ken Cook, then you cannot return a verdict or award damages in his favor.

MP&L correctly points out in its brief cases such as Patton-Tully Transp. Co. v. Douglas, 761 So.2d 835, 844 (Miss.2000), wherein the above language of “knew or should have known” is a negligence standard. MP&L correctly believes that the third part of the instruction which says “knew or should have known” was error in that it changes the standard to a negligence one. However, as Cook’s brief points out, the use of the word “intentional” in the first portion of the instruction sounds like an intentional tort instruction.

¶ 33. Again, viewing the jury instructions as a whole, this is also harmless error.

XII. WHETHER THE CIRCUIT COURT ERRED WHEN IT REFUSED TO VACATE THE JURY’S ASSESSMENT OF PUNITIVE DAMAGES ON GROUNDS

(A) PLAINTIFF’S PROOF FAILED TO SATISFY ANY OF THE LEGALLY APPLICABLE STANDARDS FOR THE ASSESSMENT OF PUNITIVE DAMAGES; AND/OR

(B) THE VERDICT WAS THE PRODUCT OF BIAS, PASSION AND PREJUDICE AGAINST MP&L.

¶ 34. “Mississippi law does not favor punitive damages; they are considered an extraordinary remedy and are allowed “within caution and with narrow limits.’ ” Life & Cas. Ins. Co. of Tenn. v. Bristow, 529 So.2d 620, 622 (Miss.1988). Punitive damages may not be assessed against the defendant unless the defendant “acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” Miss.Code Ann. § ll-l-65(l)(a)(2002).

¶ 35. There are several factors we have discussed in Mutual Life Ins. Co. v. Estate of Wesson, 517 So.2d 521, 532 (Miss.1987) which are general factors to consider in awarding punitive damages. Those include the following: (1) an amount necessary to deter defendant from such wrongdoing in the future; (2) an amount to make an example of the defendant; (3) and the financial worth of the defendant. Id. See also MIC Life Ins. Co. v. Hicks, 825 So.2d 616 (Miss.2002).

¶ 36. In Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), the United States Supreme Court determined that the jury’s award of punitive damages is not a finding of fact, but rather is expression of moral condemnation, and thus de novo review of that award is consistent with due process and does not impair the prevailing party’s right to a jury trial. Cooper also affirmed the three factors discussed in Mutual Life. 532 U.S. at 424, 121 S.Ct. 1678.

¶ 37. Where there is a legitimate or arguable basis in the delay or denial of payments, there is no valid claim for punitive damages. Mutual Life Ins. Co. v. Estate of Wesson, 517 So.2d at 527. The jury found in this case that there was no legitimate or arguable basis for MP&L to deny Cook’s workers’ compensation claim. Therefore, in the arena of the intentional tort of bad faith refusal to pay workers’ compensation, punitive damages would be appropriate in the present case. However, in BMW of North America, Inc. v. Gore, 517 U.S. 559, 574, 116 S.Ct. 1589, 1599, 134 L.Ed.2d 809 (1996), the Court stated, “[pjerhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.”

¶ 38. Based on the factors laid out in Mutual Life, the $5,000,000 awarded in this case is excessive and a remittitur should be entered in accordance with the authority of Miss.Code Ann. § 11-1-55 (2002). These damages are clearly based on prejudice and bias of the jurors because MP&L’s conduct is not so reprehensible to demand this degree of punishment. Based on the facts of this case, we hold that there should be a remittitur of $4,500,000 on the punitive damages of $5,000,000. If the appellee, Cook, accepts such remittitur so as to reduce the punitive damage award to $500,000 within ten days after judgment of this Court becomes final, then the award as reduced will be affirmed. Otherwise, the cause should be reversed and remanded to the circuit court for trial upon the issue of punitive damages. The verdict clearly evidenced bias and prejudice by the jury.

XIII. WHETHER THE CIRCUIT COURT ERRED PROCEDURALLY IN CONSIDERING PLAINTIFF’S MOTION FOR AN AWARD OF ATTORNEYS’ FEES WITHOUT ADEQUATE NOTICE OR OPPORTUNITY FOR HEARING OR CROSS-EXAMINATION AND WITHOUT REQUIRING THAT A COURT REPORTER BE PRESENT.

¶ 39. The standard of review regarding attorneys’ fees is the abuse of discretion standard, and such awards must be supported by credible evidence. Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 103 (Miss.1995). “The fixing of reasonable attorneys’ fees is a matter ordinarily within the sound discretion of the trial court....” Gilchrist Tractor Co. v. Stribling, 192 So.2d 409, 418 (Miss.1966). We have held:

It is well settled in this State that what constitutes a reasonable attorney’s fee rests within the sound discretion of the trial court and any testimony by attorneys with respect to such fees is purely advisory and not binding on the trial court. We will not reverse the trial court on the question of attorney’s fees unless there is a manifest abuse of discretion in making the allowance....

Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss.1999).

¶ 40. Absent some statutory authority or contractual provision, attorneys’ fees cannot be awarded unless punitive damages are also proper. Aetna Cas. & Sur. Co. v. Steele, 373 So.2d 797, 801 (Miss.1979). Where punitive damages are awarded by the jury, attorneys’ fees are justified. See Smith v. Dorsey, 599 So.2d 529, 549-50 (Miss.1992); Defenbaugh and Company of Leland v. Rogers, 543 So.2d 1164, 1167 (Miss.1989) Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 465 (Miss.1983). The reasonableness of an attorney’s fee award is determined by reference to the factors set forth in Rule 1.5 of the Mississippi Rules of Professional Conduct. This Rule provides in pertinent part:

(а) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(б) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

Miss. R. Profl Conduct 1.5. See also Richardson v. Canton Farm Equip., Inc., 608 So.2d 1240, 1256 (Miss.1992); Carter v. Clegg, 557 So.2d 1187, 1192 (Miss.1990); McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). These factors are sometimes referred to as the McKee factors. In addition to these factors, the Legislature gives additional guidance to courts in determining the reasonableness of attorney’s fees by instructing the court to “make the award based on the information already before it and the court’s own opinion based on experience and observation.... ” Miss. Code Ann. § 9-1-41 (1991).

¶ 41. The trial court found in its Final Judgment Ordering Payment of Plaintiffs Attorney Fees the following:

The court finds that the herein cause has been litigated for more than nine (9) years at considerable risk to plaintiffs counsel. Additionally, Defendant removed the case to federal court in 1996, requiring plaintiff to litigate the matter in both state and federal court. Plaintiffs counsel was successful in having the case remanded to state court. Much time and labor have been expended in bringing this case to trial. Plaintiff has provided evidence that the contingency fee contract is reasonable as it relates to similarly litigated cases. The difficulty of litigating a cold case, as well as, employing a somewhat novel approach regarding the prosecution of an employee’s claim against an employer attests to the reasonableness of the award of attorney fees. Plaintiffs attorneys David Baria and Tim Waycaster are reputable attorneys in the community and are both known for their diligence and thoroughness in representing their clients’ interests. Moreover, the jury’s total award of $150,000.00 compensatory and $5 million punitive damages justify plaintiff award of attorney fees in compliance with the terms of the contingency fee contract.

While it appears that the trial court may have considered some of the Rule 1.5 factors, some of the findings are clearly inaccurate. For example, the statement that the case has been litigated for 9 years is misleading. Cook’s present counsel began representing him on May 6,1996, while the trial was held in October 2000. Furthermore, there is no record of the proceedings wherein the attorneys’ fees were awarded by the circuit judge because a court reporter was not allowed to record the proceedings. Additionally, there is no record of the fee customarily charged in this locality or the time and labor required.

¶ 42. Clearly, the trial judge abused her discretion in awarding this extreme amount of attorneys’ fees. The McKee factors should have been applied by the trial judge in determining the amount of attorneys’ fees to be awarded, and any award should be supported with factual determinations. Browder v. Williams, 765 So.2d 1281, 1288 (Miss.2000). The award of attorneys’ fees should be vacated and remanded to the trial court. The trial judge should reconsider this issue in light of the McKee factors and support a new award, if any, based on findings of fact and conclusions of law concerning those specific factors. Additionally, the trial judge should rule accordingly in light of the re-mittitur. If the remittitur is not accepted by the plaintiff, and a new trial is ordered and no punitive damages are awarded by the jury, then attorneys’ fees cannot be awarded by the trial court.

CONCLUSION

¶ 43. We affirm the judgment to the extent that it awarded Cook $150,000 in compensatory damages. We remit punitive damages of $5,000,000 to $500,000. If Kenneth D. Cook accepts such remittitur so as to reduce the punitive damage award to $500,000 within ten days after the judgment of this Court becomes final, then the award as reduced will be affirmed. The award of attorneys’ fees is vacated and remanded to the trial court for further proceedings consistent with this opinion. Additionally, a hearing should be held by the trial judge in accordance with this opinion to determine attorneys’ fees strictly adhering to the McKee factors. Otherwise, the cause is reversed and remanded to the trial court for trial upon the issues of punitive damages. If punitive damages are thereafter awarded by the jury, then the award of attorneys’ fees should be addressed by the trial judge specifically using the McKee factors in her determination. However, if no punitive damages are awarded by the jury,-then attorneys’ fees are clearly not to be awarded by the trial judge.

¶ 44. AFFIRMED IN PART AS TO COMPENSATORY DAMAGES; PUNITIVE DAMAGES REMITTED TO $500,000 AND AFFIRMED AS REMITTED IF SUCH REMITTITUR IS ACCEPTED BY KENNETH D. COOK WITHIN TEN (10) DAYS AFTER JUDGMENT OF THIS COURT IS FINAL; IF REMITTITUR IS NOT ACCEPTED PUNITIVE DAMAGE AWARD IS REVERSED AND REMANDED FOR A NEW TRIAL ON PUNITIVE DAMAGES ONLY; VACATED AND REMANDED AS TO ATTORNEYS’ FEES.

PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ„ CONCUR. EASLEY, J., CONCURS IN PART. DIAZ, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND GRAVES, J.

DIAZ, J.,

Concurring in Part and Dissenting in Part:

¶ 45. While I agree with most of the majority’s opinion in the case, I believe that the remittitur is not warranted by the facts presented in this case. “We are not authorized to disturb a jury verdict regarding punitive damages because it ‘seems too high’ or ‘seems too low\ Only where the verdict is so excessive that it evinces passion, bias and prejudice on the part of the jury so as to shock the judicial conscience may we interfere.” Life Ins. Co. of Mississippi v. Allen, 518 So.2d 1189, 1194 (Miss.1987).

¶ 46. “[T]he primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.” Fred’s Stores of Miss. Inc. v. M & H Drugs, Inc., 725 So.2d 902, 918 (Miss.1998). “Once it is established that punitive damages in some amount should be allowed, the quantum thereof is determined by reference to certain general factors which include: (1) Such amount as is necessary for the punishment of the wrongdoing of the defendant and deterring similar conduct in the future; (2) Such amount as is reasonably necessary to make an example of the defendant so that others may be deterred from the commission of similar offenses; and (3) The pecuniary ability or financial worth of the defendant.” Bankers Life & Cas. Co. v. Crenshaw, 483 So.2d 254, 278 (Miss.1985), affd on other grounds, 486 U.S. 71, 108 S.Ct. 1645, 100 L.Ed.2d 62 (1988).

¶ 47. Punitive damages were awarded in this case to punish MP&L and to deter similar conduct in the future. With this remittitur this Court destroys the effectiveness of our own decision. MP&L consciously decided to deny Cook’s workers’ compensation claim with no legitimate or arguable basis to do so.

¶ 48. This Court has in the past found penalties equaling 5 1/4% of net worth of companies were justified to accomplish the purpose of punitive damages. Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1191 (Miss.1990). We have upheld punitive damage awards equaling 150 times and 43 times the amount of actual damages. Paracelsus Health Care Corp. v. Willard, 754 So.2d 437, 445 (Miss.1999). See also Cooper Tire & Rubber Co. v. Tuckier, 826 So.2d 679 (Miss.2002).

¶ 49. Here, MP&L’s net worth was estimated to be $476,215,000. This being so, a penalty in the amount of $5,000,000 would equal 1.05% of the company’s net worth and is 33 1/3 times the actual damages awarded. In contrast, a punitive damage award of only $500,000 would equal 0.1% of the company’s net worth and 3 1/3 times the actual damages. This is not a deterrent to a company of this worth and size.

¶ 50. In light of the facts presented, I cannot find a justification for this remitti-tur. The jury, assembled from the citizens of Mississippi, heard the facts presented by both parties and as a group, decided that $5,000,000 would punish MP&L and deter similar future conduct. “We have held that in the event the jury awards punitive damages, the amount is solely within the jury’s discretion unless arbitrary or unreasonable.” Commodore Corp. v. Bailey, 393 So.2d 467, 471-72 (Miss.1981). There is nothing in the record to indicate that the jury’s decision was arbitrary and unreasonable, and I would affirm its decision on punitive damages.

¶ 51. The jury decision on punitive damages was well within reason and in line with previous cases decided by this Court. Since the majority’s lowering the amount of the punitive damages imposed on MP&L does not correctly reflect the very reason punitive damages are awarded in Mississippi, I respectfully dissent.

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


text:
    Larry McPHAIL v. CITY OF LUMBERTON, Mississippi.
    No. 2001-CA-01816-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.

      Orvis A. Shiyou, Hattiesburg, attorney for appellant.
    William E. Andrews, III, Purvis, attorney for appellee.
    Before McRAE, P.J., EASLEY and CARLSON, JJ.
   EASLEY, J.,

for the court.

¶ 1. On April 1, 1999, the Board of Aldermen (Board) for the City of Lumberton (Lumberton), Mississippi, voted to remove Larry McPhail (McPhail) from his position as municipal judge by a majority vote. The Board, on April 6, 1999, voted to reconsider the action taken on April 1, 1999, regarding McPhail. The minutes reflect that all aldermen were present on April 6, 1999. Mayor Russell Ladner (Mayor) vetoed this action. On April 10, 1999, a majority of the Board voted to reinstate McPhail as municipal judge. The Mayor vetoed the motion to reinstate McPhail as municipal judge. Subsequent thereto, the Board attempted to override the Mayor’s veto of the order to reinstate McPhail as municipal judge. The minutes reflect that Alderman Cooley, Alderman Merritt and Alderman Marsh voted “Aye” to override the Mayor’s veto. Alderman Rheams voted “Nay,” and Alderman Beall was shown as absent and not voting. According to the minutes, the motion to override the Mayor’s veto failed since four of the five board members did not vote “Aye.”

¶ 2. McPhail filed his complaint in the Circuit Court of Lamar County, Mississippi, on June 30, 2000, seeking reinstatement of his position as city judge. The trial court conducted a hearing on Lumberton’s motion to dismiss. Lumberton’s motion to dismiss was denied by the trial court on November 5, 2001.

¶ 3. Lumberton filed its motion to reconsider and motion for summary judgment. In considering Lumberton’s motion for summary judgment, the trial court determined that McPhail was a discretionary employee who was properly removed from his position as municipal judge. The circuit court further held that McPhail did not obtain the necessary two-thirds majority vote of the members of the Board in order to override the Mayor’s veto of the Board’s majority vote to reinstate McPhail.

¶ 4. McPhail appeals raising two issues, while Lumberton raises the following issue on appeal:

I. Whether McPhail was time barred from bringing any action against Lumberton in accordance with Miss.Code Ann. § 11-51-75.

DISCUSSION

I. Miss.Code Ann. § 11-51-75

¶ 5. Lumberton argues on appeal that McPhail’s case should have been dismissed on jurisdictional grounds due to McPhail’s failure to timely appeal the adverse decision of the municipal authorities to terminate his services in accordance with Miss.Code Ann. § 11-51-75 (2002). The record does not reflect that McPhail ever addressed Miss.Code Ann. § 11-51-75 on appeal. Miss.Code Ann. § 11-51-75 provides in pertinent part:

Any person aggrieved by a judgment or decision by the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities. The clerk thereof shall transmit the bill of exceptions to the circuit court at once, and the court shall either in term time or in vacation hear and determine the same on the case as presented by the bill of exceptions as an appellate court, and shall affirm or reverse the judgment. If the judgment is reversed, the circuit court shall render such judgment as the board or municipal authorities ought to have rendered, and certify the same to the board of supervisors or municipal authorities. Costs shall be awarded as in other cases. The board of supervisors or municipal authorities may employ counsel to defend such appeals, to be paid out of the county or municipal treasury. Any such appeal may be heard and determined in vacation in the discretion of the court on motion of either party and written notice for ten (10) days to the other party or parties or the attorney of record, and the hearing of same shall be held in the county where the suit is pending unless the judge in his order shall otherwise direct.

¶ 6. The circuit court addressed Miss. Code Ann. § 11-51-75 in its November 5, 2001, final judgment reasoning that:

Lumberton ... argues that Miss.Code Ann. § 11-51-75 provided a statute of limitation of ten days for McPhail to appeal the April 1999 decision to the Board to terminate his appointment. Lumberton argues that McPhail brought this suit on June 30, 2000, and therefore, is barred by the ten day statute of limitation. At oral argument counsel for McPhail agreed with this interpretation of § 11-51-75, however, the issue as framed by McPhail, was the authority of Lumberton to remove a sitting judge, not the decision reached by the Board. This [cjourt agrees with both counsel for Lumberton and McPhail that, had McPhail attempted to challenge the vote of the Board terminating his appointment as municipal court judge, that his action would be barred by § 11-51-75. That, however, was not the issue before this court.

¶ 7. The act of a municipality which leaves a party aggrieved is appealable to the circuit court where all of the issues of the controversy are finally disposed of by order of the municipal authorities. Garrard v. City of Ocean Springs, 672 So.2d 736, 738 (Miss.1996). This matter was finally disposed of on May 4, 1999, when the Board failed to sustain a motion to take up the Mayor’s veto of McPhail’s reinstatement. The lawsuit was filed by McPhail on June 30, 2000, long past the ten day limit authorized by Miss.Code Ann. § 11-51-75.

¶ 8. The ten-day statutory limit in which to appeal a decision rendered by a county board of supervisors is both mandatory and jurisdictional. Newell v. Jones County, 731 So.2d 580, 582 (Miss.1999). Thence, when an appeal of a decision rendered by municipal authorities is not perfected within the statutory time constraint of ten days, no jurisdiction is conferred upon the appellate court, i.e., the circuit court. Id. See also Moore v. Sanders, 569 So.2d 1148, 1150 (Miss.1990). McPhail was well beyond the ten-day limit to perfect his appeal.

¶ 9. The circuit court excused McPhail’s failure to timely appeal the decision of the Board finding that McPhail was not attempting to challenge the Board’s vote. Rather, the circuit court determined that McPhail was challenging the Board’s authority to remove a sitting judge. We find that the circuit court erred in not dismissing McPhail’s claim as untimely in accordance with Miss.Code Ann. § 11-51-75. McPhail’s complaint clearly seeks to have the circuit court “declare the [Board’s] vote [to dismiss McPhail as judge] null and void” and “declare the Mayor’s veto [of the vote to reinstate McPhail] null and void.”

¶ 10. We find that Miss.Code Ann § 11-51-75 did operate as a jurisdictional bar as McPhail did not appeal the Board’s decision within a timely manner to the circuit court. The circuit court should have dismissed McPhail’s suit. Therefore, as this issue is dispositive of McPhail’s claim, the issues raised in McPhail’s two assignments of error on the merits of the case are rendered moot.

CONCLUSION

¶ 11. While McPhail’s dismissal as municipal judge should stand, we find that the trial court erred in its reasoning. We determine that the trial court erred for failure to dismiss McPhail’s claim as being untimely filed in accordance with Miss. Code Ann. § 11-51-75. Miss.Code Ann. § 11-51-75 clearly operated in this case as a jurisdictional bar to McPhail’s claim. McPhail’s claim should have been dismissed by the trial court as not being properly before the court. Accordingly, the circuit court’s judgment is modified to dismiss McPhail’s suit for lack of jurisdiction under Miss.Code Ann. § 11-51-75 and affirmed as so modified.

¶ 12. AFFIRMED AS MODIFIED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. COBB, J., CONCURS IN RESULT ONLY.

      . April 1, 1999 Meeting:
      Alderman Rheams voted "Aye.”
      Alderman Merritt abstained.
      Alderman Marsh voted “Nay.”
      Alderman Beall voted "Aye.”
      Alderman Cooley was absent and not voting.

      . April 10, 1999 Meeting:
      Alderman Rheams abstained.
      Alderman Merritt voted "Aye.”
      Alderman Marsh voted "Aye.”
      Alderman Beall voted "Aye.”
      Alderman Cooley was absent and not voting.