author: EASLEY, J.,

text:
    FIDDLE, INC. v. Stanley A. SHANNON, Lauderdale County Tax Collector, City of Meridian, A Municipal Corporation, and Lauderdale County Board of Supervisors, Lauderdale County, Mississippi.
    No. 2001-CA-01953-SCT.
    Supreme Court of Mississippi.
    Jan. 2, 2003.

      Walter T. Rogers, Meridian, attorney for appellant.
    J. Richard Barry, Michael Wayne Stra-han, Meridian, attorneys for appellees.
    Before SMITH, P.J., EASLEY and GRAVES, JJ.
   EASLEY, J.,

for the Court.

PROCEDURAL HISTORY

¶ 1. Fiddle, Inc. (Fiddle), filed suit in the Circuit Court of Lauderdale County, Mississippi on September 7, 2000, against Stanley Shannon (Shannon) in his official capacity as Lauderdale County Tax Collector. The complaint was later amended to include Lauderdale County, Mississippi (Lauderdale) and the City of Meridian (Meridian), a municipal corporation, as additional defendants. Both the original and the amended complaint were timely answered by the defendants, collectively known as “Tax Collector.”

¶ 2. The Tax Collector filed its motion for summary judgment on the grounds that Fiddle’s complaint was not timely filed. Fiddle responded to the motion, and the trial court subsequently entered an order denying summary judgment. The Tax Collector filed a motion to dismiss for want of jurisdiction. The motion was also denied.

¶ 3. This matter was tried to a jury which returned a verdict in favor of the Tax Collector. Following entry of the judgment based on the verdict, Fiddle filed its motion for a judgment notwithstanding the verdict or, in the alternative, motion for new trial. The Tax Collector filed its motion to assess costs against Fiddle. The trial court denied both motions. Fiddle filed its notice of appeal, and the Tax Collector filed a notice of cross-appeal.

FACTS

¶ 4. On August 25, 1997, the Tax Collector conducted a sale of real property for unpaid taxes and assessments on the third floor of the Lauderdale County Courthouse. Anita Jo Ross (Anita) and Bill Ross (Bill), sole shareholders of Fiddle, appeared at the tax sale. Amy Merchant (Merchant) conducted the tax sale in her capacity as deputy tax collector. After the tax sale was concluded, Merchant tallied up the amount each bidder’s number had purchased according to the list from the tax sale.

¶ 5. Fiddle had been engaged in the business of buying real estate at tax sales since 1989. Fiddle operated with respect to tax sales in the following counties: Lauderdale, Noxubee and Kemper. Bill testified that the purpose of the corporation is to buy real estate at tax sales as an investment. Once a delinquent property owner redeems the property within the two years allowed by statute, Fiddle receives its money back with interest. Anita testified that she had attended tax sales since 1990 and was familiar with the procedure. .

¶ 6. Merchant testified that each bidder was assigned a number. As each parcel’s number and a brief description were called out, the bidders would bid on the parcel. A computer printout of what was printed in the newspaper was used to conduct the tax sale. The bidder’s names were recorded on the computer printout.

¶ 7. Anita testified that she went to the tax collector’s office three days after the tax sale and wrote a check for $39,911.31 to cover the parcels Fiddle purchased at the tax sale. Anita was given the opportunity to review the tape of the parcels she bought added to determine the total. In return, the tax collector’s office handed Anita 113 tax receipts. Anita testified that the 113 tax receipts contained receipt number 27231 assessed to a Willie Lee Gordon (Gordon), showing $10,245.55 received from Fiddle. Of the total $39,911.31 paid, the $10,245.55 represented the amount paid for the one parcel in question. The record reflects that Anita contended that she first discovered her alleged error in July of 2000. Suit was filed on September 7, 2000. On cross-examination, Anita agreed that had Gordon come forward to pay off the taxes and special assessment plus interest before August 1999, Fiddle would not claim a refund from the Tax Collector.

¶ 8. The jury returned its verdict for the Tax Collector, and judgment was entered in accordance with that verdict. The trial court denied Fiddle’s motion for judgment notwithstanding the verdict, or in the alternative, motion for a new trial. Fiddle now appeals to this Court raising the following issues:

I.Whether the trial court erred in refusing to grant Fiddle’s jury instruction P-1 and P-5 and granting instruction C-7.
II. Whether the trial court erred in denying Fiddle’s motion for a judgment notwithstanding the verdict, or, in the alternative, for a new trial.

The Tax Collector cross-appeals raising the following issues:

III. Whether the trial court erred in denying the tax collector’s motion for summary judgment.
IV. Whether the trial court erred in denying the tax collector’s motion to dismiss for want of jurisdiction.
V. Whether the trial court erred in denying the tax collector’s motion to assess costs.

DISCUSSION

I. Jury Instructions

¶ 9. In Fred’s Stores of Miss., Inc. v. M & H Drugs, Inc., 725 So.2d 902, 917 (Miss.1098), this Court held that:

This Court has said, “[o]n appeal, we do not review jury instructions in isolation; rather, they .are read as a whole to determine if the jury was properly instructed.” Wallace v. Thornton, 672 So.2d 724, 729 (Miss.l1996)(citing Peoples Bank and Trust Co. v. Cermack, 658 So.2d 1352, 1356 (Miss.1995)). “Therefore, defects, in specific instructions do not require reversal ‘where all instructions taken as a whole fairly — although not perfectly- — -announce the applicable primary rules of law.’ ” Wallace, 672 So.2d at 729 (quoting Burton v. Barnett, 615 So.2d 580, 583 (Miss.1993)).

Where other instructions have both fairly and fully informed the jury, reversal is not warranted on appeal for an error in an instruction. Coleman v. State, 804 So.2d 1032, 1038 (Miss.2002).

¶ 10. Fiddle argues that the trial court erred by refusing to grant jury instructions P-1 and P-5 and by granting C-7. Those instructions are as follows:

Instruction No. P-1
The Court instructs the Jury that the Plaintiff has paid unto the Defendants, as a result of the 1997 Tax Sale, taxes and special assessments in the sum of $10,245.55 for Parcel No. 076134270700315 which were assessed to Willie Lee Gordon
If you believe, by a preponderance of the evidence, that the Defendant collected or the Plaintiff paid these taxes and special assessments by error or mistake, then your verdict shall be for the Plaintiff.
Instruction P-5
The Court instructs the Jury that the Plaintiff has paid as a result of the 1997 Tax Sale, taxes and special assessments in the sum of $10,245.55 for Parcel No. 076134270700315 which were assessed to Willie Lee Gordon.
If you believe, by a preponderance of the evidence, that the Plaintiff, Fiddle, Inc., paid these taxes and special assessments by error or mistake, then your verdict shall be for the Plaintiff.
Instruction No. C-7
The Court instructs the Jury that Fiddle, Inc., a Mississippi for profit corporation, the Plaintiff in this suit, claims that it is entitled to a refund of $10,245.55 for taxes which it claims it mistakenly and erroneously paid. Because Fiddle is the Plaintiff in this suit Fiddle is required to prove to you by a preponderance of the evidence that the Defendants, or one of them, made a mistake and because of this mistake Fiddle mistakenly or erroneously paid for taxes. Preponderance of the evidence means the greater weight of the creditable evidence. You the jury cannot just speculate or assume that the Defendants, or one of them, made a mistake but rather the Plaintiff is required to prove to you the jury, by a preponderance of the evidence, that the Defendants, or one of them, did in fact make a mistake. The Court instructs the jury that the Defendants are not required to prove to you that they did not make a mistake. Unless you find from a preponderance of the evidence that the Defendants, or one of them, in fact made the mistake, you cannot return a verdict for the Plaintiff but rather you must return a verdict in favor of the Defendants.

Fiddle was also granted Instruction No. C-6 which states:

The Court instructs the Jury that the Plaintiff has paid as a results of the 1997 Tax Sale, taxes and assessments in the sum of $10,245.55 for Parcel No. 076134270700315 which were assessed to Willie Lee Gordon.
If you believe, by a preponderance of the evidence, that Stanley A. Shannon, Tax Collector, or his deputy, collected from the Plaintiff these taxes and special assessments by error or mistakes, then your verdict shall be for the Plaintiff.

¶ 11. Fiddle contends that “the refusal of the trial court” to grant jury instructions P-1 and P-5 “denied Fiddle the opportunity of presenting to the jury for their consideration the issue of whether it was entitled to a refund of erroneously paid ... ad valorem taxes.” Fiddle further alleges that “there was sufficient facts in the record for the jury to find that Fiddle mistakenly paid the total amount requested by the deputy tax collector of $39,911.13 for 113 parcels of property without reviewing each of the tax receipts presented, and, also, not discovering the inclusion of the parcel in Fiddle’s total receipts.” Fiddle relies on the. following Miss.Code Ann. §§ 21-33-79 & 27-73-7 to support its contention.

¶ 12. Miss.Code Ann. § 21-33-79 (2001) provides:

The tax collectors of all municipalities are hereby authorized to refund erroneously-paid privilege or ad valorem taxes paid such municipalities. An applicant for such refunds shall submit application to the tax collector of any such municipality, and if such claim be found by the tax collector to be due, and is .allowed, then the tax collector of said municipality shall issue a warrant to the claimant and deduct the proper amounts from his next settlement.

¶ 13. Miss.Code Ann. § 27-73W (2000) provides:

The tax collector is authorized and empowered to refund any individual, firm or corporation any ad valorem, privilege or excise tax which has been paid or collected through error or otherwise when such person, individual, firm or corporation has paid any such tax in excess of the sum properly due whether paid'under protest or not. Taxes erroneously paid- within the meaning of this section-shall include, but not be limited to, double payment, or overpayment, or payment on state, United States, vacant and exempt land, and the purchase paid for the redemption of lands erroneously sold for taxes.
All refunds under this provision shall be made out of any monies collected by the tax collector from the same source of revenue, or if such source of revenue no longer exists the refund shall come from the general fund collections. The tax collector shall issue a warrant to the claimant and deduct the proper amounts from his next settlement.

¶ 14. Fiddle argues that the sole issue for the jury’s consideration should have been whether it mistakenly paid the total tax amount on 113 parcels. Fiddle contends that it should not have to prove that the,Tax Collector mistakenly or erroneously assessed the amount of the tax owed in order to seek a refund. Fiddle argues that it is not necessary to prove by a preponderance of the evidence that the Tax-Collector made a mistake or error in collecting the tax from Fiddle in order for Fiddle to receive a refund. The jury instructions offered by Fiddle and rejected by the trial court seek to collect a refund only upon Fiddle’s contention of a unilateral mistake. We find that the jury could not have possibly found that Fiddle was entitled' to a refund without determining that the Tax Collector made a mistake or error in collecting the tax.

¶ 15. The tax and the special assessment was clearly owed and unpaid by Gordon when Fiddle took over the tax on the parcel. In order for Fiddle to prevail, obviously Fiddle is required to establish that the Tax Collector some how mistakenly assigned Fiddle as the purchaser of the subject.parcel from the tax sale. The jury determined that the evidence did not support a finding that the Tax Collector owed Fiddle a refund. Fiddle alleges that it never reviewed the stack of tax receipts from the tax sale on August 25, 1997, in order to discover the subject .parcel until some one and a half years after the tax sale when no one came forward to redeem the parcel. Fiddle purchased the subject parcel for - $10,245.55 and in return the clerk provided Fiddle with a tax receipt for the parcel in question.

¶ 16. We find that this assignment of error is without merit.

II. Judgment Notwithstanding the Verdict or New Trial

¶ 17. Fiddle filed its motion for judgment notwithstanding the verdict (J.N.O.V.) or, in the alternative, for. a new trial which was denied by the trial court. On August 25, 1997, the Tax Collector conducted a tax sale for unpaid 1996 ad valorem taxes due the City of Meridian and Lauderdale County, Mississippi. At this sale, approximately 1500 to 1600 parcels were sold. The tax sale began at 8:30 a.m. on August 25, 1997, and lasted until 4:30 p.m. or 5:00 p.m. the same day. Serious bidders were assigned a number and sat in chronological order. The sale was conducted by Merchant in her capacity as deputy clerk. She read each parcel by name, the receipt number, account number, the special assessment, and a brief description. The parcel was offered to the first numbered bidder, and if not purchased, the offer is passed on the second numbered bidder and so on until the parcel is purchased. In the event it was not purchased, it was struck off to the State of Mississippi.

¶ 18. Merchant conducted the sale from a computer printout of what' was printed in the newspaper advertising the sale of the parcels for unpaid taxes. She recorded the successful bidders’ assigned number on the computer printout. At the conclusion of the sale, she determined the successful bidder by comparing the number placed on the computer printout with the assigned number of the bidders. Then she separated each bidder by name, totaled the bidders’ purchase, and pulled the receipt on each of the parcels. The successful bidder was then notified and presented the tax receipts for all the parcels purchased and a total amount owed.

¶ 19. The particular parcel of property involved herein was a parcel assessed to Gordon that had a net ad valorem tax of $30.48, but also carried a special assessment of $9,542.00, together with interest, which arose from the demolition of a structure and the cost assessed to the property. The total amount was $10,245.55. This parcel appeared in Fiddle’s total stack of receipts which numbered 113 parcels and paid by Fiddle on August 28, 1997, some three (3) days later.

¶ 20. Fiddle had a policy of not bidding on sixteenth section property, demolitions or special assessments, because special assessments did not add any value to the property. Anita testified that she did not bid on the subject property and would not bid $10,000 on a parcel whether it had a special assessment or not. She stated that the deputy clerk must have written down Fiddle’s name or bidder’s number by accident thereby causing the parcel in question to end up in Fiddle’s tax receipts.

¶ 21. Shannon, also, testified that he knew of no one who had previously paid over $10,000 for a parcel of property that had $30.00 worth of taxes on it. Neither Shannon nor Merchant could remember this particular parcel, nor did the Tax Collector have any written records showing what each bidder purchased.

¶ 22. In General Tire & Rubber Co. v. Darnell, 221 So.2d 104, 105 (Miss.1969), this Court stated that the established rule when the Court considers whether a jury verdict should be disturbed as a matter of law, the Court should consider the evidence in the light most favorable to the non-movant, disregarding any evidence on the part of the movant in conflict with that favorable to the non-movant, and determine if the evidence and reasonable inferences to be drawn therefrom would support a verdict for the movant. See Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975).

¶ 23. This Court in City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983), stated as follows:

On a motion for judgment notwithstanding the verdict, the trial court must consider all of the evidence — not just that evidence which supports the non-mov-ant’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable men could not have arrived at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgement might reach different conclusions, the motion should be denied and the jury’s verdict allowed to stand;

¶ 24. When a trial judge denies a motion for JNOY, this Court examines all of the evidence, not just evidence supporting the non-movant’s case in the most favorable light. C & C Trucking Co. v. Smith, 612 So.2d 1092, 1098 (Miss.1992). In C & C Trucking Co., this Court stated that:

It is only when a directed verdict at the close of the plaintiffs case and against at the close of the defendant’s case, would have been proper that a judgment notwithstanding the verdict is proper. Such is not the standard where the trial court is required to use its discretion in granting a motion for a new trial. The variance in proof needed to support these motions is easily explained when one recognizes that a JNOV terminates the case, whereas a new trial simply give both parties the opportunity to relitigate the controversy.

Id. at 1098-99 (citing Stubblefield v. Jesco, Inc., 464 So.2d 47, 55 (Miss.1984)).

¶ 25. The motion for a new trial has only been employed in “rare cases when there would be injustice either in allowing the verdict to stand or in granting a j.mo.v.” C & C Trucking Co., 612 So.2d at 1099. M.R.C.P. 59 authorizes a trial judge to set aside a jury verdict and to grant a new trial as justice requires. A new trial may be granted “when the verdict is against the overwhelming weight of the evidence, or when the jury has been confused by faulty jury instructions, or when the jury has departed from its oath and its verdict is a result from bias, passion, and prejudice.” Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 132 (Miss.1989); Griffin v. Fletcher, 362 So.2d 594, 596 (Miss.1978); Clayton v. Thompson, 475 So.2d 439, 443 (Miss.1985). The trial judge’s denial of a request for a new trial will only be reversed by the Court when such denial amounts to an abuse of the trial judge’s discretion. Bobby Kitchens, Inc., 560 So.2d at 132; Maxwell v. Ill. Cent. Gulf R.R., 513 So.2d 901, 908 (Miss.1987). This Court’s review of the trial judge’s discretion and authority is “limited to an inquiry whether the ruling of the trial judge may be fairly characterized as an abuse of discretion.” Id. See Dorris v. Carr, 330 So.2d 872, 873-74 (Miss.1976). This Court gives substantial weight, deference, and respect to the decision of the trial judge. C. & C. Trucking Co., 612 So.2d at 1099.

¶ 26. We find that the decision of the trial court to deny Fiddle’s motion, for J.N.O.Y. or, in the alternative, a new trial should not be reversed. This assignment of error is without merit.

CROSS-APPEAL

III. Statute of Limitations

¶ 27. The Tax Collector argues on cross-appeal that the trial court erred in denying its motion for summary judgment alleging that Fiddle’s claim was barred by the statute of limitations. The tax sale involving the subject property was held on August 25, 1997. Three days later, on August 28, 1997, Anita paid by check the total amount due for 113 parcels. Fiddle’s check was presented to the bank by the Tax Collector for payment, and the check was honored on either September 9 or September 11, 1997. Fiddle requested the Tax Collector provide a refund by letter dated August 17, 2000. Thereafter, Fiddle having received no response filed its action on September 7, 2000. The Tax Collector filed its motion for summary judgment which was subsequently denied by the trial court.

¶ 28. The Tax Collector contends that payment of the taxes occurred when Fiddle presented its check for payment on August 28, 1997, and therefore, it was entitled to summary judgment as Fiddle’s claim was time barred when filed on September 7, 2000. The trial court reasoned in its opinion as follows:

As stated earlier, the sole question before the [c]ourt is whether the complaint in this cause was filed timely. The applicable state of limitations, § 15-1^49, MCA 1972, calls for an action for which there is not other applicable limitations period to be commenced within three years after said cause of action has accrued. Thus, the issue becomes, when did the cause of action for refund of the alleged erroneously paid taxes accrue?
The [defendant asserts that the cause of action accrued on the date of the tax sale, which occurred on August 25, 1997. The [pjlantiff asserts that the cause of action accrued on the date the check was paid by the bank, which occurred on either September 9, 1997 or September 11, 1997.
Shedding light on this issue of “accrual” is an additional statute § 15-1-51, MCA 1972, which provides some guidance of legislative intent. Section 15 — 1— 51 states in pertinent part:
The statutes of limitations shall run in favor of the state, the counties, and municipal corporations beginning at the time when the plaintiff first had the right to demand payment of the officer or board authorized to allow or disallow the claim sued upon (emphasis added).
Therefore, the statute of limitations contained in § 15-1-49 began to run when the [pjlaintiff first had the right to demand a refund of the alleged erroneously paid taxes.
The right to demand a refund for payment of erroneously paid taxes occurs when the taxes are paid. Thus, should the [pjlaintiff pay with cash, the right to demand a refund would occur on the date of payment. However, when taxes are paid by check, a further issue varies of when payment actually occurs. Does is occur when the check is signed, dated, delivered or accepted? Or does it occur upon presentation to the bank for payment and payment by the bank?
In Tonnar v. Wade, 153 Miss. 722, 121 So. 156 (1929), the Supreme Court addressed the question of whether a defendant in an election suit was a qualified elector. To be a qualified elector, taxes were required to be paid on or before February 1 of the election year. The taxes had been paid by check on February 1 and a receipt issued by the tax collector. The check did not clear the bank on which it was drawn until February 9. The Court found that, nevertheless, the defendant was a duly qualified elector, saying:
The general rule is that a check becomes absolute payment of a debt when the check is paid on presentation, and, on such payment, the debt is deemed to have been discharged from the date the check was given.... By the giving of the check, the tax obligation and the tax lien are both conditionally discharged, the condition being the payment of the check, and, when the check is paid, a discharge of both the tax obligation and the tax lien relates back to the date of the check. 153 Miss. at 732, 121 So. at 158.

In Moritz v. Nicholson, 141 Miss. 531, 106 So. 762 (1926), the [p]laintiff paid taxes on property to the tax collector by check. However, the tax collector did not present the check for payment to the bank until after the bank failed. Id. The Court held that the taxes were not paid by the [pjlaintiff by the mere acceptance of the check by the tax collector a payment. Id. The Court stated that the acceptance of the check was at most a conditional payment and that payment of taxes does not occur until the check is paid. Id., see also Sunflower Compress v. Clark, 172 Miss. 256, 153 So. 823 (Miss.1934).

Therefore, this Court is of the opinion that within the meaning of § 15-1-51, MCA 1972, the taxes were not paid by the [p]laintiff until either September 9, 1997, or September 11, 1997, the date the bank paid the check and debited the [pllaintiffs account. Further, the Court is of the opinion that the [pllaintiffs cause of action did not accrue within the meaning of § 15-1-49, MCA 1972, until September 9, 1997 or September 11, 1997, the date he first had a right to demand a refund. Thus, the filing of the ([clomplaint on September 7, 2000, was timely and the cause of action is not barred by the limitations period found in § 15-1-49, MCA 1972).

¶ 29. As Fiddle had no right to demand repayment of any monies paid as required by Miss.Code Ann. § 15-1-51 (1995) until either September 9 or September 11, 1997, when the bank paid the check and debited Fiddle’s account, we find that Fiddle’s action was brought on a timely basis and not barred by the statute of limitations. This issue is without merit.

IV. Want of Jurisdiction

¶ 30. The Tax Collector argues on cross-appeal that the trial court erred in denying its motion to dismiss Fiddle’s claim for want of jurisdiction. The trial court entered its order denying the motion to dismiss on June 12, 2001. Subsequently, the Tax Collector sought permission from this Court to file an interlocutory appeal and filed a brief in support thereof. This Court denied the Tax Collector’s petition for interlocutory appeal on this issue. Trial was held in this matter before the Lauderdale County Circuit Court with the jury returning its verdict in favor of the Tax Collector.

¶31. The Tax Collector argues that Fiddle did not follow the proper procedure for bringing its claim before the circuit court. Fiddle wrote Shannon requesting its letter dated August 17, 2000, be treated as an application for a refund of the taxes Fiddle alleged to have erroneously paid. The Tax Collector contends that Fiddle’s only avenue to circuit court was to appeal the denial of the request for a refund. Fiddle, however, filed suit in circuit court against Shannon as the Lauderdale County Tax Collector.

¶ 32. The Tax Collector relies on Miss. Code Ann. § 21-33-83 (2001) and Smith v. University of Miss., 797 So.2d 956 (Miss.2001). Miss.Code Ann. § 21-33-83 provides:

Any person, firm, or corporation aggrieved by the action of the governing authorities of any municipality under Sections 21-33-1 through 21-33-85 shall have the right of appeal to the circuit court of the county.

However, the statutory language contained in Miss.Code Ann. § 21-33-79 and 21-33-83 does not exclude a taxpayer’s right to file suit. See Chassaniol v. City of Greenwood, 166 Miss. 770, 144 So. 548 (1932).

' ¶ 33. Furthermore, Smith, as relied upon by the Tax Collector in the case sub judice, is not applicable to the facts of this case. Smith differs from the facts at hand as it involved a former employee of a state university seeking reinstatement of his position after being terminated for excessive absenteeism and failure to timely perform his assigned tasks. Smith, 797 So.2d at 958. Smith appealed his termination decision to the university’s Personnel Action Review Board (PARB) for a full administrative hearing. Id. PARB is a quasi-judicial administrative panel which has authority to review and overturn employment decisions rendered by the university. Id. PARB denied Smith’s appeal and affirmed his termination. Id. Smith did not appeal the termination decision to the circuit court by writ of certiorari pursuant to Miss.Code Ann. §§ 11-51-93 & -95. Id. The university moved to dismiss Smith since he did not appeal. Id.

¶ 34. Smith then filed a complaint in the Chancery Court of Lafayette County seeking reinstatement to his position, and in the alternative, money. Id. at 957. The matter was transferred to the circuit court where the court granted the university’s motion to dismiss for lack of jurisdiction or, alternatively, for summary judgment based on res judicata. Id. This Court upheld the decision of the circuit court finding that “Smith’s exclusive remedy for review of the PARB’s decision” was to appeal the decision to the circuit court by writ of certiorari. Id. at 965. We find that the Tax Collector’s reliance on Smith is misplaced.

¶ 35. This Court finds that this issue to be without merit.

V. Rule 68

¶ 36. The Tax Collector filed its motion to assess costs against Fiddle pursuant to M.R.C.P. 68. The trial court denied the motion by its order of November 26, 2001. The Tax Collector argues on cross-appeal that the trial court erred in denying its motion. M.R.C.P. 68 provides:

At any time more than fifteen days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within ten days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the court shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the cost incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict, order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time, not less than ten days, prior to the commencement of hearing to determine the amount or extent of liability.

(emphasis added).

¶ 37. According to the Tax Collector’s motion to assess costs, an offer of judgment dated July 11, 2001, was submitted to Fiddle in the amount of $5,000.00. Fiddle did not accept the offer to settle its claim. The case came to trial, with the jury returning a verdict in favor of the Tax Collector, determining that Fiddle was not entitled to receive a refund.

¶ 38. The comments to M.R.C.P. 68 provide that “[r]ule 68 is [designed] to encourage settlements, avoid protracted litigation, and protect the party who is willing to settle from the burden of costs that subsequently come.” The trial court did not provide in its order of November 26, 2001, any rationale as to why the motion should be denied. Furthermore, the Tax Collector did not attach a copy of the offer of judgment as an exhibit to its motion, nor was the actual offer of judgment made part of the record on appeal. The record does not reflect that a response was ever filed by Fiddle to the Tax Collector’s motion.

¶ 39. While looking solely at the motion to assess costs and the language of M.R.C.P. 68, the trial court did not err in denying the motion since there was no judgment obtained by Fiddle to trigger the Rule 68 cost-shifting procedure. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981) (Fed. R.Civ.P. 68 cannot be used by prevailing defendant-offeror since the plaintiff-offeree did not obtain a judgment). This issue does not raise any reversible error.

CONCLUSION

¶ 40. For all the foregoing reasons, the judgment of the trial court is affirmed on direct appeal and cross-appeal.

¶ 41. AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL.

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

      . The complaint was later amended to also include the City of Meridian and Lauderdale County, Mississippi, as defendants.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Richard Orlando EDWARDS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-CP-00327-COA.
    Court of Appeals of Mississippi.
    July 16, 2002.
    Rehearing Denied Sept. 17, 2002.
    Certiorari Denied Jan. 2, 2003.

      Richard Orlando Edwards, Pro Se, attorney for appellant.
    Office of the Attorney General by: Deirdre McCrory, attorney for appellee.
    Before McMILLIN, C.J., MYERS, and CHANDLER, JJ.
   MYERS, J.,

for the court.

¶ 1. This is an appeal of the dismissal of Richard Orlando Edwards’ motion for post-conviction relief.

FACTS

¶2. Richard Orlando Edwards pled guilty to transfer of a controlled substance in the Circuit Court of the First Judicial District of Harrison County before the Honorable John H. Whitfield. He was sentenced to a term of seventeen years, suspended, with five years supervised probation. Two months later, Edwards was found to have violated his probation, which was subsequently revoked. Edwards filed his motion for post-conviction relief in February 1999. The circuit court held that he did not meet the procedural requirements and denied his motion.

ANALYSIS

¶ 3. Edwards asserts that he was wrongly incarcerated when his supervised probation was revoked without being tried and convicted of the traffic violations which were the cause of the revocation. Edwards was charged with reckless driving, driving with a suspended license, failure to yield to blue lights and siren and resisting arrest. These are exactly the offenses forbidden by the conditions of the post release supervision order.

¶ 4. A conviction of these traffic violations was not necessary to revoke Edwards’ probation. Younger v. State, 749 So.2d 219, 222 (¶ 12) (Miss.Ct.App.1999). It need only be shown that the defendant “more likely than not” violated the terms of the supervised release agreement. Id., quoting Berdin v. State, 648 So.2d 73, 78 (Miss.1994). We find no error with the lower court’s ruling in this matter.

¶ 5. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HARRISON COUNTY DISMISSING MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF APPEAL ARE ASSESSED TO HARRISON COUNTY.

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


author: BRIDGES, J.,

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant, v. Patricia ALLEN, Appellee.
    No. 2001-SA-00275-COA.
    Court of Appeals of Mississippi.
    July 23, 2002.
    Rehearing Denied Oct. 22, 2002.
    Certiorari Denied Jan. 2, 2003.

      Mary Margaret Bowers, Jackson, attorney for appellant.
    Willie T. Abston, Jackson, attorney for appellee.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   BRIDGES, J.,

for the court.

PROCEDURAL HISTORY

¶ 1. The Public Employees’ Retirement System of Mississippi (PERS) appeals a ruling of the Circuit Court of Hinds County which overturned an administrative decision denying disability benefits to Ms. Patricia Allen, a Jackson Public School System employee. Allen applied to the PERS Medical Review Board for disability benefits based on panic disorders and depression. Her application was initially denied due to the Board’s determination that she was not permanently disabled. Allen then appealed to the PERS Board of Trustees Disability Appeals Committee which affirmed the denial of the Medical Review Board for benefits based on insufficient medical evidence.

¶ 2. Allen appealed the Committee’s ruling to the Circuit Court of Hinds County which reversed the decision of the Committee, finding that the Committee arbitrarily and capriciously ignored substantial evidence in support of disability. We affirm the circuit court’s judgment.

STATEMENT OF THE FACTS

¶ 3. Patricia Allen began teaching with the Jackson Public School System in 1973, giving her seventeen and three-quarter years in the retirement system. Allen bases her disability on several illnesses including atypical colitis, bursitis, depression, panic disorder and carpal tunnel syndrome. She has supporting documentation from her doctors: Dr. Greg Terral, Dr. David M. Sullivan, Dr. Charles Coleman and Dr. F.J. Eicke. The Social Security Administration has found that Allen is disabled and has awarded her benefits.

¶ 4. The treating physicians of a public employee with regard to an alleged disability must submit valid documentation attached to the employee’s petition for disability benefits. The specific document, “Form 7,” is a statement of the physician listing the ailments associated with the employee and the level of disability that has resulted therefrom. As stated, Allen consulted four different doctors concerning her different ailments. Dr. Terral, an orthopedic surgeon, treated Allen for carpal tunnel syndrome. He indicated a good prognosis for Allen and released her from his care.- He stated that her disability was not permanent. Dr. Sullivan, who specializes in internal medicine, treats Allen for a variety of illnesses, including severe depression and panic disorder. On the Form 7, he did not state specifically whether or not her disabilities are permanent, but in a letter dated September 27, 1996, stated that Allen “is currently applying for disability and will be unable to return to her job.” Dr. Sullivan referred Allen to Dr. Coleman for additional treatment. Dr. Coleman, a psychiatrist, is the treating physician for Allen’s mental disorders including panic disorder with agoraphobia and major depression. He classified Allen as permanently disabled. Dr. Coleman referred Ms. Allen to Dr. Eicke, a licensed psychologist, for further evaluation and he found that Allen “would have difficulty returning to her prior work because of the demands, and even to performing very routine repetitive tasks.”

¶ 5. Ms. Allen testified that her various illnesses cause her to take either seventeen or eighteen pills a day. She testified that her “nervousness” lasts all day, causing her pain and discomfort. She stated that she enjoys teaching but that teaching in an inner city public school was like teaching in a “war-zone.” This unpleasant environment caused her to be upset and to experience panic attacks. She stated she was afraid for her students to see her in an “emotional fit.”

’ 'LEGAL ANALYSIS

¶ 6. Patricia Allen started her quest for benefits with the PERS Medical Review Board. The Board reviewed her petition and supporting documentation and made a decision to deny benefits. The Board’s summary sheet is signed by Drs. Rahul Vohra and Michael.Winkelmann.

¶ 7. She then appealed to the Committee who conducted a de novo review of the record. The Committee had a hearing on April 28, 1997. Members of the Committee heard testimony about Allen’s PERS membership file, medical file, staff summary and Medical Review Board’s summary. Additionally, Allen testified and spoke of why she should be granted benefits. This Committee affirmed the denial of benefits. Dr. Winkelmann was also a member of the Committee.

¶ 8. Allen filed her notice of appeal with the Hinds County Circuit Court on September 25,1997. Rule 5.06 of the Uniform Rules of Circuit and County Court Practice provides that “[b]riefs filed in an appeal on the record must conform to the practice in the Supreme Court.... The failure to timely file a brief will be the same as in the Supreme Court.” URCCC 5.06. Rule 31(b) of the Mississippi Rules of Appellate Procedure provides that “the appellant shall serve and file the appellant’s brief within 40 days after the date on which the record is filed.” M.R.A.P. 31(b). On March 13,1998, PERS filed a motion to dismiss for failure to. prosecute the case by neglecting to file a brief in the Hinds County Circuit Court. Allen filed her brief with the court on October 21, 1998, some ten months late. On October 23, 1998, Circuit Judge Graves considered a motion to dismiss by PERS and also considered an ore tenus motion by PERS to strike the brief submitted on .behalf of Allen. Judge Graves found that dismissal of Allen’s appeal would be a “draconian sanction” but did however find that the brief, submitted two days prior to the hearing and without leave of court to file an out of time brief, should be stricken from the record.

¶ 9. Judge Graves issued his opinion and order on January 12, 2001, reversing the two previous denials of benefits. He found that the decision of PERS was arbitrary and capricious and that there was sufficient and substantial medical evidence to support an award of benefits-. He found that three of Allen’s treating physicians found her to be disabled.

¶ 10. Judicial review of an administrative agency’s findings and decisions is limited. An agency’s conclusions must remain undisturbed unless the agency’s order: (1) is not supported by substantial evidence; (2) is arbitrary and capricious; (3) is beyond the scopé or power granted to the agency; or (4) violates one’s constitutional rights. URCCC 5.03; PERS v. Marquez, 774 So.2d 421, 425 (¶ 11) (Miss.2000); Byrd v. PERS, 774 So.2d 434, 437(¶ 11) (Miss.2000). In reviewing the decision of a circuit court concerning an agency action, this Court ap plies the same standard of review that court is bound to follow. Marquez, 774 So.2d at 429 (¶ 32); Mississippi Comm’n of Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993). Neither this Court nor the circuit court may substitute its own judgment for that of the agency which rendered the decision nor reweigh the facts of the case. See Marquez, 774 So.2d at 425(¶ 11); Byrd, 774 So.2d at 437(¶ 11). Therefore, unless the agency’s order was not supported by substantial evidence, or-was arbitrary or capricious, the reviewing court should not disturb its conclusions. “If an administrative agency’s decision is not based on substantial evidence, it necessarily follows that the decision is arbitrary and capricious.” Marquez, 774 So.2d at 430(¶ 35). Substantial evidence has been defined as “something more than a ‘mere scintilla’ or suspicion.’ Id. at 425(¶ 13). It has also “been defined as ‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion.’ ” Id.

¶ 11. After reviewing the Medical Board and Committee’s decisions and the medical records, we cannot conclude that there is substantial evidence to support the decision to deny disability benefits and the findings to the contrary are more than conclusory. “If‘an agency does not disclose the reason upon which its decision is based, the. courts will be usurped of their power to review over questions of law.” McGowan v. Miss. State Oil & Gas Bd., 604 So.2d 312, 324 (Miss.1992). “It is a logical and legal prerequisite to intelligent judicial review in these cases that the Board favor us with more than mere con-clusory findings.” Id.

¶ 12. In this case, we must agree with the circuit court judge that the decision of the agency was arbitrary and capricious. The doctors treating Allen for the medical problem for which she sought disability agreed that she was disabled. Dr. Charles Coleman, her primary treating physician, stated that Allen was disabled and this conclusion was not contradicted by any other doctor. While the agency is not bound by the determination of the Social Security Administration that a person is disabled, Marquez, 774 So.2d at 430(¶ 37), this is further evidence in support of the claim of disability. We find nothing in either determination from PERS that would support the agency’s conclusion.

¶ 13. Having said that, this Court cannot -ignore further- error in the handling of the disability claim by this state-agency. Allowing Dr. Winkelmann, an original member of the Medical Review Board who denied Allen’s claim, to sit on her appeal of the Board’s denial is blatant reversible error. See Public Employees’ Retirement Sys. v. Dishmon, 797 So.2d 888, 890(¶ 2) (Miss.2002) (a factually similar case reversed for the same Dr. Winkelmann’s sitting on both the Board and Commission); Dean v. Public Employees’ Retirement Sys., 797 So.2d 830, 836(¶ 26) (Miss.2000); Byrd v. Public Employees’ Retirement Sys., 774 So.2d 434, 440-41 (¶ 30-33) (Miss.2000); Flowers v. Public Employees Retirement Sys., 748 So.2d 178, 180(¶ 8) (Miss.Ct.App.1999). As the Mississippi Supreme Court stated in Dishmon, following this Court’s prior rulings, the employee’s due process rights are violated when “one of the physicians sitting on the Disability Appeals Committee also [sits] on the Medical Review Board.” Dishmon, 797 So.2d at 896(¶ 34). As such, this Court would have had to reverse and remand this case for this plain error, but for the judgment of the circuit court reversing the commission’s decision to deny.

¶ 14. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED. COSTS ARE ASSESSED AGAINST THE APPELLANT.

McMILLIN, C.J., AND KING, P.J., THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ„ CONCUR, SOUTHWICK, P.J., AND BRANTLEY, J., NOT PARTICIPATING.


author: CHANDLER, J.,

text:
    Randall Sawyer SMITH, Appellant v. Angela Beth Smith LITTLE, Appellee.
    No. 2001-CA-00965-COA.
    Court of Appeals of Mississippi.
    Dec. 10, 2002.

      John W. Christopher, Ridgeland, for appellant.
    James A. Bobo, Pearl, C. Jason Wom-ack, Brandon, for appellee.
    Before SOUTHWICK, P.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Dr. Randall and Angela Smith were granted an irreconcilable differences divorce after fourteen years of marriage. The couple agreed to a property settlement, alimony payments and child custody arrangements. Feeling aggrieved, Randall appeals arguing that some of the provisions outlined in the settlement agreement were in the form of periodic alimony and not in the form of lump sum alimony or the division of marital assets. Due to a series of material changes in circumstances, he argues that his payments should either be terminated or modified. Finding no error, we affirm.

FACTS

¶ 2. Dr. Randall Smith and Angela Smith were married on January 24, 1986. The couple had a son and Angela adopted Randall’s daughter from his previous marriage. After the birth of their son, Angela quit her career to stay home with the children. At the time of their separation Randall’s income was $18,000 per month.

¶ 3. During the marriage Randall and Angela had a waterfront home located at the Ross Barnett Reservoir in Rankin County. In February 1999, the parties separated and Randall purchased a townhouse in Brandon, Mississippi, for Angela and the two children. Angela currently lives there along with the children and her current husband, Trey Little.

¶ 4. During the separation Angela began an affair with Trey Little. Randall was aware of the relationship. On November 3, 1999, the parties filed for divorce based upon irreconcilable differences. On February 14, 2000, a final decree for divorce was granted. Four days later, on February 18, 2000, Angela and Trey married. Five months later on June 22, 2000, Angela gave birth to a child. There is no dispute that Trey is the father.

¶ 5. The day after the child was born, Randall filed a “Motion To Set Aside the Judgment of Divorce,” alleging that Angela had intentionally withheld information concerning her pregnancy and had thereby perpetrated a fraud upon Randall and the trial court. Randall argued that he never would have entered into the agreement had he known about the pregnancy. The trial judge dismissed the motion because Randall had failed to show by clear and convincing evidence that Angela, at the time of signing the joint complaint on November 2, 1999, knew she was pregnant.

¶ 6. On February 1, 2001, Randall filed an amended petition to modify the judgment. He now appeals the trial court’s ruling on the following issues. First, he seeks to relieve his obligation to provide Angela with the Jaguar automobile and to pay her $400 per month after the termination of the lease. Second, he seeks to stop payments made on the Brandon, Mississippi townhouse. He also moves for relief of the trial court’s order that he pay Angela for sixty months following the sale of the residences.

LAW AND ANALYSIS

¶ 7. Randall claims that the two provisions concerning the Jaguar automobile and the townhouse residence were in the form of periodic alimony. Due to three material changes in circumstances, Randall argues that the agreement is modifiable. These three changes in circumstances include: Randall’s change in financial position, Angela’s remarriage, .and Angela’s conception of a child by Trey prior to the divorce decree.

¶ 8. This Court’s standard of review in domestic relations matters is limited. The chancellor’s findings will not be disturbed unless he was “manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Thompson v. Thompson, 816 So.2d 417, 419 (¶ 7) (Miss.Ct.App.2002).- “Especially on issues arising out of a divorce, the chancellor’s findings will not be reversed unless manifestly wrong.” Mount v. Mount, 624 So.2d 1001, 1004 (Miss.1993). As long .as the chancellor’s decision-is. supported by credible evidence then his decision will be “insulated from disturbance on appellate review.” Peterson v. Peterson, 797 So.2d 876, 879(¶ 9) (Miss.2001).

¶ 9. Mississippi recognizes four different types of alimony: 1) periodic, 2) lump sum, 3) rehabilitative, and 4) reimbursement. Guy v. Guy, 736 So.2d 1042, 1046 (¶ 15) (Miss.1999); Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). Periodic alimony is the traditional monthly alimony awarded on the basis of need. Id. at 129. This form of alimony generally has no fixed termination date except it automatically terminates at the death of the obligor or the remarriage of the obligee. East v. East, 493 So.2d 927, 931 (Miss.1986). Periodic alimony can also be modified or even terminated in the event of a material change of circumstances subsequent to the decree awarding alimony. Wray v. Wray, 394 So.2d 1341, 1344 (Miss.1981). The alimony becomes vested only when the payment becomes due. Brand v. Brand, 482 So.2d 236, 237-38 (Miss.1986).

-¶ 10. By way of contrast, the second type of alimony is lump sum. It is a fixed and irrevocable amount, used either as alimony or as a part of property division. Wray, 394 So.2d at 1345. It may be payable in a single lump sum or in fixed periodic installments. Creekmore v. Creekmore, 651 So.2d 513, 516 (Miss.1995). At the time of the decree, lump sum alimony is vested in the obligee and becomes an obligation of the estate of the obligor if he or she dies before payment. Maxcy v. Estate of Maxcy, 485 So.2d 1077, 1078 (Miss.1986).

¶ 11. The- third and fourth types of alimony have only recently been recognized by the courts. Rehabilitative alimony, recognized in 1995, is a monthly payment that is modifiable, but has a fixed termination date, and is designed to help the recipient reenter the workforce. Hubbard, 656 So.2d at 130. The'fourth type, reimbursement alimony, recognized in 1999, is available to one who has supported a spouse in obtaining training or education which carries the possibility of future earnings, but which has not yet produced substantial property for division. Guy, 736 So.2d at 1046 (¶ 15).

¶ 12. Randall’s first contention concerns a leased Jaguar and the alimony payments following the termination of the lease. According to the settlement agreement, the parties agreed that Angela would get possession and use of the 1998 Jaguar XJB and that Randall was responsible for the car’s payments, maintenance, upkeep and insurance. Her possession of the automobile was contingent upon whether Randall sold it, surrendered it to the lessor, or the lease’s expiration in October 2001. The agreement also specified that after Randall exercised one of these options, he would - pay Angela $400 per month until December 31, 2007, unless she remarried. If Angela remarried, the payments would stop December 31, 2005.

¶ 13. Over the years the court has encountered difficulties in distinguishing whether the alimony provision granted by the chancery court is one that is modifiable or vested and final. East, 493 So.2d at 932 (citing Taylor v. Taylor, 392 So.2d 1145, 1148 (Miss.1981)); McKee v. McKee, 382 So.2d 287, 288 (Miss.1980); Butler v. Hinson, 386 So.2d 716, 718 (Miss.1980); Hopkins v. Hopkins, 174 Miss. 643, 649, 165 So. 414, 416 (1936). Randall argues that the Jaguar lease provision is clearly periodic alimony and -npt.lump sum alimony or the division of marital assets. He first contends that the provision is worded un-clearly therefore inhibiting the parties from determining what type of award they had reached in the agreement. Citing Sharplin v. Sharplin, 465 So.2d 1072, 1073 (Miss.1985), Randall argues that where it is unclear as to the type of award granted, the court is to consider it periodic alimony.

¶ 14. Randall contends that the magic words “lump sum” or “periodic” must be included in the wording of the agreement. However, the Mississippi Supreme Court on numerous occasions has found alimony awards to be lump sum which did not include those words. Creekmore, 651 So.2d at 516; Bowe v. Bowe, 557 So.2d 793, 795 (Miss.1990); Maxcy, 485 So.2d at 1078. The court looks to the substance of the provisions and, as long as reasonable clarity is achieved, the court will not broadly assume the provision to be only periodic alimony. Maxcy, 485 So.2d at 1078.

¶ 15. In East, 493 So.2d at 932, the Mississippi Supreme Court was asked to declare that a similar payment provision in a settlement agreement was modifiable. Although never mentioned in the agreement, the Court held that the award was in the form of lump sum alimony. Id. The court stated that where the agreement addressed that the payments would, not terminate upon either his death or her remarriage then the intent of the parties was for this provision to be a lump sum award. Id. Similarly, the Jaguar provision states that once Randall exercises one of his three options of selling the car, turning it back in to the lessor, or allowing the lease to expire, he will be required to pay Angela $400 per month until December 31, 2005, or extended until December 31, 2007, if she, is not married. Therefore, the provision establishes that the payments will continue for a set period of time even if Angela remarries.

¶ 16. Randall next contends that the provision entitled “Miscellaneous” within the agreement does not apply to the Jaguar provision. The paragraph reads: “Unless otherwise denoted all division and transfer of property and all payments made as a result of this Agreement are to be considered a division of marital assets and not as alimony payments.” He argues that this provision does not apply because it pertains only to marital assets, and he contends that a lease is not an asset. This is clearly incorrect. The rights of possession, use and the right in most vehicle leases to purchase the item at the end of the lease term are all valuable assets associated with a lease. It is clear that the chancellor was within his discretion in determining the payment to Angela was the division of marital assets and therefore not modifiable.

¶ 17. The second provision concerns Randall and Angela’s agreement to the division of their real property. In the settlement agreement, the parties contracted to continue to jointly own the two residences located in Rankin County, Mississippi: the former marital home located and the townhouse. Randall asserts that the real property provision is either in the form of periodic alimony or periodic rehabilitative alimony and therefore should have been terminated upon Angela’s marriage to Trey. He argues that it is inequitable to require him to pay for a residence to be used by Angela and her present husband and their child.

¶ 18. The parties agreed to place both properties on the market for sale and divide the proceeds. Upon the sale of the marital residence, Angela would receive half of the sale price plus an extra $30,000. The parties agreed that they would not sell the marital residence for less than $425,000. Randall agreed to make all payments associated with the properties. The parties agreed that in conjunction with the sale of both of the homes that Angela would be paid an additional $69,000 over a sixty month period. The parties also provided for Angela to be compensated if the townhouse sold first as Randall would then pay Angela $500 per month until the marital residence sold.

¶ 19. The issue pertaining to the division of real property in this case is addressed in Logue v. Logue, 234 Miss. 394, 106 So.2d 498 (1958). In Logue, the parties filed a separation agreement which entitled the wife to the marital home. Id. at 396, 106 So.2d at 499. The husband agreed to assume the $78 monthly note on the home. Id. at 398, 106 So.2d at 499. After the couple’s divorce, the wife remarried and the husband stopped the mortgage payments. Id. at 399, 106 So.2d at 500. The agreement provided no provision for termination upon the wife remarrying. Id. at 400, 106So.2d at 500. The Mississippi Supreme Court held that the provision was in the form of an agreement to equalize the property settlement between the parties and therefore was unmodifiable. Id.

¶ 20. Historically the courts have recognized that parties may upon dissolution of their marriage have a property settlement incorporated in the divorce decree. East, 493 So.2d at 931. These agreements are contractual in- nature and are not subject to modification. Barton v. Barton, 790 So.2d 169, 172 (¶ 10) (Miss.2001). “A true and genuine property settlement agreement is. no different from any other contract, and the mere fact that it is between a divorcing husband and wife, and incorporated in a divorce decree, does not change its character.” Wells v. Wells, 800 So.2d 1239, 1242 (¶ 5) (Miss.Ct.App.2001). In Stone v. Stone, 385. So.2d 610, 612 (Miss.1980), the court held that a property settlement agreement may have modifiable and nonmodifiable provisions. The court noted the difference between provisions concerning child and spousal support and those provisions pertaining to the conveyance, maintenance, and occupancy of land. Id. The former is modifiable but the latter is not. Id.

¶ 21. In Randall and Angela’s real property agreement, instead of providing for a one time payment or the immediate liquidation and division of proceeds, the agreement provides for the orderly liquidation of the marital assets over time. It gives Randall the opportunity to pay the fixed and certain cost of the property division over time. Angela comes away from a fourteen year marriage with half the equity in two mortgaged and improved parcels of real estate and payments totaling $119,000 with these payments being expressly connected to. the disposition of specific items of real estate.

¶ 22. Randall next argues that the provision is ambiguous due to its concluding sentence:

This is a lump sum marital settlement between the parties and is intended as readjustment support for the wife and' is not subject to modification by this Court and this agreement is not and shall not be dischargeable under the Bankruptcy Act, as same were incurred for the marital expenses incurred by the parties for their marital benefit.

He contends that the phrase “readjustment support for the wife” makes the award nothing more than periodic rehabilitative alimony which is subject to modification. He again cites to Sharplin, 465 So.2d at 1073, which states that where the wording of an award is unclear, the chancellor must consider it to be in the form of periodic alimony. However, as discussed earlier, in determining what type of award has been granted the Court must look past labels and into the substance of the agreement. Maxcy, 485 So.2d at 1078.

¶ 23. Randall’s argument that the provision is ambiguous does not show the chancellor was manifestly wrong in determining the award was a division of marital assets. Other than the word “readjustment,” all other indicators point to the award being in the form of lump sum alimony or the division of marital assets. The provision states it is nonmodifiable and is terminable at a given date. It also states that the award is to be considered a “lump sum marital settlement.” “Absent fraud or a contractual provision stating otherwise, neither a property settlement nor lump sum alimony may be modified.” Norton v. Norton, 742, So.2d 126, 129 (¶ 12) (Miss.1999). Therefore, the chancellor was not in error in determining the provision to be the division of marital assets.

¶ 24. The chancellor’s findings were not manifestly wrong nor were the findings clearly erroneous. The chancellor did not apply an erroneous legal standard. Therefore, we affirm.

¶25. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: BRANTLEY, J.,

text:
    Dwight McCLEE, Appellant/Cross-Appellee v. Valencia SIMMONS, Appellee/Cross-Appellant.
    No. 2001-CA-01546-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.

      Callestyne Hall Crawford, Greenwood, for appellant.
    Shirley G. -Rice, Greenwood, for appel-lee.
    Before KING, P.J., IRVING, and BRANTLEY, JJ. ■
   BRANTLEY, J.,

for the Court.

¶ 1. This appeal was taken from an order entered by the Chancery Court of Leflore County, Mississippi which established paternity and awarded monthly child support. Valencia Simmons filed an original “Petition to Establish Paternity, Support, and Other Relief’ against Dwight McClee in the Chancery Court of Leflore County, Mississippi on March 25, 1998. The hearing on this matter was held on July 24, 2001, and the chancellor ordered McClee to pay monthly child support to Simmons, an arrearage commencing March 1, 1997 through July 31, 2001, and support for medical expenses. Ms. Simmons, in her cross-appeal, asks this Court to award court cost to her and a fifteen percent penalty on the judgment of $10,200. Finding no error, we affirm.

FACTS

¶ 2. In July of 1986, Valencia Simmons and Dwight McClee had a relationship which produced a- child, Fantasia Aquanet-ta Simmons, born on April 17, 1987. The parties never married and the child has been in the custody of her mother since birth, currently living in Norfolk, Virginia. A paternity evaluation conducted on August 11, 1999, determined Dwight McClee is the biological father of Fantasia Simmons. Both parties stipulated to this fact at the hearing on July 24, 2001.

¶ 3. Valencia Simmons, a member of the United States Navy, earns approximately $3,100 in gross monthly income. Her daughter is insured through the Navy’s health care in which the Navy pays the premiums and eighty percent of the medical bill. Ms. Simmons pays the other twenty percent and $8 a month for dental insurance which is deducted from her pay check. While Ms. Simmons maintains custody of Fantasia Simmons, her naval duties require her to be stationed overseas or at different naval bases and the child has resided with Ms. Simmons’s mother in Greenwood during these periods or with other family friends.

¶ 4. McClee lives in Greenwood, Mississippi and is employed with the Greenwood Fire Department. His yearly salary is approximately $31,392. Withheld from his pay check monthly include: Fica: $162.30; Medicare: $37.96; Federal Income Tax Withholding: $300.14; State Income Tax Withholding: $72; Mandatory Retirement: $189.78 and Court Ordered Child Support: $253.50. After these deductions, McClee’s monthly adjusted gross income is approximately $1,600.

¶ 5. McClee has four other children, a twenty three-year-old, a seventeen-year-old who lives with him, and two younger children for whom McClee pays court ordered child support. McClee also pays the premiums on health insurance for his three dependent children. Additionally, he has voluntarily paid child support for Fantasia Simmons in the amount of $111.11 a month from January 2001 to June 2001. He also paid for her school tuition from August through December of 2000 which was approximately $158 a month; her school uniforms which were approximately $250; and various other amounts as gifts or for spending money.

¶ 6. Valencia Simmons filed a petition to establish paternity and child support on March 25, 1998. The hearing was held in the Chancery Court of Leflore County on July 24, 2001. The chancellor ordered McClee to pay monthly child support to Ms. Simmons in the amount of $224 per month beginning August 1, 2001. He also ordered McClee to pay an arrearage commencing March 1, 1997 through July 31, 2001, for a total of $12,320. The chancellor gave McClee credits for various prior pay1 ments totaling $3,120 and entered a judgment for $10,200 to be paid at the rate of $50 per month. . He was also ordered to pay seventy-five percent of all medical expenses incurred by the child not covered by insurance,- or if he chooses to obtain supplemental insurance, then he shall pay fifty percent of all medical expenses incurred for the child. Aggrieved by the chancellor’s findings, McClee has now perfected this appeal.

STANDARD OF REVIEW

¶ 7. 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.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY DEVIATING FROM THE GUIDELINES WITHOUT MAKING FINDINGS EXPLAINING THE DEVIATION.

¶ 8. McClee argues the chancellor deviated from the statutory guidelines used to establish child support in Miss. Code Ann. § 43-19-101 (Rev.2000) without making specific findings for this deviation. This Court is baffled by this argument and finds no evidence of this in the record. In § 43-19-101(1) the state established the following guidelines to assist the chancellor in awarding child support: 1 child' — 14% of adjusted gross income; 2 children — 20% of adjusted gross income; 3 children — 22% of adjusted gross income; 4 children — 24% of adjusted gross income; 5 or more — 26% of adjusted gross income. Under § 43-19-101(3)(a) of the statute, the chancellor must make the following mandatory deductions to determine adjusted gross income: federal, state and local taxes, social security contributions, mandatory retirement and disability contributions, and court ordered child support. When reviewing child support awards, this Court examines the record- to determine whether the chancellor’s award is supported by sufficient evidence. Powell v. Powell, 644 So.2d 269, 275 (Miss.1994).

¶ 9. While the chancellor never refers specifically to the statutory guidelines, it is clear from the record he is relying on them to reach his decision. He repeatedly refers to adjusted gross income, and the statutory deductions allowed to reach this figure. The chancellor uses McClee’s most recent paycheck to determine his gross income and makes all the required statutory deductions to determine McClee’s adjusted gross income is $1,600 a month. If you multiply this figure by fourteen percent, which is the correct percentage under the statute, the total monthly child support equals $224. This is the amount McClee was ordered to pay. Clearly, the chancellor followed the statutory guidelines and made no deviation. There was sufficient evidence to support the chancellor’s child support award. McClee’s argument is without merit and this Court upholds the chancellor’s ruling.

II. WHETHER THE CHANCELLOR USED AN IMPROPER STANDARD IN REQUIRING THE APPELLANT TO PAY CHILD SUPPORT FROM 1997 AT THE SAME RATE AS IN 2002.

¶ 10. The chancellor is required to address the issue of back child support in his order establishing paternity and awarding child support. Miss.Code Ann. § 93-9-29(2) (Rev.1994). Further, the chancellor is limited to assessing liability on the father for back child support to the one year before the commencement of the action. Miss.Code Ann. § 93-9-11 (Rev.1994).

¶ 11. The chancellor broke down the lump sum award for back child support as follows: $224 a month from March 1, 1997 through July 31, 2001, which covered the one year period preceding the filing of the petition in March 1998, and the period from the filing of the petition to the date monthly payments were to begin on August 1, 2001, for a total of $12,320. Additionally, the chancellor gave McClee a credit in the amount of $2,120 for the five months the child was residing in Mississippi plus-additional sums paid on behalf of the child, resulting in a total lump sum in the amount of $10,200. The chancellor ordered McClee to pay this in $50 monthly increments beginning August 1, 2001, until the amount is fully paid.

¶ 12. In raising the issue, McClee claims the chancellor.erred by ordering him to pay back child -support from 1997 at the same rate as in 2002. This, McClee claims, established an escalation clause, which did not factor in specific considerations, such as McClee’s salary in 1997, the children’s needs and.inflation. It is a well-settled rule that this Court will only consider facts found within the trial record. Colenburg v. State, 735 So.2d 1099(¶ 6) (Miss.Ct.App.1999). This Court does not rely on assertions made in briefs, but only on facts preserved within a record certified by law. Henderson v. State, 783 So.2d 769(¶ 4) (Miss.Ct.App.2001). As in this case, if McClee wanted the chancellor to factor in specific considerations with regard to the back child support, he should have entered them into evidence at trial. McClee made no mention as to any specific considerations he may have had regarding child support during the years 1997 to 2001. Also, McClee’s tax returns for the years 1997, 1998, 1999, and 2000 were subpoenaed by Ms. Simmons and he failed to provide them. McClee had ample opportunity to admit this issue into evidence and failed to do so. Therefore, this Court holds this issue is dismissed, as it relies almost exclusively on facts not found within the record.

¶ 13. Additionally, even if the record contained sufficient evidence to consider McClee’s claim, this Court finds the chancellor did not abuse his discretion. The one-year limitation on a father’s liability for past, necessary support and maintenance is in no way a statutory requirement on the amount of support a father should be ordered to pay. McNeil v. Hester, 753 So.2d 1057(¶ 21) (Miss.2000). Matters such as these are left to the discretion of the chancellor. Id. After examining the record in this case, there is no evidence the chancellor abused his discretion on the matter of back child support.

III. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY NOT GIVING A DEDUCTION FOR THE CHILD LIVING IN APPELLANT’S HOME.

¶ 14. Under Miss.Code Ann. § 43-19—101(3)(d) (Rev.2000), the chancellor may subtract an amount that he deems appropriate to account for the needs of another child living in the home of the absent parent. This is clearly left up to the discretion of the chancellor and is not a mandatory provision of the statute. Bailey v. Bailey, 724 So.2d 335(¶ 11) (Miss.1998).

¶ 15. McClee argues the chancellor failed to determine if there was some special need of the child living with him and this Court should reverse and remand to make further determination. As previously addressed, if McClee wanted the chancellor to consider the special needs of the child living with him, he should have introduced this evidence at trial. There is no mention of any need this child may have which is greater than that of any of the other children.

¶ 16. Additionally, the chancellor made the following findings with regard to the child living with McClee:

I do not believe, under these circumstances, that I should or need to take into consideration the child living with him. I know that it is an expense, but the child is 17 years old. With the percentages for one child, and taking all the other deductions, I do not believe it would be fair to deduct anything further from his wages to determine what his child support should be figured at per month.

McClee made no objection at trial to this statement, and made no attempt to offer any proof of the expenses this child may have. We find the chancellor’s reasoning regarding McClee’s custodial child to be sound. The chancellor did not abuse his discretion and we uphold his decision.

IV. DID THE LOWER COURT ERR BY NOT AWARDING COURT COSTS TO THE APPELLEE?

¶ 17. The cross-appeal presents the question of whether court costs should have been awarded to Ms. Simmons. The award of court costs is entrusted to the sound discretion of the chancellor. Mar tin v. Martin, 566 So.2d 704, 707 (Miss.1990). The problem with this claim is that no proof was placed in the trial records with regard to Ms. Simmons’s court costs. There is no attempt in the record by Ms. Simmons to explain why court costs should be awarded to her, or for that matter, no actual request by Ms. Simmons for the award. No affirmative evidence was offered and no evidence was shown to prove Ms. Simmons had confirmed her costs of court with the trial court. As stated previously, this Court may only base its rulings upon evidence found within the record. We find no abuse of the chancellor’s discretion in this instance. Therefore, we affirm his order and also deny the motion for court costs to her on this appeal.

V. WHETHER APPELLEE IS ENTITLED TO AWARD OF FIFTEEN PERCENT PENALTY ON THE JUDGMENT OF $10,200.

¶ 18. Under Miss.Code Ann. § 11-3-23 (Rev.1991), if the judgment of the court below for a sum of money be affirmed, a judgment against the appellant for damages at the rate of fifteen percent may be entered on the lower court’s judgment. This section only applies to unconditional affirmances. Shipman v. Lovelace, 215 Miss. 141, 144, 60 So.2d 559, 560 (1952). Accordingly, we award fifteen percent penalty on the judgment of $10,200.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF LEFLORE COUNTY IS AFFIRMED ON DIRECT AND CROSS APPEALS. STATUTORY DAMAGES AND INTEREST ARE AWARDED TO THE APPELLEE. COSTS ARE ASSESSED TO THE APPELLANT.

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