author: McMILLIN, C.J., for the court.

text:
    Jim E. ARON, Appellant/Cross Appellee, v. Andrew J. REID, Appellee/Cross Appellant.
    No. 2001-CA-00348-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Omar D. Craig, Oxford, attorney for appellant.
    Cliff R. Easley, Jr., Bruce, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.
   McMILLIN, C.J., for the court.

¶ 1. Jim Aron filed suit against Andrew J. Reid in the Chancery Court of Calhoun County alleging that he held a partnership interest in a convenience store business operated by Reid in Calhoun City. Among other forms of relief, Aron sought an accounting for all profits generated from the operation of the enterprise from its inception together with a determination that he was entitled to a judgment for one-half those profits. Reid answered and denied that Aron owned any such interest in the business. Additionally, he filed a counterclaim seeking cancellation of a recorded quitclaim deed that, on its face, appeared to be a conveyance by Reid to Aron of a one-half interest in the real property on which the business was situated. Reid alleged that he never intended to make such a conveyance and that his signature on the instrument was either a forgery or obtained by trick and deception.

¶ 2. At the conclusion of the proof, the chancellor held that Aron had failed to carry his burden of proof to establish ownership of an interest in the business enterprise. He also granted Reid relief on his counterclaim and ordered the disputed quitclaim deed struck from the land records of the county, finding that Reid’s signature on the instrument was not genuine.

¶ 3. From that judgment, Aron perfected this appeal in which he raises four issues. Those issues are (a) that the chancellor erred as a matter of law in setting aside the deed in favor of Aron, (b) the chancellor erred in not barring Reid’s counterclaim to set aside the deed on the equitable doctrine of laches, (c) the chancellor was manifestly in error in failing to find that Reid held title to the business assets in a constructive trust in favor of Aron, and (d) the chancellor erred in determining that Aron failed to meet his burden of proof to establish an ownership interest in the convenience store. We find the issues raised on appeal to be without merit and affirm the decision of the chancellor.

I.

Facts

¶ 4. Essentially all of the evidence presented at trial bearing directly on the critical issues before the court came from the testimony of Aron and Reid. They gave markedly different versions of the events, which we will briefly summarize, beginning first with Aron’s version.

A.

Plaintiff Aron’s Evidence

¶ 5. Aron claimed that he and Reid located a lot in Calhoun City that would be suitable for operation of a convenience store that dispensed gasoline products. Aron also located a metal building in another city that could be dismantled and transported to the business site and would serve to house the business. Aron and Reid purchased the building together, with each paying one-half the purchase price. Aron assumed much of the responsibility for these aspects of the prospective operation, including the dismantling and removal of two existing structures on the Calhoun City site to facilitate the erection of the new building.

¶ 6. The agreement between Aron and Reid was that Reid’s wife would assume the day-to-day management of the business, for which she would be entitled to a reasonable salary, and that any profits remaining thereafter would be divided equally between the two principals.

¶ 7. No written instruments were executed evidencing this agreement and the title to the real property was taken solely in the name of Reid. Aron attempted to explain this by testifying that he had recently been through some difficulties with federal law enforcement officers and that he was under a watchful eye from that source. He explained that he and Reid had arrived at a scheme whereby Aron would secretly supply tax-exempt diesel fuel intended for off-road use for resale to the general public for over-the-road use, thereby permitting substantially greater profits than would be available to a legitimately operated business engaged in the sale of diesel fuel. Aron indicated that he desired to keep his name off any aspect of the business for fear that it would attract the attention of the federal authorities.

¶ 8. In the course of setting up the business, Aron and Reid borrowed the sum of $25,000 from a local businessman under a repayment agreement that called for weekly payments with Aron to pay one week and Reid to pay the next. The repayment of the money was informally secured by the delivery to the businessman of an unrecorded quitclaim deed from Reid to Aron of a one-half interest in the business property along with a second quitclaim deed to the same one-half interest executed by Aron with the name of the grantee left blank. Apparently, the intentions of the parties were that, in the event of default, the lender could insert his name in the second deed and record both instruments, thereby vesting him with a one-half interest in the property.

¶ 9. Soon after the business was set up, Aron was incarcerated on charges unrelated to this case and, thus, lost day-to-day contact with the business. This prevented Aron from going through with the plan to surreptitiously furnish tax-exempt diesel fuel for resale at the higher over-the-road prices and Reid proceeded to obtain diesel fuel from another source. Aron’s imprisonment also caused some delay in the repayment of his one half of the $25,000 loan; however, after his release, he was able to ultimately pay his part, at which time the businessman delivered back to Aron the quitclaim deed from Reid and Aron had the deed filed for record.

¶ 10. Aron’s repeated demands to Reid for a full accounting of the business operation during his period of incarceration were met with stalling tactics and promises by Reid that his wife had the necessary figures and would ultimately come up with a proper accounting for profits. Finally, feeling dissatisfied with Reid’s empty promises, Aron filed this action.

B.

Defendant Reid’s Version

¶ 11. Reid became interested in the Calhoun City lot to open a second convenience store to complement his operation in the city of Bruce. He purchased the lot by financing it with a loan from a commercial bank. Aron, in the meantime, located a building suitable for the operation and Aron and Reid bought the building as a joint venture with Aron taking principal responsibility for moving the building to the Calhoun City lot. Subsequently, the parties reached an agreement whereby Aron would receive the two existing structures on the lot in exchange for his half interest in the new building and as compensation for his efforts in moving the building. The smaller of the two existing buildings was sold by Aron to a third party for several thousand dollars on the condition that it be promptly removed. Aron retained all of that money. The second, and larger, of the two existing buildings was dismantled by Aron and re-erected on another lot owned solely by Aron. Aron subsequently found a tenant for this building and leased it, receiving all of the rental proceeds from that arrangement.

¶ 12. Reid contracted with a petroleum distributor to install gasoline pumps, tanks and related facilities for the sale of gasoline, but that distributor was doubtful that the business could do sufficient volume of diesel sales to warrant installing the necessary storage and pumping equipment. As a result, Aron and Reid reached a separate agreement whereby they would jointly borrow the money to purchase and install diesel storage and pumping facilities and Aron would furnish diesel for sale, paying Reid a five cents per gallon commission on all diesel fuel sold on the premises. It was in furtherance of this undertaking that the $25,000 loan described above was obtained. Later, however, Aron asked Reid to purchase his one-half interest in the diesel storage and dispensing equipment and Reid obliged by issuing Aron a check for $13,500, representing half the loan plus half the agreed interest totaling $2,000 that the lender had required. Aron continued for a few months to furnish diesel fuel until Reid subsequently discovered that, without his knowledge, Aron had been delivering tax-exempt diesel fuel for sale on the premises, thereby permitting Aron alone to obtain excessive profits from the sales since he got the entire purchase price from diesel fuel sales save for the flat five cents per gallon commission allowed to Reid. Upon making that discovery, Reid ceased doing business with Aron. Reid was able to convince his gasoline supplier, based on actual sales figures since opening the business, that diesel fuel sales were now economically feasible. That supplier purchased the diesel fuel dispensing and storage equipment from Reid and entered into an agreement typical for such businesses whereby the equipment would remain on the premises, the supplier would keep a supply of diesel fuel in storage that Reid would sell to the general public, holding the sale proceeds in trust for the supplier. In exchange for effectuating these sales and accountings to the supplier for the sale proceeds, Reid would be entitled to deduct a sales commission for himself. Upon receipt of the sale proceeds, Reid paid off the balance of the amount he owed on the $25,000 loan.

¶ 13. After initially suggesting that Aron might have obtained Reid’s signature on the disputed quitclaim deed by some sort of trick, Reid testified unequivocally that he did not believe the signature on the deed to be his. He testified concerning certain characteristics of the signature that did not match his actual writing. Additionally, he called several family members who testified to their familiarity with Reid’s handwriting and who indicated that the questioned signature did not appear to be that of Reid.

¶ 14. The notary public who had acknowledged Reid’s signature on the deed was, according to the proof, Aron’s daughter who was employed by him at the time the deed was purportedly executed. At trial, she did not ever testify directly that she remembered Reid signing the deed in her presence or acknowledging the genuineness of the signature in her presence. All she would testify to was the fact that, if she had acted as notary public in the acknowledgment, then Reid would have signed it in her presence. Several members of Reid’s family, however, testified to having confronted the daughter shortly after the instrument was discovered to have been recorded and that, at that time, she conceded that she had not witnessed Reid’s execution of the instrument.

II.

The Chancellor’s Decision

¶ 15. The chancellor, after hearing these sharply contrasting versions of the events leading up to this litigation, determined that the evidence offered by Reid was more credible than that offered by Aron. He found that Aron had failed in his burden to offer evidence found persuasive to the chancellor that he did, in fact, surreptitiously own a one-half interest in the Calhoun City convenience store operation or any part of the assets of that business. The chancellor further held that Reid had shown by clear and convincing evidence that the signature on the purported quitclaim deed to Aron was not that of Reid and that the instrument should be canceled as a cloud on Reid’s title to the property.

III.

The Issues and Our Scope of Review

¶ 16. Though Aron, in his brief, attempts to raise his various issues as errors of law, we conclude that they are, in actuality, allegations that the chancellor’s findings of fact were contrary to the credible evidence presented at trial. These issues relate to the chancellor’s decision to set aside the quitclaim deed and his decision that Aron had not satisfactorily proven an ownership interest in the business operation itself. In point of fact, the two issues relating to Aron’s alleged secret ownership of an interest in the business operation appear to raise the same issue, which is whether the chancellor’s findings of fact are supported by substantial evidence in the record. Such determinations by the chancellor, sitting as finder of fact, are subject to a narrow review on appeal that limits this Court to an inquiry as to whether the chancellor abused his discretion in determining the actual facts as he believed them to be on sharply conflicting evidence. Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993). While the standard is that evidence to set aside a deed apparently valid on its face must be clear and convincing (see Culbreath v. Johnson, 427 So.2d 705, 707 (Miss.1983)), the chancellor’s view of what evidence presented appeared more probative and persuasive in determining whether that burden was met is entitled to substantial deference when reviewed on appeal.

IV.

Cancellation of Quitclaim Deed

¶ 17. Reid testified that, upon examination, he was convinced that the signature on the quitclaim deed purported to be his was not genuine. In all events, he testified that no matter how the signature on the deed was produced, he never intended to convey any interest in the property to Aron and never agreed to make such a conveyance. Other family members familiar with Reid’s handwriting offered their opinions that the signature on the deed, though bearing some similarity to Reid’s, did not appear authentic.

¶ 18. The deed in question bore on its face an execution date of March 21, 1989, but Aron did not record the instrument on the land records of Calhoun County until December 28, 1993. His explanation for the delay was suspect, involving as it did an alleged scheme to hide his involvement in the business so that he and Reid could engage in a tax-avoidance scheme and thereby reap unwarranted profit from the sale to the motoring public of untaxed diesel fuel intended for off-road use. Reid denied any such scheme, testifying that under their marketing agreement, he received only a flat five cents per gallon commission that would have been unaffected by whether or not the diesel fuel had been properly taxed, and that he promptly severed his marketing relationship with Aron when he discovered that Aron was secretly providing untaxed fuel to the business. The chancellor’s decision to believe Reid’s version of the facts is, on appellate review, entitled to deference. Collins v. McMurry, 539 So.2d 127, 129 (Miss.1989). Conceding that deference to the chancellor’s fact-finding, this Court concludes that Reid’s version is entirely plausible, not impeached or contradicted by any objective evidence to any marked degree. It is, therefore, beyond our authority to disturb the chancellor’s decision to rely on that evidence as the more trustworthy in deciding the case.

¶ 19. Any presumption arising out of the fact that the deed appeared on its face to be properly acknowledged before an officer authorized to acknowledge such instruments for recording (see Greenlee v. Mitchell, 607 So.2d 97, 107 (Miss.1992)) was, in the view of this Court, substantially weakened by evidence that the acknowledging official was Aron’s daughter who was an employee at the time and who had, in the past, made statements regarding the circumstances of the deed’s acknowledgment that did not entirely square with her testimony at trial. In the circumstances of this case, we conclude that the evidence calling the deed into question was substantial enough to overcome any presumption of validity arising solely out of the fact that the instrument appeared on its face to be properly acknowledged. We further conclude that the evidence could properly be construed as rising to the level of clear and convincing evidence of the invalidity of the instrument. Thompson v. Shell Western E & P, 607 So.2d 37, 40 (Miss.1992). In that circumstance, we find no basis to disturb the chancellor’s decision.

V.

Laches

¶ 20. Aron recorded the 1989 deed on December 28,1993. Reid testified that he first discovered the existence of the recorded deed, which he considered not to be legitimate, on or about 1995, when he discovered Aron’s name on his tax notice from the Calhoun County Tax Assessor. He did not formally commence any legal action to set aside the deed, however, until December 11,1998, when he filed his counterclaim in this action. Aron now claims that this long delay should constitute an equitable bar to pursuing such a claim under the doctrine of laches, an equitable doctrine that prevents one from pursuing a claim after an inordinate and unjustified delay that works to the disadvantage of the responding party. Allen v. Mayer, 587 So.2d 255, 260 (Miss.1991).

¶ 21. Such a defense is in the nature of an affirmative defense that must be affirmatively pled. M.R.C.P. 8(c). Aron did not plead the defense in his answer, nor did he actively assert a claim of laches at the trial of the cause. Rather, he attempts to raise the issue for the first time on appeal, a practice that is not permitted since it is the role of an appellate court to review alleged errors committed during the trial of the case rather than to consider matters, however meritorious, that were not presented to the trial court for consideration. Read v. Southern Pine Elec. Power Ass’n, 515 So.2d 916, 921 (Miss.1987). On that basis, we decline to consider Aron’s arguments concerning the application of the doctrine of laches.

VI.

Aron’s Claim of Ownership in the Business Enterprise

1122. Separate and apart from Aron’s claim of ownership of an undivided one half interest in the real property is his claim that he also owned a one half interest in the business operation conducted on the premises and was, as a result, entitled to a full accounting for the store’s financial operation since its beginning together with a judgment for one half of any profits demonstrated to have been generated by that accounting.

¶ 23. The chancellor heard sharply contradictory evidence on the question. No documentary evidence was produced by Aron that would tend to establish the validity of his claim. Rather, his claim was based solely on his own credibility in asserting secret ownership purposely concealed for the purpose of avoiding detection of a wrongful scheme to increase the store’s profitability by selling untaxed diesel fuel to the unsuspecting motoring public. Leaving aside issues of whether the chancery court, as a court of equity, will lend its assistance to the enforcement of agreements to carry out improper or illegal activities (see Martin v. Estate of Martin, 599 So.2d 966, 968 (Miss.1992)), the chancellor was left with the fundamental question of whether he found Aron’s evidence more credible than that produced by Reid.

¶24. The chancellor specifically concluded that Aron’s evidence was not credible and, on that basis, denied his claim to an ownership interest in the business enterprise. That determination of the proper resolution of sharply contrasting versions of the facts by the chancellor is entitled to substantial deference by this Court when reviewing the matter on appeal. Madden v. Rhodes, 626 So.2d 608, 616 (Miss.1993). As in our review of the evidence relating to the quitclaim deed’s validity, we do not find Aron’s evidence so compelling nor do we find Reid’s contradictory evidence so unworthy of belief as to lead us to the conclusion that the chancellor abused his discretion in resolving the dispute in Reid’s favor.

¶ 25. For that reason, we find nothing in the claims regarding Aron’s purported ownership interest that would require us to disturb the chancellor’s findings.

¶26. Aron’s separate issue claiming that Reid was holding his share of the profits in an alleged constructive trust for Aron’s benefit depends for its vitality on the threshold determination that Aron did, in fact, have some legal or equitable ownership interest in the business. Since that question was decided against Aron by the chancellor-a decision which we have upheld-his arguments regarding an alleged constructive trust are plainly without any independent merit.

¶ 27. THE JUDGMENT OF THE CHANCERY COURT OF CALHOUN COUNTY IS AFFIRMED ON DIRECT AND CROSS APPEALS. COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: LEE, J., for the court.

license: Public Domain

text:
    MISSISSIPPI DEPARTMENT OF TRANSPORTATION, Appellant, v. Frances M. MOYE, Appellee.
    No. 2001-WC-01120-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.

      Susan Lum Runnels, Jackson, attorney for appellant.
    William L. Ducker, Purvis, attorney for appellee.
    Before McMILLIN, C.J., LEE, and BRANTLEY, JJ.
   LEE, J., for the court.

PROCEDURAL HISTORY

¶ 1. This is a worker’s compensation case. Frances Moye, the claimant, filed a petition to controvert, and the administrative law judge denied her claim. The Full Commission affirmed the denial of benefits. The Forrest County Circuit Court, however, reversed both the Commission and the administrative law judge, finding the claimant was entitled to temporary total disability benefits. The employer now appeals to this Court asking that we reinstate the Commission’s order, since Moye failed to meet her burden of proving a connection between her employment and her alleged disability. We review the arguments presented and reverse the circuit court and reinstate the decision of the Full Commission denying benefits.

FACTS

¶2. From 1984 through 1998, Francis Moye was employed in Hattiesburg by the Mississippi Department of Transportation where she worked in the fiscal management department paying local delivery orders. On or about June 17, 1998, Moye was working in the mail room after lunch. After complaining of dizziness, Moye passed out and was taken by ambulance to the hospital. She was diagnosed with high blood pressure, and the doctor later determined she had suffered a nervous breakdown. In November 1998 after taking a five-month leave of absence from her work, Moye submitted her resignation to MDOT claiming she was unable to continue working due to health reasons.

DISCUSSION OF THE ISSUES

I. WAS THE COMMISSION’S DECISION SUPPORTED BY SUBSTANTIAL EVIDENCE SUCH THAT THE CIRCUIT COURT ERRED' IN REVERSING THE COMMISSION’S DECISION?

¶3. At the outset, we note our standard of review in workers’ compensation cases.

The Workers’ Compensation Commission sits as the “ultimate finder of facts” in deciding compensation cases, and therefore, “its findings are subject to normal, deferential standards upon review.” We hold that judicial review of findings of the Commission extends to a determination of whether they are clearly erroneous. And a finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.

Good Earth Dev., Inc. v. Rogers, 800 So.2d 1164 (¶ 4) (Miss.Ct.App.2001) (quoting J.R. Logging v. Halford, 765 So.2d 580 (¶¶ 12-13) (Miss.Ct.App.2000)). “ ‘[W]hile appeals to the Supreme Court are technically from the decision of the Circuit Court, the decision of the commission is that which is actually under review for all practical purposes.’ ” Walden Lumber Yard v. Miller, 742 So.2d 785(¶ 7) (Miss.Ct.App.1999).

¶ 4. The Commission’s order summarily affirmed the decision of the administrative law judge; thus, we look to the administrative law judge’s opinion for insight as to the Commission’s findings. At the hearing, Moye explained that she felt she was “treated differently” and left out of work activities perhaps due to her race, that she was not allowed to go to computer meetings that others attended, that she did not receive a computer until after others in her office received computers, that she did not get certain promotions she felt she deserved, that she felt pressured to quit her job, and that she was unable to cope with her increased job responsibilities. Moye claims that these specific incidents and the general environment in which she worked contributed to her mental breakdown and rendered her unable to perform her job.

¶ 5. In rebutting Moye’s claims, the administrative law judge noted Moye was passed over for the promotion because another worker had prior experience in the particular area while Moye did not. Concerning access to a computer, the administrative law judge noted the testimony of Phillip Coco, the human resources officer for the Hattiesburg district office of MDOT, that Moye did not receive a computer at the same time as others in her office because her particular job did not require the use of a computer. Concerning Moye’s perceived isolation, although she contends she was “left out” of activities including computer training, Moye admitted on cross-examination that she was indeed invited to attend class, but she got really nervous and began to cry when she realized she knew very little about using a computer, and she voluntarily left the class. Moye claimed she felt pressured to quit her job, and she testified that the increased workload put upon her was evidence that she was being forced into quitting; however, she also testified that all the other workers had increased workloads, as well, and they all agreed to the added responsibilities.

¶ 6. The administrative law judge also reviewed medical records from Moye’s doctors. Medical records from Dr. Michael May, a family practitioner, show that he diagnosed Moye with various ailments from February 1996 through October 1998 ranging from depression and anxiety to irritable bowel syndrome. Dr. May saw Moye in the years prior to her fainting spell in May 1998, but the records submitted at the hearing only date back to May 1996. From that time forward, Moye had complained to him of stress-related symptoms and other ailments, and he diagnosed her at various times with possible thyroid disease, possible menopausal symptoms, possible heart problems, irritable bowel syndrome, tension headaches, probable muscular and abdominal strain, possible viral syndrome, malignant hypertension, neck and back pain and nausea. Dr. May prescribed numerous drugs to treat these ailments, but he never made any medical conclusions about Moye’s illnesses being related to her work. Dr. Thomas Welch, a psychiatrist, evaluated Moye in August 1998 and noted Moye would hear bells and buzzers and voices that no one else could hear, and that she sensed presences which she thought were evil spirits. He diagnosed her with depression and with having psychotic episodes. Dr. Welch’s records do not contain any conclusions that Moye’s ailments were related to her work. In fact, he notes more than once in his progress notes that Moye related that financial factors were contributing to her anxiety.

¶ 7. The administrative law judge noted that with work-related mental injuries, a claimant must prove by clear and convincing evidence that the employment and injury are connected. Smith & Sanders, Inc. v. Peery, 473 So.2d 423, 425 (Miss.1985). The administrative law judge also thoroughly reviewed the supreme court’s history of “mental” worker’s compensation cases. See Bates v. Countrybrook Living Ctr. 609 So.2d 1247 (Miss.1992); Borden, Inc., v. Eskridge, 604 So.2d 1071 (Miss.1991); Fought v. Stuart C. Irby Co., 523 So.2d 314 (Miss.1988); Brown & Root Constr. Co. v. Duckworth, 475 So.2d 813 (Miss.1985). In review of lay and expert testimony and considering documentary evidence presented and applicable law, the administrative law judge found that Moye failed to prove by clear and convincing evidence that a connection existed between her work and her psychological infirmity: “Although Ms. Moye testified to various ‘feelings’ that she has experienced as a result of job-related activities, the activities that she described can be characterized as ordinary incidents of employment and no more.” The medical evidence showed that Moye did suffer mental injuries, however, since no causal link was shown to connect the injuries to her work, the administrative law judge found Moye was not entitled to receive benefits.

¶ 8. The Forrest County Circuit Court disagreed with the findings and conclusions of the administrative law judge and the Full Commission. The trial judge stated in his opinion that with Moye’s medical history, her passing out on the job was indeed a traumatic event which, by virtue of the evidence presented, undeniably showed a work-related stress injury had occurred. The trial judge stated:

This court finds that this was a work stress related illness and can be linked to the untoward and unusual occurrences as testified to by the Claimant in the MDOT office in Hattiesburg, Mississippi. While the court makes no specific findings that the Claimant was “picked on” because of race as her testimony relates, it was established by the testimony of Mr. Nick Walters, fiscal administrator of the Hattiesburg district office, that with the added additional responsibilities to his department, which included extra tasks being assigned to the Claimant, he observed her becoming more anxious and upset.

The court found that Moye should have received temporary total disability benefits from the date of her injury in June 1998 to the date of her resignation in November 1998.

¶ 9. On appeal, MDOT points out that, other than the fainting incident, Moye suffered no job-related accident, physical trauma or physical injury, and fainting on the job could be caused by many factors unrelated to one’s job, including lack of sleep, high blood pressure, gastrointestinal problems, and exhaustion, among other things. In her testimony at the hearing, Moye recalled the day of her fainting incident, stating that she had a stressful morning that day, went to lunch, returned to her work knowing her blood pressure was elevated, but she did not know she was “stressed out.” The Commission did not have records from the hospital regarding that incident, though, nor do we have those records before us, which could show the treating physician’s diagnoses about the cause of the fainting episode. The question to be answered is not whether Moye provided enough evidence to support her claim, but rather whether there is substantial evidence in the record to support the Commission’s findings. See Smith v. City of Jackson, 792 So.2d 335(¶10) (Miss.Ct.App.2001). Without appropriate records, the Commission had no choice but to find that unsubstantial evidence existed to link Moye’s fainting spell and other ailments to her work.

A mental injury must be caused by some unusual occurrence or untoward event in order to be compensable. Stated differently, “our law does not compensate disability attendant upon the general stress or normal human wear and tear of the workplace. Where, however, an employee experiences a series of unidentifiable and extraordinary stressful work connected incidents, benefits may be available.”

Smith, 792 So.2d at (¶ 9) (citations omitted). Moye did not show that an unusual occurrence or untoward event caused her mental injuries. Accordingly, we find that the trial court erred in reversing the Commission when sufficient evidence was presented in support of the Commission’s decision. Thus, we reverse the circuit court’s holding and reinstate the decision of the Commission.

¶10. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS REVERSED AND THE ORDER OF THE WORKERS’ COMPENSATION COMMISSION IS HEREBY REINSTATED. COSTS OF THIS APPEAL ARE TAXED TO THE APPELLEE.

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


author: IRVING, J., for the court.

text:
    Betty MOONEYHAN, Appellant, v. BOYD TUNICA, INC. d/b/a Sam's Town Hotel and Gambling Hall, A Self Insured, Appellee.
    No. 1999-WC-01671-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.

      B. Sean Akins, Ripley, attorney for appellant.
    Chad J. Hammons, Jackson, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.
   IRVING, J., for the court.

¶ 1. Betty Mooneyhan appeals from a judgment of the Circuit Court of Tunica County affirming a decision of the Full Commission of the Mississippi Workers’ Compensation Commission denying compensation benefits to her. In this appeal, Mooneyhan assigns error to the Commission’s finding that the automobile accident, which caused her injuries, did not arise out of the scope and course of her employment with Boyd, Inc. d/b/a Sam’s Town Hotel and Gambling Hall.

¶2. We reject Mooneyhan’s argument and affirm the judgment of the circuit court.

FACTS

¶ 3. On January 2, 1995, Mooneyhan was leaving work at Sam’s Town Casino in Tunica where she was employed as a card dealer. Just as she exited the parking lot of Sam’s Town’s premises to enter Highway 304, a four-lane paved public highway also known as Commerce Road, Mooney-han was struck by an oncoming car. As a result of the accident, she suffered some personal injuries, the nature and extent of which are not relevant to the issue before us.

¶ 4. Mooneyhan filed a petition to controvert claiming that the accident and injuries arose out of the course and scope of her employment. The parties agreed to bifurcate the hearing and allow the administrative law judge to determine the issue of compensability based solely on the briefs and the stipulated facts.

¶ 5. Pursuant to the stipulated facts, the administrative law judge denied Mooney-han’s claim and concluded that:

Ms. Mooneyhan left the zone of employment risk when she pulled out of the Sam’s Town parking lot. There were no special hazards on that part of Highway 304, or Commerce Road, and Ms. Moo-neyhan was in no more danger of accident than any other human being driving a vehicle on that part of the road— tourist or patron or employee of several different businesses. Her accident and resulting injury, while regrettable, are not compensable under the Mississippi Workers’ Compensation Act, and the employer is .not liable for workers’ compensation benefits.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Mooneyhan avers that she was forced to travel out of Sam’s Town’s parking lot and turn left to cross two lanes of traffic. Mooneyhan also argues that her facts fall within the special hazards exception to the “going and coming” rule. Moo-neyhan further contends that Highway 304 is the sole access road to her place of employment and that it is dangerous because of the high volume of traffic going to and from the casino. In addition, Mooney-han argues that the danger was enhanced by the higher than usual volume of traffic during the holiday season when her accident occurred.

¶ 7. As a reviewing court, we entertain appeals to determine whether or not the order of the administrative agency “was unsupported by substantial evidence, was arbitrary or capricious, was beyond the power of the administrative agency to make, or violated some statutory or constitutional right of the complaining party. These are the only grounds for overturning an agency action; otherwise, the agency’s determination must remain undisturbed.” Mississippi Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993).

¶ 8. Quoting from Miller Transporters v. Seay’s Dependents, 350 So.2d 689 (Miss.1977), the Mississippi Supreme Court, in Stepney v. Ingalls Shipbuilding Division, Litton Systems, Inc., 416 So.2d 963 (Miss.1982), stated the general rule with reference to going to and returning from work as follows:

[T]he general rule [is] that the hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compen-sable.

Id. at 964.

¶ 9. However, there are exceptions to the general rule. Those exceptions were also set out in Stepney as follows:

(1) where the employer furnishes the means of transportation, or remunerates the employee; or (2) where the employee performs some duty in connection with his employment at home; or (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or (4) where the employer furnishes a hazardous route; or (5) where the injury results from a hazardous parking lot furnished by the employer; or (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises.

Id. (quoting Wallace v. Copiah County Lumber Co., 223 Miss. 90, 99, 77 So.2d 316, 318 (1955)). An employee who claims an exception to the general rule must prove that he comes within one of the exceptions. Aetna Fin. Co. v. Bourgoin, 252 Miss. 852, 858, 174 So.2d 495, 497 (1965).

■ ¶ 10. Mooneyhan’s argument that the accident arose out of or in the scope of her employment fails because her facts do not fit any of the exceptions. The parties stipulated that Mooneyhan was driving her own vehicle, that Sam’s Town provided neither transportation for her to and from work nor compensated her for transportation expenses related to travel to or from work, and that the accident did not occur on Sam’s Town’s premises.

¶ 11. Since the stipulated facts rule out the applicability of exceptions one, two, and five, we direct our analysis to the third, fourth, and sixth exception. Moo-neyhan was not injured due to any hazard or condition inherently dangerous along Highway 304, the route utilized by her to travel to and from her employer’s premises. The accident report shows that Moo-neyhan was taking a right-hand turn from the employees’ parking lot on the access road which is a four lane divided public highway. However, Mooneyhan argues that contrary to the accident report, she was initiating a left turn. Whether Moo-neyhan was turning left or right is of no consequence because Mooneyhan was not exposed to a greater hazard than the general public. Wallace, 223 Miss. at 102, 77 So.2d at 319. Sam’s Town did not furnish a hazardous route. Highway 304 is owned by Tunica County and utilized not only by employees of Sam’s Town, but also by patrons of the three casinos located on that road as well as the general public at large. Finally, although Highway 304 is in close proximity to Sam’s Town’s premises, Mooneyhan introduced no evidence showing that entering or driving on Highway 304 was inherently dangerous or hazardous, nor was any evidence introduced showing a repetitive history of auto accidents, serious or minor. For the reasons stated, this assignment of error lacks merit; therefore, we affirm the judgment of the circuit court.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Jimmy Earl LANE, Appellant, v. Dixie Carole LANE, Appellee.
    No. 2000-CA-01554-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.

      Erika Danita Suttlar, Southaven, attorney for appellant.
    William R. Striebeck, Greenville, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES; ■ and IRVING, JJ. ’
   IRVING, J., for the court.

¶ 1. Jimmy Earl Lane was held in contempt by the Chancery Court of Washington County for failing to pay child support. Additionally, the chancellor determined the arrearage to be $17,150 and entered judgment against him for this amount. He was ordered to pay $5,000 within ninety days or report to jail. Lane has appealed and raises several issues in a convoluted manner. For purposes of our analysis and discussion, we have found it necessary to recast the array of issues into four categories as follows: (1) whether the alimony awarded in the divorce decree was periodic, (2) whether the chancellor’s 1998 decision — that Jimmy voluntarily terminated his employment — was manifestly wrong, (3) whether the chancellor’s 1998 decision — that the emancipation of two of the parties’ children — did not warrant a reduction in Jimmy’s child support obligations, and (4) whether the chancellor manifestly erred in finding Jimmy in contempt and in dismissing, pursuant to the doctrine of unclean hands, his petition for modification.

FACTS

¶2. Jimmy and Dixie Lane were divorced June 6, 1988; three children, Heather, Kristie, and Anissa, were born to the marriage. In 1988, Heather was six, Kristie was seventeen, and Anissa was twenty. The final decree ordered Jimmy to pay $400 a month in alimony. In addition, Dixie received full custody of Anissa and Heather; Jimmy received full custody of Kristie. Jimmy was ordered to pay $224 a month per child with a total of $448 a month for child support. Also, upon Anissa’s emancipation, Jimmy would pay $400 a month in child support for Heather. Each party was awarded an automobile and Dixie was given the marital home with the responsibility of assuming all payments including taxes. Jimmy was obligated to pay medical, dental, visual, orthodontic, and drug expenses reasonably incurred by the children.

¶ 3. In 1998, Jimmy filed a motion to modify child support and alimony, alleging that he was forced to take an early retirement which caused a reduction of his income. This motion was dismissed on the court’s finding that Jimmy voluntarily accepted early retirement thereby reducing his income. In September of 1999, Jimmy was found in contempt for failure to pay child support and alimony arrearage.

¶ 4. In November of 1999, Jimmy filed a petition to suspend and/or modify child support and alimony, waive arrearage, and set aside a contempt order. Dixie objected and responded to the petition with affirmative defenses. In September 2000, the court entered an order of contempt citing Jimmy’s failure to pay a $9,350 judgment of past due child support and alimony rendered in September of 1999. Following the September 1999 judgment, Jimmy, without order of the court, discontinued alimony payments and reduced his child support payments to $150 a month. The arrearage caused by this unilateral reduction in payments amounted to $7, 800, and the chancellor also found him in contempt for failing to pay this amount. As a result, the chancellor rendered a total judgment against Jimmy in the amount of $17,150 and ordered him to pay $5,000 of that amount within ninety days or go to jail. Also, the chancellor determined that Jimmy came into court with unclean hands and refused to consider his November 1999 petition for modification. It is from this September 2000 order that Jimmy prosecutes this appeal.

ANALYSIS AND DISCUSSION OF ISSUES

1. Nature of the Alimony

¶ 5. Jimmy contends that the alimony which was awarded in the final decree is periodic alimony, subject to modification. Dixie concedes as much. Periodic alimony is for an indefinite period vesting as it comes due and is modifiable. Hubbard v. Hubbard, 656 So.2d 124, 130 (Miss.1995). The portion of the final decree referring to alimony stated, “[hjusband agrees to pay to wife the sum of $400 per month as alimony, which payments shall commence February 1, 1988 and continue thereafter on the first day of each month.” Since Dixie concedes the nature of the alimony, there is no need for us to address this issue any further.

2. Nature of the Termination of Jimmy’s Employment and the Reduction in Child Support Obligations because of the Emancipation of One of the Children of the Parties

¶ 6. The matter of the circumstances surrounding and the nature of the termination of Jimmy’s employment, as well as the question of whether Jimmy should receive a reduction of his child support obligation because of the emancipation of one of the children, were the subject of Jimmy’s 1998 motion for modification. The chancellor ruled adversely to Jimmy on both of these matters, and Jimmy did not appeal. Consequently, those matters are res judicata, and Jimmy is procedurally barred from raising them in this appeal. It is well recognized that appeals not perfected within thirty days will be dismissed. Matter of Estate of Ware, 573 So.2d 773, 775 (Miss.1990). Thus, Jimmy is precluded from raising those issues now.

3. Adjudication of Contempt and Refusal to Consider Jimmy’s Petition for Modification

¶ 7. In reviewing a decision by a chancellor, this Court will uphold findings of fact as long as the record reflects that they are supported by substantial, credible evidence. Caldwell v. Caldwell, 579 So.2d 543, 547 (Miss.1991). More importantly, issues of alimony and child support are discretionary, and this Court will not reverse absent a finding that the chancellor abused his discretion or was manifestly in error. Gregg v. Montgomery, 587 So.2d 928, 931. (Miss.1991).

¶ 8. The chancellor found that Jimmy had failed to pay the $9,350 judgment rendered against him in September 1999, for accrued support and alimony obligations. Also, the court found that he had discontinued alimony and reduced child support payments which resulted in an arrearage of $7,800. The proof is uncon-tradicted that Jimmy had failed to pay these amounts. His defense was that he was unable to pay because he had suffered a reduction in income.

¶ 9. Further, Jimmy asserts that he had made good faith efforts to uphold his monthly obligations despite his reduction in income to $852 per month. He failed to show with particularity that he was earning all he could, that he lived economically, and paid all surplus money above living expenses to Dixie and Heather. During the hearing, he spoke of his present wife’s ailments and his surgeries as factors which required him to accept early retirement. Yet, he did not provide proof with particularity of these surgeries, his wife’s sickness, nor testimony of how these factors have hindered him from earning all he could. Regardless, Jimmy’s financial obligation to Dixie is paramount to the financial obligations he has as a result of his second marriage.

¶ 10. Moreover, Jimmy did not show that he earned all he could. There was no proof that he had searched for other employment within his town which would supplement his retirement and enable him to pay alimony and child support. Also, Jimmy had purchased a new Dodge pickup truck during the time he was claiming an inability to pay his alimony and child support. Seemingly, he used his surplus from expenses to pay himself instead of Dixie and Heather. Thus, absent Jimmy’s showing with particularity that he was earning all that he could, that he lived economically, and paid all surplus to Dixie, we find that the chancellor did not abuse her discretion in determining that Jimmy was in contempt for failing to pay the September 1999 judgment as well as the amounts which came due and payable thereafter. He cannot claim the benefit of a reduction in income because he did not appeal from the chancellor’s decision in 1998 that he voluntarily caused a reduction in his income. The record substantially supports the chancellor’s decision; therefore, we affirm her finding of contempt.

¶ 11. As stated, the chancellor refused to consider Jimmy’s latest motion for modification because she found he had unclean hands. Of course, Jimmy argues that he does not have unclean hands because he first sought a modification of his support obligations back in 1998 after suffering a reduction in income. According to Jimmy, his actions then, which predate his current motion for modification, show that he acted with reasonable promptitude in alerting the court to his inability to pay. The principle of “unclean hands” dictates that “he who comes into equity must come with clean hands.” Thigpen v. Kennedy, 238 So.2d 744, 746 (Miss.1970). In O’Neill v. O’Neill, 551 So.2d 228, 233 (Miss.1989), the meaning of this principle was expounded on: “[t]he meaning of this maxim is to declare that no person as a complaining party can have the aid of a court of equity when his conduct with respect to the transaction in question has been characterized by wilful inequity....” The court may apply this’ doctrine sua sponte where it is shown applicable. Brennan v. Brennan, 605 So.2d 749, 752 (Miss.1992).

¶ 12. Jimmy contends that the “unclean hands” doctrine prevents a payor from obtaining a modification if he is in arrears, unless a payor proves his inability to pay. For this reason, Jimmy claims that the doctrine of “unclean hands” .does not apply to him because he has shown an inability to pay by filing petitions to modify from 1995 until 2000. In Hooker v. Hooker, 205 So.2d 276, 278 (Miss.1967), the court prescribed that “a husband may not petition for modification of the original decree without a showing either that he has performed it or that his performance has been wholly impossible.” The supreme court has recognized that this showing must be done in “particular and not general terms.” Gregg v. Montgomery, 587 So.2d 928, 932 (Miss.1991). A husband is required to show what his earnings, his living expenses, and who his dependents are. Kincaid v. Kincaid, 213 Miss. 451, 456, 57 So.2d 263, 265 (1952). Yet, “the payment of other debts or expenses will not excuse or justify his default, unless such payment was necessary in order to continue his business or occupation, because his wife’s right to alimony is a prior and paramount claim on his earnings.” Gregg, 587 So.2d at 932. Moreover, if a husband wishes to prove an inability to pay, his evidence must show “that he earned all he could, that he lived economically, and paid all surplus money above a living on the alimony decreed to his wife.” Kincaid, 213 Miss. at 456, 57 So.2d at 265. Jimmy fails to meet this standard. Therefore, we affirm the chancellor’s finding that Jimmy came into court with unclean hands.

¶ 13. Having determined that Jimmy came into court with unclean hands, we now look to see if he left with unclean hands so as to prevent any modification of his support obligations until he had paid all arrearage. Jimmy avers that a change in his alimony and child support payments are warranted because compliance would impose a poverty level of living. Also, he contends that his reduction in income, his poor health, and his wife’s failing health were material and/or substantial changes in the circumstances which warrant modification of his alimony and child support obligation. Additionally, Jimmy notes that in 1995 the court failed to consider Dixie’s additional income and other factors which presented a material change in circumstances. The portion of Jimmy’s argument concerning the 1995 hearing will not be addressed because he is precluded from raising that issue in this appeal due to his failure to appeal the chancellor’s ruling at that time.

¶ 14. Jimmy properly advances that the chancellor has the power to reduce his alimony and child support when there has been a subsequent and substantial change in circumstances. Gregg, 587 So.2d at 988. However, under these circumstances, Jimmy’s hardships are secondary since the chancellor determined that he entered a court of equity with unclean hands. Jimmy’s entering with unclean hands does not dictate the conclusion that he left with unclean hands. The chancellor’s final order incorporated the court’s previous ruling and findings of fact. The entering of this order had the effect of cleansing Jimmy’s hands. See Brennan v. Brennan, 605 So.2d 749, 753 (Miss.1992). Therefore, we affirm the judgment of the lower court but hold that the entry of the final judgment cleansed Jimmy’s hands and revived the matter of modification. We remand .to the lower court for that purpose. On remand, if a modification is granted, it will only be retroactive to the date of the judgment from which this appeal was taken. This Court cannot eviscerate the “bedrock” principle that neither child support nor alimony arrearage can be forgiven. Williams v. Rembert, 654 So.2d 26, 29 (Miss.1995). Thus, we are not at liberty to modify child support retroactively because that would be the equivalent of forgiving Jimmy’s obligations. For the reasons stated above, we find that this argument lacks merit, and we affirm the $17,150 judgment rendered against Jimmy as well as the chancellor’s finding of-contempt. However, the issue of modification is remanded for further action.

¶ 15. THE JUDGMENT OF THE CHANCERY COURT OF WASHINGTON COUNTY IS AFFIRMED AND REMANDED ON THE ISSUE OF MODIFICATION. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Prior to 1998, several orders for contempt were entered against Jimmy for violating the final decree. As a result, Jimmy was ordered to pay child support and alimony arrearage.

      . Jimmy filed an Answer to Motion for Citation for Contempt and Counterclaim for Modification in 1995 and stated that Dixie had an increase in income from employment and that she had sold her home and received a large amount of equity from it.