author: GRIFFIS, J.,

text:
    Willie B. JONES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01528-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2003.
    Rehearing Denied March 30, 2004.

      Bennie L. Jones, West Point, attorney for appellant.

      Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Willie B. Jones appeals his conviction for the crime of embezzlement. On appeal, Jones asserts that the trial court erred in denying his motion for directed verdict, in denying the motion for new trial, in not giving a cautionary instruction to the jury, and in removing a juror.

FACTS

¶ 2. Derrick Leslie was employed by Johnny Johnson’s Furniture Store, located in Rienzi. On December 8, 2000, Leslie drove to Johnston Tombigbee Furniture Manufacturing Company (Johnston Tom-bigbee), located in Columbus, to pick up furniture ordered by Johnny Johnson.

¶ 3. When he arrived at Johnston Tom-bigbee, Leslie drove his truck to the loading dock where he encountered Willie B. Jones. Jones was a supervisor of the loading dock at Johnston Tombigbee. Jones instructed certain Johnston Tombigbee employees to load the ordered furniture on the truck Leslie was driving.

¶ 4. At trial, Leslie testified that when he arrived at the Johnston Tombigbee loading dock, he asked Jones for some additional furniture and that Jones sold him a twenty-five hundred series bedroom set, an $800 value, for $200 in cash. Leslie testified that he placed two one hundred dollar bills in Jones’s pocket, and Jones then loaded the furniture onto Leslie’s truck.

¶ 5. Lee Roy Scott, the security guard, testified that he stopped Leslie at the gate and inspected the truck. Scott testified that he found that seven items of furniture were not properly tagged.

¶ 6. Marion Gillis, the Johnston Tombig-bee plant manager, testified that he was called to the gate by Scott and that there were seven pieces on Leslie’s truck that were not purchased by Johnny Johnson’s Furniture Store and were not authorized to leave Johnston Tombigbee. Gillis sent the truck back to the dock. He retrieved the appropriate paperwork and after examining the paperwork and the furniture in question, Gillis confirmed that the twenty-five hundred series bedroom set, consisting of seven pieces, was unauthorized and should not have been on Leslie’s truck.

¶ 7. Officer Wayne McLemore, of the Columbus Police Department, testified that he found four one hundred dollar bills on Jones after the incident. The money was copied, and the photocopy of the cash was then entered into evidence.

¶ 8. Tony Colvin testified that Jones was the only other employee present at the time Leslie’s truck was loaded. Colvin testified that he was called away soon after loading the authorized furniture. Colvin also testified that Jones was the only person who had authority to go into the warehouse and retrieve furniture on his own. However, Colvin could not testify that he saw Jones receive any money from Leslie or that he saw Jones place the unauthorized furniture on the truck. Colvin did not see Leslie load any furniture onto the truck.

¶ 9. Laderriel Hunter testified that two individuals, Charles Montgomery and Col-vin, assisted Jones in loading Leslie’s truck. He further testified that Montgomery was the forklift driver and that Jones authorized the forklift operator to retrieve the furniture from the warehouse. Hunter also testified that it is not possible that an entire bedroom set could accidentally be loaded onto a truck.

¶ 10. Montgomery testified that he never knew Jones to load furniture that was not authorized. He further testified that he helped Jones and Colvin that day and that he did not specifically recall bringing a twenty-five hundred series bedroom set from the warehouse to Leslie’s truck.

¶ 11. Jones testified and denied the accusations.

¶ 12. After deliberations, the jury returned a verdict finding Jones guilty of the crime of embezzlement. The Circuit Court of Lowndes County sentenced Jones to three years in the custody of the Mississippi Department of Corrections and three years of post-release supervision.

LEGAL, ANALYSIS

1. Whether the trial court erred in denying Jones’s motion for directed verdict.

¶ IS. Jones attacks the sufficiency of the State’s evidence alleging that the only proof of the elements of guilt is the testimony of Derrick Leslie. A request for a directed verdict implicates the sufficiency of the evidence. Our standard of review on the question of the legal sufficiency of the evidence is clearly defined. In Manning v. State, 735 So.2d 323, 333 (¶ 10) (Miss.1999), the Mississippi Supreme Court held:

When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury’s verdict is quite limited. We proceed by considering all of the evidence — not just that supporting the case for the prosecution — in the light most consistent with the verdict. We give [the] prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.

¶ 14. We begin our consideration with the statutory language defining the crime of embezzlement. Mississippi Code Annotated Section 97-23-19 (Rev.2000) provides:

If any director, agent, clerk, servant, or officer of any incorporated company ... shall embezzle or fraudulently secrete, conceal, or convert to his own use, or make way with, or secrete with intent to embezzle or convert to his own use, any goods, rights in action, money, or other valuable security, effects, or property of any kind or description which shall have come or been intrusted to his care or possession by virtue of his ... employment, either in mass or otherwise, he shall be guilty of felony embezzlement.

¶ 15. The jury is the sole judge of the weight and worth of testimony. Brown v. State, 726 So.2d 248, 250(¶8) (Miss.Ct.App.1998). The jury may draw any reasonable inferences from the evidence. Tolbert v. State, 407 So.2d 815, 820 (Miss.1981). We look to the evidence that was considered by the jury and to what inferences could have been drawn by the jury. Here, we find that there was sufficient evidence for the jury to find that Jones made an unauthorized sale of furniture, owned by Johnston Tombigbee, to Leslie and kept the money for himself, thereby converting Johnston Tombigbee’s property for his own use.

¶ 16. An examination of the record reveals that Leslie testified that Jones sold him a twenty-five hundred series bedroom set for $200. Leslie further testified that he placed two one hundred dollar bills in Jones’s pocket, and Jones then loaded the furniture onto Leslie’s truck. Lee Roy Scott, the security guard, testified that he stopped Leslie from leaving the facility and inspected the truck. He found that seven items of furniture were not properly tagged. Marion Gillis, the plant manager, testified that he confirmed that there was an unauthorized extra twenty-five hundred series bedroom set, consisting of seven pieces, on Leslie’s truck. Officer Wayne McLemore of the Columbus Police Department testified that he found four one hundred dollar bills on Jones after the incident.

¶ 17. The uncorroborated testimony of an accomplice is sufficient to sustain a conviction. Finley v. State, 725 So.2d 226, 236(¶ 38) (Miss.1998); Holly v. State, 671 So.2d 32, 40 (Miss.1996). Where there is slight corroborative evidence, the accomplice’s testimony is likewise sufficient to sustain a verdict. Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995). This general rule is inapplicable only where the accomplice testimony is unreasonable, self contradictory or substantially impeached. Id.

¶ 18. Jones argues that Leslie’s testimony at trial contradicted his statement to police concerning his intentions for the purchased furniture, therefore rendering his testimony self-contradictory. Upon review of the record, Leslie stated to police on the day in question that he was going to deliver the bedroom set to Anita James and that after the incident he called her and told her that, “I didn’t do no good.” At trial, Leslie testified that he did not know a lady named Anita James. Although, Leslie’s statements to police concerning the destination of the purchased furniture contradicts Leslie’s testimony at trial, we find that this contradiction has no relationship to his testimony concerning Jones’s participation in the crime. It certainly does not contradict his testimony about where and how he obtained the furniture.

¶ 19. Following the appropriate standard, we find that the testimony of Leslie concerning Jones’s participation in the crime was not unreasonable, self-contradictory or substantially impeached. In fact, there was testimony that corroborated the facts as described by Leslie. An unauthorized twenty-five hundred series furniture set was on Leslie’s truck and four hundred dollar bills were found on Jones’s person, two of which the jury could have reasonably inferred were from Leslie. Consequently, there was evidence in the record which was sufficient to support the verdict of the jury. Thus, we find that this assignment of error is without merit.

2. Whether the trial court erred in denying Jones’s motion for a new trial.

¶ 20. Jones asserts that the court erred in denying his motion for new trial because the verdict was against the overwhelming weight of the evidence. Jones specifically claims that no evidence was presented that his fingerprints were found on the furniture allegedly stolen by him and that no evidence was presented that Leslie’s fingerprints were found on the money allegedly given to Jones by Leslie for the stolen furniture. The Mississippi Supreme Court established the following standard of review:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. As such, if the verdict is against the overwhelming weight of the evidence, then a new trial is proper.

Baker v. State, 802 So.2d 77, 81(¶ 14) (Miss.2001) (quoting Dudley v. State, 719 So.2d 180, 182 (¶ 8) (Miss.1998)).

¶ 21. As stated above, there was sufficient evidence presented to support the verdict. The Mississippi Supreme Court has held that “the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, 991 (Miss.1987). Accepting as true all evidence favorable to the State, this Court is compelled to conclude that the evidence was of such weight to support the jury’s findings. We do not find that the evidence in favor of the defendant was overwhelmingly contrary to the verdict. Therefore, we find this assignment of error to be without merit.

3. Whether the court erred in not giving a cautionary instruction

¶ 22. Jones next contends that the trial court erred in failing to instruct the jury that the testimony of accomplice Derrick Leslie should be considered with great caution. Jones offers the following:

Accomplice testimony is traditionally viewed with great caution and suspicion. Ellis v. State, 790 So.2d 813, 816 (¶ 8)(Miss.2001) citing Derden v. State, 522 So.2d 752, 754 (Miss.1988). If the evidence admits a reasonable inference that the witness may have been a co-perpetrator or the sole perpetrator, the cautionary instruction should be given. Williams v. State, 729 So.2d 1181, 1188 (¶ 31)(Miss.1998). A cautionary instruction is warranted when the testimony of an accomplice is “unreasonable, self contradictory or substantially impeached.” Ballenger v. State, 667 So.2d 1242, 1253 (Miss.1995). Although, it is in the judge’s discretion to award a cautionary instruction, this court has stated that a judge abuses that discretion when the State’s evidence rests solely upon the testimony of an accomplice and there is some question as to the reasonableness and consistency of the testimony, or the defendant’s guilt is not clearly proven. Green v. State, 456 So.2d 757, 758 (Miss.1984). Two of the aspects in determining whether or not the discretion has been abused are (1) was the witness in fact an accomplice, and (2) was his testimony without corroboration. Derden, 522 So.2d at 754.

¶ 23. The State asserts that this issue is procedurally barred because Jones did not request such an instruction. Upon review, we find no request for a cautionary instruction. Additionally, absent from the record is a request to instruct the jury as to the weight of Leslie’s testimony.

¶ 24. “The case law does not impose upon a trial court a duty to instruct the jury sua sponte, nor is a court required to suggest instructions in addition to those which the parties tender.” Wansley v. State, 734 So.2d 193, 198 (¶20) (Miss.Ct.App.1999). In Wansley v. State, Wansley argued that the trial court erred in failing to instruct the jury that the testimony of an accomplice should be weighed with great caution. This Court found the issue to be procedurally barred because Wansley’s defense counsel did not request that the trial judge grant such an instruction. Id. at (¶ 20).

¶ 25. Furthermore, in Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995), the appellant complained that the trial judge erred by refusing to grant a particular instruction. While a copy of this particular instruction was included in the record, it bore no evidence that it had been filed or that the appellant’s counsel had asked the trial court to consider it at all. Id. The Mississippi Supreme Court declined to find any error and explained:

Although D-22 is found in the court papers it is not marked in any fashion as being refused, given or withdrawn. There is no mention of D-22 in the transcript. Counsel did not draw it to the attention of the trial court during the discussion of jury instructions nor in Ballenger’s motion for new trial. It is the appellant’s duty to make sure a claimed error is properly preserved on record. This failure to make a sufficient record concerning instruction D-22 precludes Ballenger from complaining now that the instruction was not given.

Id. (citations omitted). In the present case, the defense did not offer or request an accomplice instruction. Accordingly, this issue is procedurally barred.

I. Whether the court erred in dismissing one of the jurors.

¶ 26. Jones’s final argument is that the circuit court erred when, during deliberations, the court dismissed a juror and substituted the alternate. Conversely, the State argues that the juror was dismissed well before the jury began its deliberations, this issue is procedurally barred, and that the dismissal and replacement of a juror with an alternate was within the trial court’s discretion. The State further contends that there was sufficient evidence in the record to support the court’s decision to excuse the juror.

¶ 27. Upon review, the record indeed reflects that Jones did not object to the juror’s dismissal and replacement. Jones argues that he was never given a chance to object to the dismissal of the juror. We disagree.

¶ 28. Prior to the State’s opportunity to rebut the defense’s case in chief, the instruction conference, and closing arguments, the bailiff informed the trial court that juror number nine, Mr. Richardson, stated that he could not be fair and impartial because he suddenly remembered that he recognized a witness who testified during trial. The trial court then questioned the juror and concluded:

Well, I think the Court is faced with a juror that stated to the Court in open Court after a witness has testified that he knew the witness, and that his knowledge of the witness influenced him and would influence him in this case. The Court has no choice. Thank you Mr. Richardson. I am going to discharge you from this jury and place the alternate in, in your place. You may go.

¶ 29. Jones had an opportunity to object to the dismissal of the juror at this time, but did not. The Mississippi Supreme Court has explained that “[o]ur law is clear that an appellant must present to us a record sufficient to show the occurrence of the error he asserts and also that the matter was properly presented to the trial court and timely preserved.” Lambert v. State, 574 So.2d 573, 577 (Miss.1990). Failure to object at trial waives the objection on appeal. Smith v. State, 797 So.2d 854, 856(¶ 7) (Miss.2001); Norman v. State, 302 So.2d 254, 259 (Miss.1974). We find that Jones failed to properly preserve this issue for appeal, and therefore, it is procedurally barred.

¶ 30. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF CONVICTION OF EMBEZZLEMENT AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, $1,000 FINE, AND THREE YEARS OF POST RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    The UNIVERSITY OF SOUTHERN MISSISSIPPI and Mississippi Institutions of Higher Learning, Self-Insured, Appellants, v. Dawn P. GILLIS, Appellee.
    No. 2002-WC-02038-COA.
    Court of Appeals of Mississippi.
    Dec. 16, 2003.
    Rehearing Denied Feb. 24, 2004.
    Certiorari Denied May 6, 2004.

      Joseph T. Wilkins, Jackson, attorney for appellants.
    Orvis A. Shiyou, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. This is a workers’ compensation case that comes before the Court on appeal from the Circuit Court of Forrest County. The claimant/appellee, Dawn Gillis, worked for the University of Southern Mississippi in the capacity of a counselor and teacher. Gillis suffers from lupus, Meniere’s disorder and allergic rhinitis. She contends that she was forced to quit her job because her medical conditions were aggravated by the work environment at USM. Gillis appealed the decision of the Workers’ Compensation Commission affirming the administrative law judge’s finding to deny compensation benefits. On November 14, 2001, the circuit court affirmed the order of the Commission but later reversed this order and entered a second order on July 2, 2002. In a third order, the circuit court vacated the two conflicting orders. On November 18, 2002, the circuit court entered a fourth and final order reversing the Full Commission’s decision that denied benefits to Gil-lis. The University of Southern Mississippi and Mississippi Institutions of Higher Learning (hereinafter USM) timely filed their appeal from this fourth and final order. USM in its appeal, cites the following two issues:

1. CAN THE CIRCUIT COURT OF FOREST COUNTY, MISSISSIPPI, ACTING IN ITS APPELLATE POWERS, RETAIN INFINITE JURISDICTION ON A MATTER IN WHICH A FINAL ORDER HAS BEEN ISSUED AND NO APPEAL HAS BEEN TAKEN BY THE AGGRIEVED PARTY WITHIN THE THIRTY DAY LIMITATION AFTER THE ISSUANCE OF THE FINAL ORDER PURSUANT TO MISSISSIPPI RULE OF APPELLATE PROCEDURE 4(A)?
2. THE COMMISSION IS THE FINDER OF FACTS AND IF SUPPORTED BY SUBSTANTIAL EVIDENCE, THE COMMISSION ORDER SHOULD BE UPHELD AND THIS COURT SHOULD REVERSE THE LOWER COURT AND REINSTATE THE UNANIMOUS COMMISSION ORDER BECAUSE THE CLAIM OF DAWN GILLIS IS TIME BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS.

¶ 2. We reverse the trial court’s holding and reinstate its initial order of November 14, 2001, affirming the Workers’ Compensation Commission.

FACTS

¶ 3. Gillis was employed at USM in the capacity of a counselor and teacher. Her duties included teaching classes, counseling students and administering college entrance exams. Gillis was approximately forty-seven years of age at the onset of her work related injury. Gillis suffers from lupus, allergic rhinitis, and Meniere’s disorder. Gillis contends she was forced to leave her job at USM due to work related stress and because cigarette smoke in the work place aggravated her medical conditions. USM adopted a policy on May 22, 1989, which prohibited smoking in indoor locations where smokers and non-smokers occupy the same area. Yet, Gillis contends the policy was ignored by many in her department.

¶ 4. In September of 1993, Gillis took a medical leave from her employment with USM. She applied for and was granted total disability benefits from the Social Security Administration and the Public Employees’ Retirement System. Gillis’ primary attending physicians are Dr. Robert McCary and Dr. Kurt Bruckmeier.

¶ 5. On December 27, 1991, Gillis sought treatment from Dr. Kurt Bruckmeier for her lupus. Gillis informed Dr. Bruckmeier that the disease was having an effect on her job performance in April 1992. She complained of feeling lightheaded and reported that her condition seemed to worsen with bad weather and stress. On June 10, 1993, Gillis informed Dr. Bruckmeier that stress from her job was causing skin lesions to break out on her body from the lupus.

¶ 6. On April 13, 1993, Gillis made an appointment to see Dr. Robert McCary because she was having problems keeping her balance. Dr. McCary diagnosed Gillis with Meniere’s disorder due to the ringing and popping in her ears. Meniere’s disorder occurs when there is increased pressure of the fluids of the inner ear due to a secondary lack of absorption. Dr. McCary recommended a series of allergy tests. The test results showed a positive allergic reaction to tobacco smoke. Dr. McCary opined that a smoke-filled work environment decreased Gillis’ ability to deal with her disease processes. Dr. McCary wrote letters to USM regarding the adverse medical effects the smoke-filled work environment was having on Gillis’ health.

¶ 7., On June 9, 1993, Joanne Stevens, dean of student services at USM, sent a letter to employees at the USM counseling center concerning their non-compliance with the university’s smoking policy. Stevens noted that until January 1, 1994, the counseling center would be a smoke free environment. After that time, smoking would be allowed in the counseling center provided each person would open the windows and close the doors when smoking in a room. Also, a draft protection device was to be placed between the offices of Gillis and the dean when anyone chose to smoke in his office. Gillis contends that the policy was not enforced after its inception and that she suffered as a consequence of it.

¶ 8. On September 14, 1993, Gillis resigned from her employment at USM. She filed her petition to controvert on September 7, 1995. A hearing was held and the administrative law judge rendered an opinion on December 18, 1998, denying her benefits. Gillis appealed the decision to the Full Commission on January 7, 1999. The order of the administrative law judge was affirmed on May 13, 1999. Feeling aggrieved, Gillis appealed to the Circuit Court of Forrest County which affirmed the findings of the Full Commission on November 14, 2001, and entered the order on the docket that same day.

¶ 9. Gillis did not appeal from the November 14, 2001 order. Gillis’ counsel argues that he frequently asked the circuit court whether it had made a decision in the case. Counsel alleges the circuit judge showed him a file on the floor beside the bench, which led him to believe no action had been taken to resolve the matter. Upon additional inquiry, the circuit court advised Gillis’ counsel to prepare an order reversing the Full Commission. The order reversing the Full Commission was entered on July 2, 2002. The circuit court vacated its conflicting orders on October 14, 2002, and issued a fourth order, dated November 18, 2002, reversing the decision of the administrative law judge and Full Commission. It is from the issuance of the final orders that USM appeals.

1. CAN THE CIRCUIT COURT OF FOREST COUNTY, MISSISSIPPI, ACTING IN ITS APPELLATE POWERS, RETAIN INFINITE JURISDICTION ON A MATTER IN WHICH A FINAL ORDER HAS BEEN ISSUED AND NO APPEAL HAS BEEN TAKEN BY THE AGGRIEVED PARTY WITHIN THE THIRTY DAY LIMITATION AFTER THE ISSUANCE OF THE FINAL ORDER PURSUANT TO MISSISSIPPI RULE OF APPELLATE PROCEDURE 4(A)?

¶ 10. USM argues the circuit court lost jurisdiction over the matter when Gil-lis failed to timely appeal the November 14, 2001 ruling which denied compensation benefits. Gillis argues Mississippi Rule of Appellate Procedure 4(h) provides her relief because she had no notice of the entry of the November 14, 2001 order by the clerk of the court as required by Mississippi Rule of Civil Procedure 77. We address USM’s contention that the November 18, 2002 order is void for want of jurisdiction by the circuit court.

¶ 11. The circuit court shall have such appellate jurisdiction as prescribed by law. Miss.Code Ann. § 9-7-81 (Supp.2003). The circuit court sits as an intermediate court of appeals in a workers’ compensation case. Delta CMI v. Speck, 586 So.2d 768, 772 (Miss.1991). Mississippi Rule of Appellate Procedure 4(a) provides:

[I]n a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from. If a notice of appeal is mistakenly 'filed in- the Supreme Court, the clerk of the Supreme Court shall note on it the date on which it was received and transmit it to the clerk of the trial court and it shall be deemed filed in the trial court on the date so noted.

¶ 12. A judgment becomes effective the date it is entered on the general docket of the clerk of court. M.R.C.P. 58. An appeal may be taken to the supreme court from any final judgment of a circuit or chancery court in a civil case. Miss.Code Ann. § 11-51-3 (Supp.2003). Mississippi Rule of Appellate Procedure 4(h) provides:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

¶ 13. The comment to Rule 4(h) states the “reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier. This provision establishes an outer time limit of 180 days for a party who fails to receive timely notice of entry of a judgment or order.” M.R.A.P. 4(h).

¶ 14. The circuit court’s judgment denying Gillis compensation benefits was entered on the court’s docket on November 14, 2001. Gillis had thirty days to appeal the circuit court’s order to the Mississippi Supreme Court. Counsel for Gillis claims the circuit court led him to believe no action had been taken to resolve the matter. Gillis also alleges that she did not receive notice from the clerk of the court that the order had been entered on the docket.

¶ 15. Gillis failed to file an appeal within thirty days of the circuit court’s order as required by Mississippi Rule of Appellate Procedure 4(a). The last date that Gillis could request an out-of-time appeal under Rule 4(h) was 180 days after the November 14, 2001 order was entered on the general docket. Accordingly, Gillis’ time to file a motion for an out-of-time appeal expired May 16, 2003. The record is void of any motion by Gillis. Neither this Court nor the circuit court has the power to suspend the time limit that is set forth in Rule 4(h). Therefore, we find that the circuit court was without jurisdiction when it issued all orders subsequent to the first order.

2. THE COMMISSION IS THE FINDER OF FACTS AND IF SUPPORTED BY SUBSTANTIAL EVIDENCE, THE COMMISSION ORDER SHOULD BE UPHELD AND THIS COURT SHOULD REVERSE THE LOWER COURT AND REINSTATE THE UNANIMOUS COMMISSION ORDER BECAUSE THE CLAIM OF DAWN GILLIS IS TIME BARRED BY THE TWO-YEAR STATUTE OF LIMITATIONS.

¶ 16. This Court applies the same standard of review as the circuit court. State Tax Comm’n v. Vicksburg Terminal, Inc., 592 So.2d 959, 961 (Miss.1991). If supported by substantial evidence, the Court will affirm the findings and order of the Commission. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994). “This Court will reverse an order of the Workers’ Compensation Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.” Mitchell Buick, Pontiac & Equip. Co. v. Cash, 592 So.2d 978, 980 (Miss.1991). If the Commission’s findings are supported by substantial evidence, appellate courts are bound by the Commission’s findings, even if the evidence would persuade this Court to find otherwise, if it were the fact finder. Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994).

¶ 17. When the circuit court reviews findings and conclusions of the Mississippi Workers’ Compensation Commission, it sits as an intermediate court of appeals. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247 (Miss.1991). As such the circuit court reviews all questions of law and fact. Roberts v. Junior Food Mart, 308 So.2d 232, 235 (Miss.1975). See also Miss.Code Ann. § 71-3-51 (Rev.2000). “[W]hen the decision of the Commission is before the circuit court on intermediate appeal, that circuit court may not tamper with the findings of fact, where the findings are supported by a sufficient weight of the evidence.” Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 274 (Miss.1993).

¶ 18. Assuming arguendo, the circuit court retained jurisdiction over the matter, we find there was substantial evidence to support the decision of the Full Commission denying benefits to Gillis. The Full Commission based its decision to deny compensation on Gillis’ failure to file a claim within two years. Mississippi Code Annotated Section 71-3-35(1) (Supp.2003) states in relevant part:

Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred.

Gillis directs the Court’s attention to the holding in Quaker Oats Co. v. Miller, 370 So.2d 1363, 1366 (Miss.1979), to support her position that she is not barred by the two year statute of limitations. In Miller the court stated:

The time period for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable com-pensable character of his injury or disease.

¶ 19. The administrative law judge addressed the statute of limitations issue and found that Gillis was time barred. He determined that Gillis knew as a reasonable person that her medical conditions evolved and became apparent between 1990 and 1992. The administrative law judge specifically found that Gillis knew her lupus condition and Meniere’s disease were aggravated by her work at USM during the years 1990-92 and no later than June 1993. Gillis related the medical problems to her physicians, which was evidenced in a letter to Joanne Stevens, dean of student services at USM as well as the testimony of Dr. McCary and Dr. Bruck-meier. Yet, Gillis did not file her petition to controvert until September 7,1995.

¶ 20. The administrative law judge and Full Commission cited the two year statute of limitations as a bar to Gillis’ receipt of compensation benefits. These decisions were based on substantial evidence in the record. The Court reverses the November 18, 2002 order and reinstates the November 14, 2001 order of the circuit court which affirmed the decision of the Full Commission.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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


author: THOMAS, J.,

text:
    Arnold Jeffrey JOHNSON, Appellant v. STATE of Mississippi, Appellee. Lester Bledsoe, Appellant v. State of Mississippi, Appellee.
    Nos. 2002-KA-01406-COA, 2002-KA-01409-COA.
    Court of Appeals of Mississippi.
    Jan. 20, 2004.
    Rehearing Denied April 27, 2004.

      James P. Vance, B. Leon Johnson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Lester Bledsoe and Arnold Johnson were convicted of armed robbery by a Calhoun County jury. Both were sentenced to thirty-five years’ imprisonment as habitual offenders. Both have appealed and the cases have been consolidated for our review.

¶ 2. Bledsoe and Johnson both allege the eyewitness identifications of them by the victims should have been suppressed, and the verdict was against the overwhelming weight of the evidence. Johnson also argues the trial court erred in refusing to grant a requested continuance and by excluding certain testimony. For the reasons discussed below, we affirm.

FACTS

¶ 3. Around 9:00 p.m. on June 15, 2001, a man knocked on the door of the home of Wayne and Nona Faye Clark, claiming he wished to make a payment on the Steen account. The Clarks own and operate a furniture store and sometimes finance purchases for customers. On occasion, customers would come by the house after business hours to make payments.

¶ 4. Wayne Clark allowed the caller into the house. Very shortly afterwards, a second man entered the house. Mr. Clark, sensing trouble, attempted to draw a pistol from his pocket but the weapon snagged on his clothing. The second intruder seized the gun and turned it on Mr. Clark. This same individual tied up Mr. Clark while the other tied up Mrs. Clark and pushed her to the floor behind a couch. A third man entered the house and rifled through the rooms. Mr. Clark’s wallet and some jewelry were taken and the men left together.

¶ 5. The Clarks freed themselves and proceeded to a neighbor’s home to contact police. At the time, they gave the following descriptions of the robbers:

(1) Black male, second to enter, big man, 240-50 pounds, 5'9" or 10" with dark skin, a big round face and wearing a faded blue bandana.

(2) Black male, third to enter, 150-160 pounds, slim face, dark skin.

(3) Black male, first to enter, 160-170 pounds, neat hair, dressed casually.

¶ 6. No suspects were apprehended until October 2001. In the interim, the Clarks had attended a live line-up which did not include any of the appellants and they did not identify anyone at that time. In October, Mrs. Clark saw photographs in the newspaper of three individuals accused of robbing a bank in another town and immediately recognized two of them as the men who had robbed the Clarks in June. Mrs. Clark showed the photos to her husband, who recognized all three men. Authorities were notified and a photo array was brought for the Clarks to view. Mr. Clark identified all three men — Arnold Jeffrey Johnson, Lester Bledsoe and Jeffrey Hubbard, a/k/a Jeffrey Sally. Mrs. Clark identified Johnson and Hubbard but not Bled-soe.

¶ 7. Johnson, Bledsoe and Hubbard were jointly indicted but the court granted a motion to sever Hubbard’s case and the trial proceeded with Johnson and Bledsoe only. The jury found both men guilty and this appeal followed.

ANALYSIS

1. Eye witness identifications

¶ 8. Both appellants argue the identification of them should have been suppressed because the photo array shown to the Clarks was unduly suggestive. The same photographs used in the newspaper bank robbery article were also used in the photo array. Bledsoe and Johnson’s photos were inverted but otherwise the three pictures appeared side by side much as the newspaper had printed. The appellants also argue that contradictions between the Clarks’ original statements and those made at a suppression hearing rendered the identification too unreliable to have been presented to the jury. Bledsoe adds the claim that law enforcement drew an “X” beneath his photo, conspicuously singling him out for misidentification.

¶ 9. Constitutional law dictates that identification procedures comport with due process requirements. Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). What is proscribed are unnecessarily suggestive pretrial identification procedures where a substantial likelihood of misidentification exists. York v. State, 413 So.2d 1372, 1380-81 (Miss.1982). Due process requires that police say or do nothing which would prompt a witness to identify a particular individual. Coleman v. Alabama, 399 U.S. 1, 5-6, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). However, even an identification resulting from an unnecessarily suggestive identification procedure is not automatically to be excluded. York, 413 So.2d at 1381. If, under the totality of the circumstances, the identification is reliable, evidence concerning the out-of-court identification would still be admissible. Id.

¶ 10. As a preliminary matter, we note that Mrs. Clark never identified Bledsoe, only Mr. Clark. As Mrs. Clark explained, she was shoved behind the couch by the time the third intruder entered the home and she never saw him but for the briefest of glimpses through the front door. The third individual was identified by Mr. Clark as Bledsoe. Testimony as to when the officer placed an “X” beneath Bled-soe’s photo differed. It was drawn either after Mr. Clark had identified all three men and before Mrs. Clark was shown the photo array, or after the array was shown to Mrs. Clark and the officer marked the individual photo to denote that Mrs. Clark did not identify Bledsoe.

¶ 11. Whichever version of the timing is correct, the mark clearly played no part in the identification of Bledsoe. All witnesses who testified stated that the “X” was not present when Mr. Clark identified Bledsoe. The mark therefore could not have persuaded Mr. Clark to make the choice he did. Even had the mark been present when Mrs. Clark viewed the photos, she never identified Bledsoe. She cannot have been led to make a misidenti-fication through a suggestive procedure when she made no identification at all.

¶ 12. As to the remainder of the argument, the first step must be to determine whether or not the State engaged in an unnecessarily suggestive identification procedure. We cannot find that it did. The photographs used were mug shots, a common practice in putting together photo arrays for identification procedures and, in and of itself, does not equal a suggestive procedure.

¶ 13. The Clarks identified the suspects from the newspaper. They were quite certain of their identification and notified the police. It is this identification which must be reviewed for possible taint as a result of improper State conduct. We cannot find that the identifications were in any fashion connected with State activity. Had the Clarks been unable to identify Johnson and Bledsoe before the photo array was presented to them but after the photos appeared in the newspaper, the answer to this question would be different. Under those circumstances, there would be a strong argument that the Clarks were recalling the men from their appearance in the newspaper rather than from the crime committed in their home. Those, however, are not the facts and the subsequent photo array, which did nothing but satisfy a law enforcement procedure, was immaterial to the actual identification by the Clarks.

2. Weight of the evidence

¶ 14. In reviewing a claim that a verdict is against the overwhelming weight of the evidence, we look at the evidence in a light most favorable to the verdict. Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). We reverse only where the overwhelming weight of the evidence in this light is such that permitting it to stand would work an unconscionable injustice. Id.

¶ 15. Although listed in the section of their briefs addressing the identification procedures, Johnson and Bledsoe list a number of reasons why the identifications made by the Clarks should not be trusted, arguments which properly belong under the weight of the evidence analysis. Specifically, the appellants argue that Mr., Clark never positively identified- Johnson; that he never looked closely enough at the third man alleged to be Bledsoe to make a positive identification; that Mrs. Clark’s vision is too poor for her to make a viable identification; that Mrs. Clark was unable to identify the appellants in the photo array when shown to her on the witness stand; that the original description of the perpetrators lacked sufficient detail to substantiate a positive identification; and that a number of witnesses testified that Bled-soe sported a beard and braided hair during the summer of 2001 while Mr. Clark, claimed Bledsoe was clean-shaven and did not wear braids. These are all challenges to the credibility of the witnesses. In addition, Bledsoe provided an alibi witness. He claimed he spent the entire evening and night of June 15, 2001, with his girlfriend at a motel. The girlfriend, Tiffany Parker, .testified to this, as well.

¶ 16. Whatever- contradictory or equivocal statements may have been made, the value of the statements is to be determined by the jury. The weight and worth of any witness’s testimony is a matter left to the jury. Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). We are to review the evidence that supports the verdict, not the evidence which could point in the opposite direction, and determine whether it is of sufficient quality to sustain the guilty verdict. We do not substitute our factual findings for that of the jury.

¶ 17. The jury obviously believed Mr. and Mrs. Clark. Bledsoe and Johnson had ample opportunity to attempt to impeach their testimony and did so with great vig- or, according to the transcript. Deciding; whether the Clarks were believable is the jury’s duty. The jury just as clearly disbelieved Bledsoe’s alibi witness. This was not an unreasonable conclusion considering neither she nor Bledsoe informed anyone of their supposed motel tryst until two weeks before trial. Likewise, the jury did not believe or found unimportant the witnesses who testified as to Bledsoe’s appearance in the summer of 2001. Neither of those courses was unreasonable as Mr. Clark, upon identifying Bledsoe for the very first time, noted that he had changed his appearance, specifically his hair. We find no fault with the jury’s conclusion.

3. Denial of continuance

¶ 18. A motion for a continuance was made by the appellants the day before trial on the basis of a new witness whose statement required further investigation; the need for time to obtain an expert in the field of mistaken identification; and the necessity of having the suppression hearing transcript before trial in order to prepare for cross-examination of the Clarks. The court did order the transcript be made available as soon as possible but otherwise denied the motion, specifically finding that no new evidence had come to light during the suppression hearing that warranted a delay.

¶ 19. The new witness, Sharon Clark, was an inmate at the same jail where Bledsoe and Johnson were housed. At some point following the suppression hearing, Sharon Clark told defense counsel that she had been approached by a man named Steen a few days after the robbery and Steen offered to sell her jewelry and a gun. Sharon Clark also stated that there were people in another town who were aware of the real identity of the robbers. Counsel requested the continuance in part based upon this new statement, asking for time to further investigate and find these “other people” with pertinent information. The court found that Sharon Clark was available to testify and she could repeat her statement on the stand.

¶20. The decision to grant or deny a motion for continuance is entrusted to the sound discretion of the trial court. Coleman v. State, 697 So.2d 777, 780 (Miss.1997). We reverse such decisions only to prevent a manifest injustice. Id. In instances such as those claimed here, the need to locate and produce witnesses, statute provides that the application for a continuance must include the names and addresses of the absent witnesses and what facts the witness is expected to provide. Miss.Code Ann. § 99-15-29 (Rev.2000). Johnson and Bledsoe did not name witnesses or state what facts were peculiarly within the unnamed witnesses’ knowledge. They admit they did not know of any particular witnesses, they hoped to investigate further to find the people Sharon Clark alluded to in her statement to counsel. What the appellants were attempting to do was go on the proverbial fishing expedition—unnamed and unknown individuals somewhere may have pertinent information. Under these circumstances, the motion for a continuance was properly denied. Cunningham v. State, 828 So.2d 208, 216 (¶¶ 34, 36) (Miss.Ct.App.2002). We find no injustice to the appellants here, particularly in light of the fact that Sharon Clark’s first statement upon taking the stand at trial was to admit she had lied and recant her entire statement made to defense counsel.

¶ 21. Likewise, denial of the motion for the purpose of obtaining an expert on misidentifications was not an abuse of discretion. Both defendants had known for months that the basis of the State’s case rested upon the identifications by the Clarks. Although it is expressed in the brief to this court that the appellants “naively believed that once the Clarks saw them in the courtroom they would realize they were mistaken,” such a belief does not justify failing to prepare until the day before trial to meet the State’s case.

¶ 22. This assignment of error is without merit.

J. Exclusion of testimony

¶23. Finally, Bledsoe and Johnson complain of the exclusion of testimony by Elenor Hubbard. Ms. Hubbard was the mother of Jeffrey Hubbard, the third man indicted for the robbery of the Clarks and whose own criminal case had been severed from that of Johnson and Bledsoe. Ms. Hubbard intended to testify that her son suffered from significant mental illness and was at her home the night of the robbery. Bledsoe and Johnson intended to utilize this testimony to cast doubt upon the identifications — the Clarks had identified Hubbard along with Bledsoe and Johnson but if Hubbard was not there, then it is more likely the Clarks were incorrect in their identification of Johnson and Bledsoe. The State objected to the testimony as violating the rules regarding notice of alibi witnesses and as irrelevant. The trial court disallowed the testimony without stating upon which ground it found the testimony objectionable so we must assume both grounds were found sustainable.

¶ 24. The relevance and admission or exclusion of evidence is also a matter of discretion for the trial court which will be reversed only for an abuse of that discretion which results in prejudice to a party. Shearer v. State, 423 So.2d 824, 827 (Miss.1982).

¶25. The testimony proffered did not implicate the rule requiring that notice of an alibi witness be given to the State in advance of trial. Ms. Hubbard was not attempting to provide an alibi for either Johnson or Bledsoe but apparently for her son, Jeffrey Hubbard, who was not on trial. We do not find the trial court abused its discretion in ruling the evidence irrelevant. Jeffrey Hubbard’s whereabouts as well as his mental capacity is certainly relevant to his defense but not to that of Johnson and Bledsoe. The appellants were attempting to bootstrap their own innocence to that of a third party who did not even appear at trial.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY OF CONVICTION OF ARNOLD JEFFREY JOHNSON OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS, AND LESTER BLEDSOE OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS AS AN HABITUAL OFFENDER, BOTH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

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


author: KING, P.J.,

text:
    Robert Lee WHITT, Appellant, v. Tommie GORDON, John Bearry, Janice Pierce, Judith Dial and Mississippi Department of Corrections, Appellees.
    No. 2002-CP-01483-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.
    Rehearing Denied April 27, 2004.

      Robert Lee Whitt, Appellant, pro se.
    Office of the Attorney General by James M. Norris, Jane L. Mapp, attorneys for appellees.
    Before KING, P.J., LEE and CHANDLER, JJ.
   KING, P.J.,

for the Court.

¶ 1. Robert Lee Whitt appeals from the dismissal of his complaint by the Circuit Court of Yazoo County. Aggrieved by this dismissal, Whitt states his issues as follows:

I. Whether the Circuit Court erred in ruling that pursuant to Miss.Code Ann. § ll-46-9(l)(m) the defendants as state employees are not liable for the claims of the plaintiff who is a state inmate and was one at the time of the claims.
II. Whether the Circuit Court erred in ruling that the plaintiffs complaint was barred as untimely pursuant to Miss.Code Ann. § 47-5-807.

FACTS

¶ 2. On January 13, 1999, Robert Lee Whitt, an inmate legally incarcerated within the Mississippi Department of Corrections (MDOC), was a passenger in one of two prison vans en route from the University of Mississippi Medical Center in Jackson, to the Mississippi State Penitentiary (MSP) at Parchman, when they stopped in Yazoo City for gasoline. While exiting the gas station, the van in which Whitt was a passenger backed into the other van. After verifying that the inmates and other officers were safe, two of the officers transporting the inmates got out to examine the damage.

¶ 3. Whitt claims that he repeatedly told the officers that his neck and right knee were injured and requested medical attention, but was told he would be alright until they got back to Parchman. Once at Parchman, Whitt was examined by two nurses, Judith Dial and Janice Pierce. X-rays were taken of Whitt’s neck and his knee was examined. Whitt was ordered to refrain from work for five days. Whitt alleges that despite continual complaints to the medical staff at MSP that he failed to receive proper medical treatment and still suffers with neck injuries caused by the accident.

¶ 4. Whitt filed a complaint alleging medical negligence against Dr. John Bear-ry, the medical director at MSP and nurses Judith Dial and Janice Pierce, for failing to exercise the required standard of care. Whitt also alleged negligence against Tommie Gordon, the director of transportation, and John Does 1-3, the officers involved in the accident, for not attempting to aid him after the accident when he complained of knee and neck pain. In his complaint Whitt seeks $1,000,000 in actual and punitive damages.

¶ 5. The defendants filed a motion to dismiss the complaint pursuant to Mississippi Code Annotated Section 11-46-9(l)(m) which grants employees of the MDOC immunity from claims filed by inmates, and Mississippi Code Annotated Section 47-5-807 which states that an inmate has thirty days to seek judicial review of an adverse decision after exhausting administrative remedies.

¶ 6. After hearing the defendants’ motion the judge dismissed Whitt’s complaint on August 27, 2002, finding that pursuant to Mississippi Code Annotated Section 11-46-9(l)(m) Whitt, as a state inmate, was prohibited from bringing a tort claim against the defendants who were all state employees. The court further found that Whitt’s complaint was untimely pursuant to Mississippi Code Annotated Section 47-5-807 because Whitt failed to seek judicial review within thirty days as required by statute.

ISSUES AND ANALYSIS

Whether the Circuit Court erred in ruling that pursuant to Miss.Code Ann. § ll-46-9(l)(m) the defendants as state employees are not liable for the claims of the plaintiff who is a state inmate and was one at the time of the claims.

¶ 7. A motion for dismissal under Mississippi Rules of Civil Procedure 12(b)(6) raises an issue of law. Liggans v. Coahoma County Sheriff’s Dep’t, 823 So.2d 1152, 1154(¶ 5) (Miss.2002), citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). The motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Liggans, 823 So.2d at 1154(¶ 5). In reviewing the grant of a motion to dismiss, this Court conducts a de novo review. Id., citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995).

¶ 8. The Mississippi Tort Claims Act provides a limited waiver of immunity for actions against governmental entities while maintaining absolute immunity for other specific claims. Miss.Code Ann. § 11-46-5 (Rev.2002). The case sub judice is covered by an exception to the Act’s limited waiver of immunity, that is, the “jail inmate” exemption which states in part:

(l) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution ....

Miss.Code Ann. § ll-46-9(l)(m) (Rev. 2002). Thus the Act preserves the government’s immunity from suit with regard to the claims of jail inmates.

¶ 9. In a very similar case the Mississippi Supreme Court applied the “jail inmate exemption” to bar a negligence action against the Town of Raleigh by an inmate who was injured in an automobile accident while in a work release program and sued the Town for damages. Wallace v. Town of Raleigh, 815 So.2d 1203 (¶21) (Miss.2002). The court held:

The Mississippi Tort Claims Act completely bars Wallace, an inmate of the Mississippi Department of Corrections, from bringing a negligence claim against the Town of Raleigh. The language of the statute is unambiguous, and the intent of the Legislature is clear. Inmates have been specifically excluded from bringing such actions against governmental entities. This Court has continuously held there are no constitutional violations, and the challenging party could not prove otherwise. We hold the Town of Raleigh was entitled to a judgment as a matter of law. Therefore, this Court affirms the trial court’s grant of summary judgment in favor of the Town of Raleigh

Id.

¶ 10. Whitt was an inmate of the Mississippi State Penitentiary in the custody of the Mississippi Department of Corrections when the accident occurred. Mississippi Code Annotated Section 11 — 46— 9(£)0m), without exception, prohibits all claims from claimants who are inmates at the time the claim arises. We find Whitt’s complaint against Dr. John Bearry, Judith Dial, Janice Pierce, Tommie Gordon and John Does 1-3 is therefore barred.

II.

Whether the Circuit Court erred in ruling that the plaintiffs complaint was barred as untimely pursuant to Miss. Code Ann. § 47-5-807.

¶ 11. Our resolution of issue I renders issue II moot.

CONCLUSION

¶ 12. The Mississippi Tort Claims Act completely bars Whitt, an inmate of the Mississippi Department of Corrections, from bringing a negligence action against employees of MDOC from injuries arising out of an incident that occurred while he was incarcerated. We find that the officers, nurses and doctor were acting within the scope and course of their employment and they have absolute immunity under Mississippi Code Annotated Section 11-46 — 9(Z )(m).

¶ 13. THE JUDGMENT OF DISMISSAL WITH PREJUDICE FROM THE CIRCUIT COURT OF YAZOO COUNTY IS HEREBY AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO YAZOO COUNTY.

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


text:
    Mary Jane SMITH, Appellant v. Thomas SMITH, Appellee.
    No. 2001-CA-00905-COA.
    Court of Appeals of Mississippi.
    Jan. 27, 2004.
    Rehearing Denied May 4, 2004.

      Charles R. Brett, Tupelo, attorney for appellant.
    J. Mark Shelton, Jana L. Dawson, attorneys for appellee.
    Before MCMILLIN, C.J., BRIDGES and THOMAS, JJ.
   THOMAS, J.,

for the Court.

¶ 1. Thomas Smith filed a complaint for modification and other relief from a divorce judgment and agreement of the Superior Court of Santa Clara, California, in the Chancery Court of Lee County. Mary Jane Smith filed a counter-claim alleging Thomas was in contempt for failure to pay her $15,000. The chancellor denied Thomas’ request for modification and held that Thomas was not in arrears as to the payment of $15,000, but the chancellor did order Thomas to reimburse Mary Jane $167.43 for a plane ticket he deducted from one of her monthly checks. Aggrieved, Mary Jane appealed the denial of her counter-claim and asserts the following issues:

I. THE TRIAL COURT ERRED WHEN IT PERMITTED THOMAS SMITH TO USE PAROL EVIDENCE TO IMPEACH THE PLAIN WRITTEN TERMS OF THE JUDGMENT OF THE SUPERIOR COURT OF CALIFORNIA.

II. THE TRIAL COURT ERRED WHEN IT PERMITTED THOMAS SMITH TO TESTIFY THAT HE HAD PAID MONEY HE OWED HIS WIFE WHEN HE FAILED TO PLEAD THE AFFIRMATIVE DEFENSES OF PAYMENT OR ACCORD AND SATISFACTION AS REQUIRED BY THE MISSISSIPPI RULES OF CIVIL PROCEDURE.

III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO ALLOW MARY JANE SMITH TO INTRODUCE ADDITIONAL EVIDENCE AND TESTIMONY THAT SHE HAD IN FACT PAID HER SHARE OF THE INCOME TAX LIABILITY AS ORDERED IN THE DIVORCE DECREE AS THAT WOULD DIRECTLY DISPROVE THOMAS SMITH’S TESTIMONY THAT THEY HAD A VERBAL AGREEMENT PRIOR TO THE DIVORCE DECREE THAT WAS NOT INCORPORATED INTO THE DIVORCE DECREE; THEREFORE, SHE COULD NOT HAVE OWED HIM ANY MONEY THAT WOULD IN ANYWAY HAVE OFFSET THE MONEY HE PLAINLY OWED HER AND HAD NOT PAID HER UNDER THE CALIFORNIA DECREE.

Finding error, we affirm in part and reverse and render in part.

FACTS

¶ 2. Thomas and Mary Jane Smith were married for approximately eighteen years and had two children during the marriage, a son and a daughter in their late teens at time of their divorce. Living in California at the time, Thomas and Mary Jane obtained a divorce based on irreconcilable differences in the Superior Court of Santa Clara, California. A judgment was issued divorcing the couple by the California court on April 14, 1997, with a final termination of marital status occurring three days later on April 17, 1997. A stipulation pendente lite was entered on June 30, 1997, in which the parties agreed upon some matters regarding how they would handle a tax liability of $31,000 from the year 1996. A final decree was not entered until June 11, 1998. By the time of the decree, Mary Jane had moved back to her original home town, Tupelo, Mississippi. Thomas remarried and lived in Massachusetts briefly before moving to Atlanta, Georgia.

¶ 3. Thomas and Mary Jane agreed in the divorce decree that Thomas would pay Mary Jane a total of $4,500 per month in child and spousal support. This amount would shift on a sliding scale over time beginning with more of the support money reserved for child support which would steadily decrease until shortly after the children had graduated from high school. At that point, the entire $4,500 would be paid as spousal support for Mary Jane.

¶ 4. In 2000, Thomas felt that a material change in circumstances warranted a modification of the judgment, and filed a complaint for modification and other relief in the Chancery Court of Lee County. Thomas requested that the chancery court terminate his obligation to pay spousal support, or in the alternative, decrease the amount owed. Thomas cited a mortgage payment he did not have at the time of the divorce, a new child by his subsequent marriage, the oldest child of his marriage to Mary Jane obtaining employment, Mary Jane’s becoming employed, and the diminution of his family’s finances caused by the loss of his new wife’s company.

¶ 5. Mary Jane filed a counter-claim against Thomas on December 6, 2000, alleging that Thomas was in contempt of the California order for failure to pay $15,000. Mary Jane alleged that the $15,000 was for an amount reflecting a sum sufficient to equalize the cash balances between life insurance policies held in each of their names. Thomas argued that he paid the sum of $30,000 for a joint tax obligation of which $15,000 would have been the obligation of Mary Jane and that he therefore was not in arrears.

¶ 6. The chancery court found that Thomas Smith had a gross income of $29,166 per month, an adjusted gross monthly income of $18,205.69, and total monthly expenses, including a $5,000 mortgage payment and $4,500 paid to Mary Jane, of $16,056.05. The chancery court, in denying Thomas’ complaint, held that matters asserted by Thomas should have reasonably been anticipated at the time of the divorce and did not justify a reduction in support paid to Mary Jane.

¶ 7. In regard to the counter-claim, the chancery court found that the proof provided by Thomas clearly established that the sum was a result of payment of income taxes which the parties jointly owed. The chancery court denied Mary Jane’s counter-claim and held that Thomas was not in arrears in the amount of $15,000. The court did find that Thomas Smith incorrectly deducted from one of Mary Jane’s monthly support checks the price of an airline ticket for one of his children’s friends when they visited with him. The court ordered Thomas to reimburse Mary Jane $167.43 within thirty days of the judgment. Mary Jane perfected an appeal to this Court regarding the denial of her counter-claim by the chancery court. Thomas requests that the chancery court’s findings on all issues be affirmed.

STANDARD OF REVIEW

¶ 8. The standard of review employed by this Court in domestic relations cases is abundantly clear. Chancellors are vested with broad discretion, and this Court will not disturb the chancellor’s findings unless the court was manifestly wrong, the court abused its discretion, or the court applied an erroneous legal standard. Andrews v. Williams, 723 So.2d 1175, 1177(¶ 7) (Miss.Ct.App.1998) (citing Sandlin v. Sandlin, 699 So.2d 1198, 1203 (Miss.1997); Johnson v. Johnson, 650 So.2d 1281, 1285 (Miss.1994); Crow v. Crow, 622 So.2d 1226, 1228 (Miss.1993); Gregg v. Montgomery, 587 So.2d 928, 931 (Miss.1991)). However, we will not hesitate to reverse should we find that a chancery court was manifestly wrong, abused its discretion, or applied an erroneous legal standard. Glass v. Glass, 726 So.2d 1281, 1284(¶ 11) (Miss.Ct.App.1998) (citing Bowers Window & Door Co., Inc. v. Dearman, 549 So.2d 1309 (Miss.1989)).

ANALYSIS

I. DID THE TRIAL COURT ERR WHEN IT PERMITTED THOMAS SMITH TO USE PAROL EVIDENCE TO IMPEACH THE PLAIN WRITTEN TERMS OF THE JUDGMENT OF THE SUPERIOR COURT OF CALIFORNIA?

¶ 9. Mary Jane asserts that the trial court erred in allowing Thomas Smith to produce evidence which showed that he had paid a joint tax liability in .the amount of $30,000, and argue that his payment of that liability fulfilled a debt of $15,000 which Mary Jane claimed he owed. According to Mary Jane, the June 1998 agreement stated that Thomas would pay Mary Jane $15,000 to equalize the cash value of two life insurance policies which were split between the two parties.

¶ 10. Thomas argues that the trial court did not err in allowing Thomas to testify regarding the payment of the tax liability because the agreement entered on June 11, 1998, by the California court was simply re-adopting the provision previously required by the stipulation pendente lite entered on June 30, 1997. The stipulation pendente lite related directly to the payment of the taxes and required that “the petitioner shall be entitled to a credit for those amounts used for payment of the taxes to the extent the taxes are found to be a community liability.” Thomas testified that an agreement was entered into in December 1997, six months after the stipulation pendente lite, in which the payment for the tax liability would serve to offset the equalization payment of the life insurance policies.

¶ 11. Under the parol evidence rule, where a contract is not ambiguous, the intention of the contracting parties should be taken solely from the wording of the contract. Turner v. Terry, 799 So.2d 25, 32(¶ 16) (Miss.2001). Although parol evidence which contradicts, varies, alters, adds to, or detracts from the written agreement is not admissible, this bedrock rule “is subject to many exceptions and is said to be very flexible.” Byrd v. Rees, 251 Miss. 876, 882, 171 So.2d 864, 867 (1965). “Parol evidence of the intention of the parties may be received to clear up an ambiguity by reason of which, such intention is not definitely expressed.” Id.

¶ 12. The final divorce decree of 1998 did state that Thomas owed Mary Jane $15,000 in order to offset the differences in two life insurance policies. The decree also stated that Thomas would pay the $31,000 tax liability from 1996 which was owed jointly and Mary Jane would shift from her half share of an IRA $15,500 in order to offset the obligation. The decree made specific reference to the 1997 stipulation pendente lite. No evidence was presented at trial regarding whether Mary Jane shifted the funds in her IRA, though she has attempted to attach evidence of such to her brief.

¶ 13. The chancellor recognized the divorce as being effected when the marital status was terminated in April 1997. The chancellor also gave great weight, to the stipulation pendente lite which the 1998 decree referenced and which was entered in June 1997. Under the chancellor’s view, the testimony of a December agreement by Thomas was not parole evidence, since it did not occur prior or contemporaneous to the June 1997 stipulation.

¶ 14. The chancellor’s view was in error. The parties entered into the 1998 written agreement, which clearly and unambiguously laid out the payment of the taxes by Thomas and the repayment from an IRA by Mary Jane. It also discussed the equalization of two life insurance policies which would require Thomas to pay Mary Jane $15,000. The chancery court allowed Thomas to testify to an oral agreement which allegedly occurred in December 1997, more than six months before the June 1998 final decree was entered. The intention of the parties should have been taken from the wording of the contract. Turner, 799 So.2d at 32(¶ 16). Thomas’ testimony was inadmissible.

¶ 15. “The rule that the terms of a written contract or conveyance cannot be varied or added to by parol evidence is not merely a rule of evidence, but is one of substantive law, and, in measuring the rights of the parties to a written contract or conveyance which, on its face, is unambiguous and expresses an agreement com-píete in all its essential terms, the writing will control.” Kelso v. McGowan, 604 So.2d 726, 730 (Miss.1992) (quoting Edrington v. Stephens, 148 Miss. 583, 584-114 So. 387, 389 (1927)). As to matters of law, our standard of review is de novo. Davidson v. Davidson, 667 So.2d 616, 621 (Miss.1995). Thomas’ sole defense to Mary Jane’s counter-claim was that he did not owe Mary Jane the $15,000 because they had an oral agreement that he would pay a tax liability that they owed jointly in order to offset that amount. This purported oral agreement was prior to the clear, unambiguous language of the June 1998 written agreement which stated otherwise. We therefore reverse and render judgment for the appellant for the full $15,000.

II. DID THE TRIAL COURT ERR WHEN IT PERMITTED THOMAS SMITH TO TESTIFY THAT HE HAD PAID MONEY HE OWED HIS WIFE WHEN HE FAILED TO PLEAD THE AFFIRMATIVE DEFENSES OF PAYMENT OR ACCORD AND SATISFACTION AS REQUIRED BY THE MISSISSIPPI RULES OF CIVIL PROCEDURE?

III. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT REFUSED TO ALLOW MARY JANE SMITH TO INTRODUCE ADDITIONAL EVIDENCE AND TESTIMONY THAT SHE HAD IN FACT PAID HER SHARE OF THE INCOME TAX LIABILITY AS ORDERED IN THE DIVORCE DECREE, AS THAT WOULD DIRECTLY DISPROVE THOMAS SMITH’S TESTIMONY THAT THEY HAD A VERBAL AGREEMENT PRIOR TO THE DIVORCE DECREE THAT WAS NOT INCORPORATED INTO THE DIVORCE DECREE; THEREFORE, SHE COULD NOT HAVE OWED HIM ANY MONEY THAT WOULD IN ANYWAY HAVE OFFSET THE MONEY HE PLAINLY OWED HER AND HAD NOT PAID HER UNDER THE CALIFORNIA DECREE?

¶ 16. Due to our disposition of Issue I above, we need not reach the remaining issues.

¶ 17. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED IN REGARD TO THE MODIFICATION OF SUPPORT AND REIMBURSEMENT OF $167.43, AND REVERSED AND RENDERED IN REGARD TO THE DENIAL OF THE COUNTER CLAIM FOR $15,000. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: MYERS, J.,

text:
    Joseph RAIOLA, Appellant v. CHEVRON U.S.A., INC. d/b/a Chevron Pascagoula Refinery; Bill Porter, Individually; and Bobby Burkes, Individually, Appellees.
    No. 2002-CA-01171-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2004.
    Rehearing Denied May 4, 2004.

      Kaye J. Persons, attorneys for appellant.
    Patrick R. Buchanan, Biloxi, Kimberly Gee Stith, Steven R. McCown, Stacey S. Calvert, attorneys for appellees.
    Before KING, P.J., THOMAS and MYERS, JJ.
   MYERS, J.,

for the Court.

¶ 1. Chevron fired Joseph Raiola and he sued alleging discrimination based on national origin, defamation, intentional infliction of emotional distress, breach of contract, tortious interference with contract, and negligent hiring and retention. Chevron removed the suit to federal court. The United States District Court for the Southern District of Mississippi granted Chevron’s motion for summary judgment on the federal claims and remanded the state law claims to the Circuit Court of Jackson County. The Circuit Court of Jackson County granted Chevron’s motion for summary judgment. As a result, Raio-la filed a timely notice of appeal and now requests our review of the following issue:

WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO RAIOLA’S STATE LAW CLAIMS

STATEMENT OF FACTS

¶ 2. This is an employment dispute involving the alleged wrongful termination of Joseph Raiola. Raiola’s employment with Chevron began in 1978, when he was hired at its Perth Amboy, New Jersey refinery. In 1983, Raiola began working at the Pas-cagoula, Mississippi refinery. Raiola completed the refinery’s mandatory three-year training program and was fully qualified as an operator. In 1992, Chevron promoted Raiola to head operator in the utilities section of the operations department.

¶ 3. In 1995, Chevron transferred Raiola to work on the crew under the supervision of shift supervisor Buddy Abney. During this time, Abney documented several deficiencies in Raiola’s work performance. After sixteen months under Abney’s supervision, Chevron asked if Bobby Burkes would accept Raiola on his crew. Burkes agreed and Raiola began working under Burkes’s supervision. Raiola was also placed in Chevron’s performance improvement plan. According to the terms of the plan, if Raiola’s performance did not improve, he faced termination. In 1996, Burkes removed Raiola from the performance improvement plan and allowed him to work on several special projects.

¶ 4. In 1997, Burkes placed Raiola on a special project to coordinate the shutdown of the boiler. While completing this assignment, Raiola worked independently and without much direct supervision from Burkes. Raiola was informed that he could work as much time as needed to complete the project. Chevron instructed Raiola to report the amount of time actually worked to the particular shift supervisor on duty or directly to Burkes.

¶ 5. Later that year, several of the shift supervisors in the utilities section began to notice that Raiola was frequently unavailable during the late afternoons. Head operators in the unit began to complain that Raiola was not working a complete shift and was not around to complete his duties. As a result, Ed Hurt, a utilities supervisor, asked Danny Kilgore, a shift supervisor, to run a report of the activity of Raiola’s card key to determine the hours Raiola was actually in the refinery. Each employee was assigned a card key for security purposes and the system recorded the time that employees entered and exited the refinery.

¶ 6. Hurt gave Burkes a copy of the card access report. Burkes compared the report to Raiola’s time sheets and noticed several discrepancies. On several occasions, the report showed that Raiola was at the refinery for significantly less time than his time sheets had indicated. Burkes informed his supervisor, Doug Pottenger, of these discrepancies. Pottenger then informed Bill Porter, the operations manager, that an investigation had begun of Rai-ola’s time.

¶ 7. On November 21, 1997, Johnette Watson, the human resources representative of the operations department, and Burkes met with Raiola to discuss the results of the investigation. At this meeting, Raiola stated that he was not responsible for his time and never looked at his pay stubs.

¶ 8. Raiola next met with Burkes and Porter. Porter decided to suspend Raiola until he could complete the investigation and decide what action, if any, to take. That same day, Porter, Burkes, and Watson held a conference call with the other shift supervisors. Raiola’s supervisors reported that they had questioned Raiola about his time, that they could not find Raiola on several occasions, and that Raio-la never told them to adjust the projected shifts to reflect the time he actually worked. Porter and Watson presented the investigation results to the refinery’s management committee, and Porter recommended that Raiola be terminated for misrepresenting his time, receiving pay for time not worked, and remaining silent about it.

¶ 9. The management committee accepted Porter’s recommendation and on November 25, 1997, Porter informed Raiola of his termination. The next day, Raiola called Watson and requested that Chevron initiate a problem resolution process (PRP), alleging his termination was improper and discriminatory. The PRP is an internal process that allows Chevron employees to have a panel of employees review a managerial decision, including termination decisions. Pursuant to the PRP, Raiola and Porter met with an assigned mediator. Porter refused to change his position, and as a result, Raiola took his grievance to a final panel comprised of management and his peers. During the panel meeting, Raiola presented his case. In addition, the panel interviewed Burkes, Porter, and other employees regarding Raiola’s allegations that his termination was discriminatory and unjust. After this process was completed, the PRP panel concluded that Raiola’s claim of discrimination was not credible. As a result, the PRP panel affirmed the company’s termination decision.

¶ 10. On December 14, 1997, Raiola filed a claim for unemployment compensation with the Mississippi Employment Security Commission (MESC). The MESC determined that Raiola was terminated for misconduct and denied him unemployment benefits. Raiola appealed this decision, and after testimony from Raiola, Burkes, and Porter, the MESC referee affirmed the decision to deny benefits. That determination was then appealed to the MESC Board of Review which affirmed the previous findings. Raiola filed an appeal with the Circuit Court of Jackson County but later requested and was granted a voluntary dismissal prior to a determination.

¶ 11. On February 9, 1998, Raiola filed a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC found probable cause existed that Chevron had violated Title VII and issued Raiola a right to sue letter. Raiola then brought suit under 42 U.S.C. Section 1981 in the Circuit Court of Jackson County, alleging that his termination from Chevron was based on national origin discrimination and, therefore, was unlawful. In addition, Raiola brought claims for defamation, intentional infliction of emotional distress, breach of contract, tortious interference with contract, and negligent hiring and retention. Chevron removed the case to the United States District Court for the Southern District of Mississippi.

¶ 12. On January 5, 2000, the district court granted Chevron’s motion for summary judgment as to Raiola’s federal claims and remanded the state claims to the Circuit Court of Jackson County. On June 14, 2002, the Circuit Court of Jackson County granted Chevron’s motion for summary judgment as to the remaining state claims. Aggrieved by this result, Raiola filed a notice of appeal requesting a reversal in his favor. Finding no error, however, we affirm the decision of the Circuit Court of Jackson County.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS TO RAIOLA’S STATE LAW CLAIMS

¶ 13. We review a summary judgment de novo. Johnson v. Baptist Mem’l Hosp.-Golden Triangle, Inc., 843 So.2d 102, 104 (¶ 10) (Miss.Ct.App.2003). Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). The evidence must be viewed in the light most favorable to the nonmoving party, and that party is to be given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986). However, a mere allegation by the nonmovant that a dispute over material facts exists between the parties will not defeat a movant’s otherwise properly supported motion for summary judgment. Reynolds v. Amerada Hess Corp., 778 So.2d 759, 765(¶ 9) (Miss.2000). In addition, a dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

¶ 14. On appeal, Raiola argues that he is not collaterally estopped from raising his state law claims and that Chevron failed to meet its burden of proof as to summary judgment. Chevron argues that Raiola is precluded from raising his state law claims because the MESC has already adjudicated his claim and has repeatedly found that Chevron terminated Raiola for cause. Chevron further argues the evidence establishes, as a matter of law, that Chevron, Burkes, and Porter have not committed any violations of tort or contract law in terminating Raiola.

1. The Preclusive Effect of the MESC Ruling

¶ 15. Raiola argues he is not precluded from raising his state law claims for several reasons. First, the district court judge remanded Raiola’s state claims instead of exercising supplemental jurisdiction. Second, he was not allowed to properly raise his state law claims at the MESC hearing. Finally, his state law claims were not determined and not essential to the referee’s determination. Chevron argues that issues conclusively decided by the MESC’s Board of Review at an administrative proceeding may not be challenged in a later lawsuit involving the propriety of the termination. In other words, since Raiola chose not to appeal the MESC finding, he is now precluded from relitigat-ing the issue.

¶ 16. We begin our analysis by stating that there is no evidence in the record that the district court judge made any findings as to the merits of Raiola’s state claims. More importantly, Raiola cites no authority for the proposition that a remand order constitutes a favorable disposition of state law claims. As to Raiola’s second and third contentions, we also find no merit. Raiola contends that he was denied a fair opportunity to litigate his state claims because he was prohibited from calling witnesses. However, this issue should have been raised through a direct appeal of the MESC’s Board of Review decision. Miss. Code Ann. § 71-5-531 (Rev.2000). As noted above, Raiola initially appealed the Board of Review’s decision to the Circuit Court of Jackson County but later requested and was granted a voluntary dismissal. In addition, the Board of Review’s finding of fact that Raiola was fired for misconduct is conclusive upon this Court if it is supported by evidence and in the absence of fraud. Miss.Code Ann. § 71-5-531 (Rev.2000). The MESC heard testimony from Raiola, Burkes, and Porter. In addition, there are no allegations of fraud. As a result, Raiola is precluded from arguing before this Court that Chevron’s termination decision was illegal. See Hood v. Dept. of Wildlife Conservation, 571 So.2d 263 (Miss.1990); Miss. Employment Sec. Comm’n v. Phila. Mun. Separate Sch. Dist. of Neshoba Co., 437 So.2d 388 (Miss.1983).

¶ 17. The question remains, however, whether all of Raiola’s state law claims are precluded. In other words, whether the propriety of Raiola’s termination was essential to all of his tort and contract claims. We decline to apply Hood to that extent. Nevertheless, we affirm the trial court’s grant of summary judgment because we find Raiola unable to meet all of the necessary elements of his remaining claims.

2. Raiola’s State Law Claims

¶ 18. In order for Raiola to prevail on a claim of defamation, he must prove that the employees made (1) a false and defamatory statement, (2) unprivileged publication to a third party, (3) negligence on the part of the employees in publishing the statement, and (4) there is either ac-tionability of the statement irrespective of special harm or existence of special harm caused by publication. Eselin-Bullock & Assoc. Ins. Agency, Inc. v. Nat’l Gen. Ins. Co., 604 So.2d 236, 241 (Miss.1992); Blake v. Gannett Co., Inc., 529 So.2d 595, 602 (Miss.1988).

¶ 19. Raiola argues he was defamed because three employees labeled him a thief. Raiola alleges that Porter called him a thief during the PRP. The second statement is alleged to have been made by Watson during the MESC hearing. Raiola finally alleges that Burkes called him a thief but there is no evidence in the record of such a statement.

¶ 20. It should be noted that truth is an absolute defense to a defamation claim. Fulton v. Miss. Publishers Corp., 498 So.2d 1215, 1217 (Miss.1986). Since it has already been determined that Raiola was guilty of receiving pay for time not worked, Porter and Watson’s claim that Raiola was a thief would be protected. Moreover, Porter enjoyed a qualified privilege because any statement made by an employer against an employee when the statement in question affects the employee’s employment is protected by a qualified privilege. Young v. Jackson, 572 So.2d 378, 383 (Miss.1990). These statements are privileged “absent bad faith or malice if the communications are limited to those persons who have a legitimate and direct interest in the subject matter.” Id.

¶ 21. Raiola has presented no evidence that Porter’s statements were made with actual malice. Moreover, Raiola admitted in his deposition that Porter never acted in any way that would indicate bad faith or malice toward him. In addition, a company’s employees have a legitimate and direct interest regarding the reasons for a co-worker’s dismissal. Garziano v. E.I. DuPont De Nemours & Co., 818 F.2d 380, 387 (5th Cir.1987) (citing Benson v. Hall, 339 So.2d 570, 573 (Miss.1976)).

¶22. As for Watson’s statement, she enjoys an absolute privilege because it was made during the course of the MESC hearing. See Miss.Code Ann. § 71-5-131 (Rev.2000). As a result, we find Raiola’s defamation claim to be without merit.

¶ 23. In order for Raiola to prevail on a claim of intentional infliction of emotional distress, he must prove Chevron’s conduct to be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Brown v. Inter-City Fed. Bank, 738 So.2d 262, 264(¶ 9) (Miss.Ct.App.1999). Under our law, liability does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities. Id. Furthermore, damages for intentional infliction of emotional distress are usually not recoverable in mere employment disputes. Id. “Only in the most unusual cases does the conduct move out of the realm of an ordinary employment dispute into the classification of extreme and outrageous, as required for the tort of intentional infliction of emotional distress.” Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 654 (5th Cir.1994).

¶ 24. Raiola argues that Burkes made inappropriate remarks about his Italian heritage; that he was terminated for reasons he did not think justified Chevron’s decision; and that Porter and Watson called him a thief during the PRP meeting and the MESC hearing, respectively. However, we find these acts insufficient to support a claim of this nature. Although Chevron’s alleged treatment of Raiola, if true, may have been inappropriate or even upsetting, none of the conduct rises to the level of extreme and outrageous. Raiola admitted that the remarks about his heritage did not bother him as much as his termination. In addition, Raiola did not complain of any mistreatment until after he was terminated. As a result, we find Raiola’s claim for intentional infliction of emotional distress to be without merit.

¶ 25. Raiola claims that Chevron is liable for breach of contract, tortious interference with contract, and negligent hiring and retention. However, Raiola has failed to address these claims in his brief. For the sake of argument, we will briefly analyze Raiola’s remaining claims.

¶ 26. Raiola argues Chevron breached its contract with him despite the fact that he was an employee at will. Coleman v. Miss. Employment Sec. Comm’n, 662 So.2d 626, 628 (Miss.1995). Raiola presented no evidence of an employment contract. In addition, Chevron’s written policy stated that it could terminate employees without cause or notice at any time. Under Mississippi law, contractual liability will not attach where the employer explicitly states that its policies do not form a contract. Hartle v. Packard Elec., 626 So.2d 106, 109 (Miss.1993). This was the case here. As a result, we find Raiola’s breach of contract claim to be without merit.

¶27. Raiola argues that Burkes and Porter tortiously interfered with his employment contract. Despite having no employment contract, Mississippi allows for such a cause of action absent such a contract. See Levens v. Campbell, 733 So.2d 753, 760 (¶ 27) (Miss.1999). Nevertheless, Raiola’s claim fails for other reasons. This is because Burkes and Porter are privileged to interfere with Chevron’s contractual relationship with Raiola if they occupy a position of responsibility with the company when they are working within the scope of that responsibility and absent bad faith. Shaw v. Burchfield, 481 So.2d 247, 255 (Miss.1985).

¶ 28. Porter is the operations manager for Chevron and is responsible for the supervision of its employees. This responsibility entails recommending employees for termination. In addition, Raiola has presented no evidence of bad faith regarding Porter’s decision. Likewise, Burkes was a shift supervisor at Chevron. Burkes was responsible for investigating violations of head operators under his supervision. Like Porter, Burkes was acting within his authority when he investigated Raiola’s time reports. Moreover, Burkes did not recommend Raiola’s termination and any alleged comments by Burkes were found to be unrelated to Raiola’s termination. As a result, we find Raiola’s tortious interference with contract claim to be without merit.

¶ 29. Finally, Raiola argues that Chevron was negligent in the hiring and retention of Burkes and Porter. In order to prevail, Raiola must prove (1) that Chevron knew or should have known of some incompetence on the part of Burkes and Porter and (2) that Chevron failed to do anything about it. Jones v. Toy, 476 So.2d 30, 31 (Miss.1985).

¶ 30. Raiola argues that he suffered from discriminatory comments made by Burkes. However, Raiola admitted that he never made a formal complaint regarding this alleged abuse until after he was terminated. Raiola also admitted that he had no evidence of incompetence on the part of Porter. Raiola has failed to prove all of the essential elements of this cause of action. As a result, we find it to be without merit.

¶ 31. After examining the evidence in the light most favorable to Raiola, this Court finds that Chevron has demonstrated that there is no genuine issue of material fact as to any of Raiola’s claims. As a result, we affirm the trial court’s grant of summary judgment.

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

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


text:
    Richard STONE, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00136-COA.
    Court of Appeals of Mississippi.
    April 27, 2004.
    Richard Stone, pro se.
    Office of the Attorney General by Jeffrey Á. Klingfúss, attorney for appellee.
    Before KING, P.J., THOMAS and MYERS, JJ.
   KING, P.J.,

for the Court.

¶ 1. Richard Stone pled guilty in the Lowndes County Circuit Court to the statutory rape of a twelve-year-old child. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections. On March 8, 2002, Stone filed a petition for post-conviction collateral relief. That petition was denied in May, 2002. Stone filed a second petition for post-conviction collateral relief entitled “motion to withdraw guilty plea,” which was denied in September 2002. He filed a notice of appeal which was considered as a motion for out-of-time appeal. That motion was denied. Stone has filed this appeal pro se alleging the following errors:

I. Did the trial court err in denying Stone’s motions for post-conviction collateral relief and out-of-time appeal?

II. Did Stone receive an illegal sentence?

III. Was Stone’s guilty plea voluntary?

IV. Did Stone receive effective assistance of counsel?

V. Did Stone receive a disproportionate sentence?

VI. Was Stone denied his due process and equal protection rights in violation of the United States Constitution?

FACTS

¶ 2. The transcript attached to Stone’s brief indicated that on August 27, 2001, he pled guilty to a charge of statutory rape. The charge was read and it was ascertained that Stone was the defendant charged in the indictment. Then, the trial judge questioned Stone to determine whether his plea to the charge of statutory rape was knowingly and voluntarily made.

¶ 3. The trial judge asked Stone if he understood that a guilty plea would waive his right to a jury trial and other constitutional rights including the right at trial to testify in his own behalf, or not to testify, as he chose. Stone acknowledged that he understood his rights and affirmed his desire to plead guilty.

¶ 4. The trial judge questioned Stone’s attorney about whether he had explained the maximum and minimum sentences required by law and the elements of the offense to Stone. Stone’s attorney indicated that he did in fact advise his client of this information.

¶ 5. The trial judge determined that Stone’s guilty plea was voluntarily and knowingly entered. Upon this determination, the court accepted Stone’s guilty plea.

¶ 6. The trial court sentenced Stone to a term of twenty years in the custody of the Mississippi Department of Corrections.

¶ 7. On March 8, 2002, Stone filed a petition for production of records. This motion was treated as a motion for post-conviction relief and was denied on May 28, 2002. No appeal was taken from that denial.

¶ 8. On June 21, 2002, Stone filed a petition for post-conviction collateral relief seeking withdrawal of his guilty plea. An order was entered denying his request for relief on September 7, 2002. No appeal was taken from that denial of relief.

¶ 9. On September 30, 2002, Stone filed another petition for post-conviction collateral relief along with an affidavit of poverty requesting appointment of new counsel, alleging ineffective assistance of counsel, and alleging a denial of his constitutional rights. On November 22, 2002, this petition was denied as well.

¶ 10. On January 13, 2003, the Lowndes County Circuit Clerk’s office received a notice of appeal from Stone. The circuit clerk’s office informed Stone by letter that his appeal deadline was December 22, 2002, and that the notice would be considered by the judge as a motion for out-of-time appeal. On February 20, 2003, the trial judge denied the motion.

ISSUES AND ANALYSIS

¶ 11. This Court will first address whether the trial court should have granted Stone’s out-of-time appeal.

¶ 12. Stone pled guilty and was sentenced on August 27, 2001. Stone filed a motion for production of records on March 8, 2002. This motion was dismissed in May 2002. Stone filed a motion to withdraw guilty plea on June 21, 2002. That motion was denied in September 2002. He filed another motion requesting certain post-conviction relief on September 30, 2002, which was denied in November 2002. Stone then filed a notice of appeal which was received by the circuit clerk’s office on January 13, 2003. The circuit clerk’s office advised Stone by letter that the trial court would take the notice under consideration as a motion for out-of-time appeal. The motion was denied on February 20, 2003. For Stone’s out-of-time appeal motion to be granted, it had to meet the requirements of Mississippi Rule of Appellate Procedure 4(a), (g), or (h). Stone’s motion did not meet those requirements. The trial court noted that Stone did not show “good cause” to justify allowing an out-of-time appeal of the court’s final order of November 2002.

¶ 13. Stone’s remaining issues are procedurally barred for the failure to (1) timely appeal and (2) as a successive writ. On at least two occasions, in June 2002 and September 2002, Stone filed petitions requesting relief which could be granted within the purview of the Mississippi Uniform Post-Conviction Collateral Relief Act pursuant to Mississippi Code Annotated Section 99-39-5. His petitions for relief were denied and no appeals were taken. An order entered which denies post-conviction relief is considered a final judgment. Miss.Code Ann. Section 99-39-23(6) (Supp.2003). The order denying post-conviction relief is a bar to a second or successive motion. Id. There are exceptions to this rule as noted in Retherford v. State, 749 So.2d 269(¶ 9) (Miss.Ct.App.1999):

The exceptions under Mississippi Code Annotated Section 99-39-23(6) only allow the filing of a successive writ if the argument presented within the writ falls under one of the exceptions and has not been previously argued and a decision rendered on the merits by the trial court. In Sneed v. State, 722 So.2d 1255, 1256 (Miss.1998), Sneed had filed two petitions for post-conviction relief. The first petition was denied. Id. Sneed filed a motion to reconsider his post-conviction motion and again it was denied. Id. It was not until after the second denial that Sneed proceeded with the appeal process. Id. The supreme court held that since Sneed failed to file a timely appeal after the first petition was denied his appeal on the successive writ was out-of-time, and he was barred from bringing a successive motion. Id.

Stone has failed to establish that he meets any of the exceptions.

¶ 14. Having reviewed the record, this Court finds that the trial judge followed the Mississippi Rules of Appellate Procedure regarding motions for out-of-time appeals, and we affirm the trial court’s decision. Additionally, we find that Stone’s request for post-conviction relief is barred as a successive petition.

¶ 15. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO LOWNDES COUNTY.

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

      . Mississippi Rule of Appellate Procedure 4(a),(g), and (h) provides: (a) Appeal and Cross-Appeals in Civil and Criminal Cases. Except as provided in Rules 4(d) and 4(e), in a civil or criminal case in which an appeal or cross-appeal is permitted by law as of right from a trial court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from. If a notice of appeal is mistakenly filed in the Supreme Court, the clerk of the Supreme Court shall note on it the date on which it was received and transmit it to the clerk of the trial court and it shall be deemed filed in the trial court on the date so noted.
      (g) Extensions. The trial court may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time otherwise prescribed by this rule. Any such motion which is filed before expiration of the prescribed time may be granted for good cause and may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to other parties, and the motion shall be granted only upon a showing of excusable neglect. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later.
      (h) Reopening Time for Appeal. The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.