text:
    Clarence E. FLETCHER and CEF Enterprises, Inc., Appellants, v. U.S. RESTAURANT PROPERTIES, INC., Appellee.
    No. 2003-CA-01555-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      David R. Sparks, Tupelo, attorney for appellants.
    Martha Bost Stegall, Tupelo, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Clarence E. Fletcher and CEF Enterprises, Inc. (CEF) filed a complaint in the Chancery Court of Lee County seeking a declaratory judgment against U.S. Restaurant Properties, Inc. (USRP). CEF argued that a commercial lease between it and USRP had been modified and that USRP was barred by the doctrines of waiver, equitable estoppel, and laches from seeking rent payments based on gross sales figures. USRP answered CEF’s complaint and also filed a counterclaim. The trial court ruled that CEF was responsible for the full amount of rent based on the terms of the lease. As a result, CEF filed a notice of appeal and now requests our review of the following issues:

I. WhethbR The Subsequent Conduct Of The PaRties Modified The Lease

II. WHETHER THE DOCTRINES OF WAIVER, EQUITABLE ESTOPPEL, AND LACHES PREVENT USRP FROM COLLECTING PERCENTAGE RENT BASED ON GROSS SALES

STATEMENT OF FACTS

¶ 2. In 1983, CEF entered into a twenty-year lease agreement with Burger King Limited Partnership II. The lease covered a piece of real property in Columbus, Mississippi, occupied by a Burger King franchise restaurant. The lease called for the payment of a minimum rent ($5,842.73/mo) and an additional rent based on a percentage of the restaurant’s gross sales (8.5%).

¶3. From the inception of the lease, CEF calculated its percentage rent on the basis of net sales instead of gross sales. CEF reported its sales monthly to USRP, but the figure listed on the report was labeled simply as “sales” and the computation of that figure was not disclosed on the reports.

¶ 4. In 1996, Burger King Limited Partnership II assigned the lease to USRP and CEF continued to calculate and pay its percentage rent in the same fashion. In 2002, USRP performed an audit of the franchise and discovered for the first time that CEF had been calculating and paying its percentage rent on the basis of net sales. As a result, USRP made a demand on CEF for unpaid percentage rent plus interest. After CEF declined to pay the additional amount, USRP notified CEF that it was terminating the lease. An agreement was ultimately reached shortly thereafter that allowed the franchise to remain open.

¶ 5. Pursuant to that agreement, CEF calculated an estimate of the rent in dispute and placed that amount into the registry of the Lee County Chancery Clerk. CEF then filed a civil action in the Chancery Court of Lee County seeking a declaration that the lease had been modified and that USRP was barred by the doctrines of waiver, equitable estoppel, and laches from seeking percentage rent based on gross sales. USRP filed an answer and counterclaim and the parties made the following stipulations:

1.The lease which is the subject of this lawsuit provides for a two-tiered rental payment. One tier is a base rental that is a fixed amount per month. The second tier is a percentage rental which the lease provides will be paid on gross sales.
2. Since the inception of the lease, CEF paid percentage rentals based on net sales rather than gross sales.
3. During the life of the lease, no lessor has taken issue with the fact that the percentage rental was paid on net sales rather than gross sales. The first instance in which an audit on the rental payments was conducted was in May, 2002.
4. USRP was not the original lessor under the lease, but had been the lessor since June, 1996. The lease which is the subject of this action is the only lease CEF has had with Burger King or related entities.
5. CEF has provided USRP a monthly report of sales figures on a simple form that did not distinguish between net sales and gross sales but simply stated the dollar amount of sales for the month being reported.
6. Prior to June, 2002, USRP had never demanded percentage rentals on any basis other than which it had been receiving from 1996 to 2002.
7. No statement was made by any representative of either lessor to CEF after the lease was entered stating that percentage rent could be paid on a net basis as opposed to a gross basis.
8. If Clarence Fletcher were called to testify, he would state that he was acting on a statement made to him by an unidentified representative of the Burger King company in 1979. CEF has calculated what it estimates to be the amount of rent in dispute in this matter, and has made a deposit of funds into the registry of the Chancery Court Clerk.

¶ 6. After reviewing the stipulations and briefs, the chancellor ruled that there had been no modification of the lease, and that the doctrines of waiver, equitable estoppel, and laches did not apply. The chancellor ruled that CEF was responsible for the full amount of rent based on the terms of the lease. As a result, CEF filed a timely notice of appeal.

LEGAL ANALYSIS

I. WHETHER THE SUBSEQUENT CONDUCT OF THE PARTIES MODIFIED THE LEASE

¶ 7. “The findings of a chancellor will not be disturbed or set aside on appeal unless manifestly wrong and not supported by credible evidence, or unless an erroneous legal standard was applied.” Taranto Amusement v. Mitchell Assoc., 820 So.2d 726, 728(¶ 7) (Miss.Ct.App.2002). The subsequent actions of parties pursuant to a contract may support a finding that the original contract has been modified to an extent consistent with the subsequent course of conduct. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1359 (Miss.1989) (citing Stinson v. Barksdale, 245 So.2d 595, 597-98 (Miss.1971)). “What the parties to a contract consistently do thereunder is evidence of what the contract between them required that they should do.” Delta Wild Life & F., Inc. v. Bear Kelso Plant., Inc., 281 So.2d 683, 686 (Miss.1973).

¶ 8. In the instant case, however, there is no issue of ambiguous contract language. The parties stipulated that the language of the lease requires CEF to pay percentage rent based on gross sales. Instead, CEF argues that its payment of percentage rent based on net sales over a period of almost nineteen years effectively modified the written lease. Essentially, CEF argues that USRP’s acceptance of such payment constituted an abandonment of that right under the lease. In support of this argument, CEF directs our attention to Broome Construction Co. v. Beaver Lake Rec. Ctr., Inc., 229 So.2d 545 (Miss.1969).

¶ 9. Broome involved a dispute over a construction contract. Beaver Lake was a non-profit corporation which owned a recreation center in Lamar County. Broome was a contractor specializing in heavy construction. The controversy stemmed from Beaver Lake’s efforts to add a man-made lake to its physical plant.

¶ 10. Beaver Lake accepted bids on the project and ultimately accepted Broome’s bid. A contract was entered between the two parties and Broome began clearing the lake bed and dam site. While this work was in progress, the specifications upon which Broome’s contract was based were disapproved by the guarantor of the loan.

¶ 11. As a result, the guarantor requested that Beaver Lake revise its plans in order to gain approval. The plans were ultimately approved but they were substantially more demanding than the original. Beaver Lake then invited Broome to revise its original bid of $45,000 and Broome entered a new bid of $75,000. Other contractors were invited to bid as well.

¶ 12. Broome then wrote Beaver Lake a letter reaffirming his “willingness to work with [it] on the matter.” Broome also wrote, “[w]e would not object to giving up our contract with you on all items except the clearing.”

¶ 13. When Beaver Lake accepted another bid of $58,000 instead of Broome’s, Beaver Lake wrote a formal letter to Broome directing him to cease the clearing work. Broome refused and brought action in the Chancery Court of Lamar County.

¶ 14. The chancellor found that the contract was voluntarily relinquished by Broome in all respects except the clean-up portion. Id. at 547. The chancellor found there was ample evidence to support a finding of mutual abandonment. Id. The supreme court affirmed the lower court’s decision ruling that “[r]ights acquired under a contract may be abandoned or relinquished by agreement or conduct clearly indicating such purpose.” Id. The court also ruled that intent to abandon may be inferred from conduct of the parties which is inconsistent with the continued existence of the agreement, and mutual assent to abandon a right under a contract may be manifested in other ways than by words. Id.

¶ 15. Broome is clearly distinguishable from the case sub judice because the contractor had actual notice that the contract was rejected by the guarantor of the loan. The contractor also agreed in writing that he would allow for the modification of the original contract. Unlike Broome, there is no evidence that USRP had any knowledge that CEF was paying percentage rent contrary to the unambiguous terms of the lease. There is also no evidence that USRP agreed to accept percentage rent based on net sales. In fact, the parties stipulated that CEF only provided USRP with a monthly report of sales figures on a simple form that did not distinguish between gross and net sales.

¶ 16. CEF asserts that USRP should not have assumed that CEF’s calculations were correct. We disagree. As the chancellor noted, USRP “was entitled to expect those payments to be the correct amount and submitted in good faith.” The implication that USRP somehow knew that CEF was not paying percentage rent according to the terms of the lease is completely contradicted by the record which includes some of the monthly reports that CEF sent to USRP and the stipulations made on the record.

¶ 17. The lease was not modified, and USRP did not abandon its right to receive percentage rent based on gross sales. We find the chancellor’s decision to be supported by the evidence and not manifestly wrong.

II. WHETHER THE DOCTRINES OF WAIVER, EQUITABLE ESTOPPEL, AND LACHES PREVENT USRP FROM COLLECTING PERCENTAGE RENT BASED ON GROSS SALES

1. Waiver

¶ 18. CEF argues that USRP waived its right to percentage rent based on gross sales by continuously accepting the percentage rent tendered. “[A] waiver presupposes a full knowledge of a right existing, and an intentional surrender or relinquishment of that right.” Taranto Amusement, 820 So.2d at 729-30 (¶ 13). “To establish a waiver, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right alleged to have been waived.” Id.

¶ 19. As noted above, the parties stipulated that USRP was not aware that CEF had been paying percentage rent based on net sales until May 2002. One month later, USRP made a formal demand for unpaid rent. CEF presented no evidence that USRP knowingly surrendered its right to collect percentage rent based on gross sales after it became aware of CEF’s conduct. To the contrary, USRP took immediate action to collect the difference.

¶20. Moreover, Section 8.10 of the lease is a non-waiver provision that states:

NON-WAIVER. The failure of the Lessor to insist upon strict performance of any of Lessee’s obligations under this Lease shall not be deemed a waiver of any rights or remedies that Lessor may have and shall not be deemed a waiver of any subsequent breach or default by Lessee.

¶ 21. In Kirkland v. Chinita Land Development, Inc., 798 So.2d 620, 623-24 (¶ 12) (Miss.Ct.App.2001), this Court upheld a similar non-waiver provision. In that case, we held that the lessor, by routinely accepting late payments, did not as a result waive the right to rescind the lease based on the lessee’s subsequent default. Id. We held that the lease expressly stated that failure of lessor to insist upon strict compliance would not cause waiver of its right to later insist upon strict compliance. Id. Our holding in Kirkland is applicable to the case at hand. USRP’s right to collect percentage rent based on gross sales was a recurring right based upon reoccurring defaults on the part of CEF. Id. Therefore, there was no waiver.

2. Equitable Estoppel

¶ 22. “Equitable estoppel is a doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right he otherwise would have.” In re Municipal Boundaries of City of Southaven, 864 So.2d 912, 917 (¶ 10) (Miss.2003). “Equitable estoppel requires that one party by its conduct, words, or even silence, make a representation or concealment of material facts.” Brock v. Hankins Lumber Co., 786 So.2d 1064, 1067 (¶ 11) (Miss.Ct.App.2000). “That representation must be with actual or imputed knowledge of the facts and with the intent that the other party rely on the representation because of the party’s ignorance of the truth.” Id. The damage must proximately result, and it is the claimant’s burden to prove these elements by a preponderance of the evidence. Id.

¶23. Applying the elements to the case at hand, it becomes clear that CEF has failed to prove what is required. First, neither USRP nor its predecessor had knowledge prior to the audit that CEF had been calculating its percentage rent on net sales. Second, CEF never claimed nor presented any evidence that it was ignorant of the fact that percentage rent was to be paid on gross sales. Finally, CEF was not damaged because it ultimately paid less than what the language of the lease ordered. Therefore, the doctrine of equitable estoppel is inapplicable.

S. Laches

¶ 24. In Merchants & Farmers Bank v. State ex rel. Moore, 651 So.2d 1060, 1063 (Miss.1995), our supreme court held that:

Before laches can be invoked to bar litigation, the following three independent criteria must be satisfied: (1) delay in asserting a right or claim; (2) that the delay was not excusable; and (3) that there was undue prejudice to the party against whom the claim is asserted.

¶ 25. The lease agreement was entered into in 1983. USRP became lessor under the lease in 1996. USRP discovered the shortage in percentage rent in 2002. As a result, there was a delay in asserting USRP’s claim.

¶ 26. The next question then becomes whether USRP’s delay was excusable. As noted above, the report that CEF sent to USRP was simple in form and only stated a single figure labeled “sales.” The parties stipulated that the reports were done in this manner since the inception of the lease. The chancellor found that USRP was justified in accepting CEF’s payments as it had because it was entitled to expect those payments to be the correct amount. The chancellor also found that USRP was entitled to expect that CEF had submitted the correct amount of percentage rent pursuant to the express language of the lease and in good faith. We agree. There was no evidence offered that USRP understood that the rent it was receiving was based on net sales.

¶27. Even if we assume that USRP’s delay was inexcusable, CEF fails to prove any undue prejudice. By paying a percentage on a smaller sales number, CEF received a benefit. Therefore, the doctrine of laches does not bar USRP’s claim.

¶ 28. For these reasons, we find that the chancellor’s decision was supported by evidence and not manifestly wrong. The decision of the lower court is affirmed.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., BRIDGES, P.J., LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Ike KENNEDY and Edith Kennedy, Appellants v. Fred ANDERSON, Appellee.
    No. 2003-CA-01112-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Rhett R. Russell, Tupelo, attorney for appellants.
    Gary L. Carnathan, Tupelo, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. This appeal involves an easement dispute between adjoining landowners. The dominant estate owner (Anderson) brought suit in the Lee County Chancery Court complaining that the servient estate owners (The Kennedys) prevented him from using an express access easement. The Kennedys filed a counterclaim alleging that Anderson’s use of the easement damaged their property. After the hearing, the Kennedys’ motion to dismiss was denied and the chancellor dismissed their counterclaim with prejudice. The chancellor also found that neither party was damaged and enjoined each party from interfering with the rights of the other. The chancellor found that a descriptive access easement was established as to Anderson. Finally, the chancellor assessed the Ken-nedys $1,000 in attorney fees payable to Anderson. Aggrieved by this decision, the Kennedys perfected the present appeal and raise the following issues for our review:

I. WHETHER THE TRIAL COURT ERRED IN AWARDING ANDERSON A DESCRIPTIVE ACCESS EASEMENT ACROSS THE KENNEDYS’ PROPERTY SINCE THE CHAIN OF TITLE WAS INVALID

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT ANDERSON HAD STANDING TO INITIATE THE LITIGATION AT ISSUE

III. WHETHER THE TRIAL COURT ERRED IN FINDING THAT ANDERSON HAD THE BURDEN OF REPAIRING AND MAINTAINING THE EASEMENT

IV. WHETHER THE TRIAL COURT ERRED IN FINDING THAT ANDERSON HAD A RIGHT TO PARK VEHICLES AND OTHERWISE TAKE DOMINANT POSSESSION OF THE EASEMENT

V. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE KENNEDYS HAD SUFFERED NO DAMAGES

VI. WHETHER THE TRIAL COURT ERRED IN ASSESSING ATTORNEY FEES AGAINST THE KENNEDYS

VII. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE KENNEDYS’ COUNTERCLAIM WITH PREJUDICE

STATEMENT OF FACTS

¶ 2. On July 14, 1997, Ike and Edith Kennedy purchased a piece of real property from Gloria Dallas located in Lee County, Mississippi. The Kennedys’ deed stated:

ALSO: Subject to a 20 foot wide access easement being more particularly described as follows: Beginning at a point of beginning of the above description and run West 247.5 feet to paved county road; thence run North along the East side of said county road for 20.0 feet; thence run East for 267.5 feet; thence run South for 20.0 feet; thence run West for 20.0 feet to the point of beginning.

¶ 3. The Kennedys were aware that their property was subject to an express easement. The easement provided for ingress and egress from the county road to an adjacent piece of land known as the Beane property. Since the access easement was parallel and immediately adjacent to her actual driveway, Dallas allowed the owner of the Beane property to use her driveway instead of the easement. The Kennedys continued to allow this practice but soon encountered problems with a former owner of the Beane property, Charles Deloach.

¶ 4. The Kennedys claimed that Deloach was causing deep gullies in their driveway so they asked him to make the necessary repairs. After Deloach refused, the Ken-nedys informed him that he would have to use the easement to access his property. Thereafter, the Kennedys repaired their driveway, erected a fence, and constructed a drainage ditch. The fence ran parallel with the driveway and easement all the way up to the Beane property. The ditch ran parallel to the fence line.

¶ 5. In 2001, Anderson began to occupy the Beane property and resided there with his family in a mobile home. The Kenne-dys claim that the surface of the easement was in good condition when Anderson began to occupy the Beane property. The Kennedys informed Anderson that he was to use the easement instead of their driveway.

¶ 6. The area received a lot of rain and the easement became difficult to traverse. The Kennedys asked Anderson to fill the ruts and place gravel on the surface to prevent erosion but Anderson refused. Anderson claims that he was waiting until the summer to do the work.

¶ 7. Instead, Anderson asked the Kenne-dys to open the fence and allow him access to their driveway until the summer but they refused. Anderson drove a four-wheel drive truck and was able to navigate the easement. Anderson’s wife, however, testified that she could not make it all the way to their mobile home without getting her vehicle stuck in the mud so she was forced to park on a somewhat stable portion of the easement and complete her journey by foot. The Kennedys retaliated by placing no parking signs all along the easement but Anderson tore them down. The Kennedys also dug deep holes in the ground where Anderson’s wife was parking.

¶ 8. Eventually, the condition of the easement became so bad that no one could use it. Anderson and his family were forced to park near the beginning of the easement at the foot of the county road and walk the entire length of the easement to their mobile home. The Kennedys dug a deep hole at least five feet in length to prevent the Andersons from parking there as well. The Kennedys claimed that this was done solely to prevent flooding. The Kennedys are also accused of barricading the Andersons’ vehicles in the easement.

¶ 9. Anderson asked the Kennedys if he could repair the easement but they told him that he would have to submit a plan for approval. Anderson refused and ordered dirt and gravel from the county which was delivered on site. Anderson argued that he attempted to spread the dirt and gravel but Mr. Kennedy physically blocked him. Anderson also argued that Mr. Kennedy placed that same dirt and gravel directly behind the rear wheels of Anderson’s wife’s vehicle in an attempt to block her in. The Kennedys dispute this fact. They argue that he used the dirt from the holes he dug to construct “speed bumps.” Again, the Kennedys contend that the sole purpose of this act was to alleviate flooding.

¶ 10. Unfortunately, the problems between these ,two neighbors did not end here. In fact, Anderson is accused of threatening Mr. Kennedy on two occasions, mooning Mr. Kennedy, playing loud music, poisoning the Kennedys’ cedar trees, and damaging their fence. Not to be outdone, Anderson contends that Mr. Kennedy told him that he had nothing better to do with his time than to mess with Anderson. The record also reveals a picture taken by Anderson’s wife that depicts Mr. Kennedy making an obscene gesture with his middle finger. At the hearing, Mr. Kennedy stated that he was merely waving. Anderson accused Mr. Kennedy of spotlighting his mobile home at night. In addition, Anderson contends that Mr. Kennedy pointed a rifle at him and his family. Mr. Kennedy stated that the weapon was a BB gun and that he was using it to kill a cat.

¶ 11. Anderson initiated this litigation by filing a complaint in the Lee County Chancery Court. Anderson argued that Kennedy voluntarily and without cause tried to prevent him from using the express access easement. Anderson argued that these actions caused damaged to his vehicles and sought $20,000 in actual damages as well as $20,000 in punitive damages.

¶ 12. The Kennedys filed a response denying Anderson’s allegations and a counterclaim. The Kennedys argued that Anderson’s use of the easement and refusal to repair it resulted in damage to their property. The Kennedys contend that Anderson damaged their fence. The Ken-nedys also contend that Anderson’s decision to park his vehicles on the easement was an illegal attempt to take dominant possession of their property. The Kenne-dys asked for the complaint against them to be dismissed and sought $50,000 in damages.

¶ 13. At the hearing, Anderson first called Mr. Kennedy as an adverse witness. Anderson and his wife also testified. The defense tendered Mrs. Kennedy as their sole witness. At the close of evidence, the Kennedys moved to dismiss the complaint. They argued that there was a break in the chain of title, and as a result, Anderson had no standing to bring the lawsuit. The chancellor denied the Kennedys motion and also dismissed their counterclaim with prejudice.

¶ 14. .The chancellor enjoined each party from interfering with the rights of the other and found that neither party was entitled to damages. The chancellor held that a descriptive access easement was established as to Anderson. Finally, the chancellor assessed the Kennedys $1,000 in attorney fees payable to Anderson.

¶ 15. Aggrieved by this decision, the Kennedys filed a notice of appeal with the supreme court which then transferred the case to this Court. After a careful review, we reverse the chancellor’s assessment of attorney fees. The decision is affirmed in all other respects.

STANDARD OF REVIEW

¶ 16. This Court follows a limited standard of review when addressing appeals from a chancery court. Buford v. Logue, 832 So.2d 594, 600 (If 14) (Miss.Ct.App.2002). “We shall not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous, or there was an application by the chancellor of an erroneous legal standard.” Id.

LEGAL ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN AWARDING ANDERSON A DESCRIPTIVE ACCESS EASEMENT ACROSS THE KENNEDYS’ PROPERTY SINCE THE CHAIN OF TITLE WAS INVALID

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT ANDERSON HAD STANDING TO INITIATE THE LITIGATION AT ISSUE

¶ 17. Since these two issues are so closely related, we will analyze them together. The Kennedys argue that Anderson failed to prove that he was the record owner of title to the easement at issue, and as a result, has no standing to litigate this matter.

¶ 18. There is no dispute as to whether the Kennedys were aware of the fact that their property was subject to an express access easement. There is also no dispute as to whether Anderson’s deed contained language of the express access easement. Instead, the Kennedys argue that George Beane, Jr.’s wife, Melissa Beane, conveyed the Beane property without being a judicially determined heir. Consequently, the Kennedys argue that the later conveyance to Anderson is invalid.

¶ 19. When a person dies intestate his property vests immediately at death in his heirs. In Re McRight, 766 So.2d 48, 49 (¶ 10) (Miss.Ct.App.2000). More importantly, there is no requirement that a suit to establish heirship be brought. Matter of Heirship of McLeod, 506 So.2d 289, 291 (Miss.1987). Proceedings to establish heirship are only needed when there is a dispute as to the identity of a lawful heir or where a would-be heir seeks to establish his claim to the decedent’s property to the exclusion of another’s claim. Id. Finally, an easement may be acquired by express grant. Huggins v. Wright, 774 So.2d 408, 410(¶ 8) (Miss.2000).

¶ 20. The Kennedys contend that there is no proof that Melissa Beane was George Beane, Jr.’s sole heir at law. We disagree. The deed that Melissa Beane executed expressly states that she was George Beane, Jr.’s sole heir at law.

¶21. Moreover, no proof is required. As noted above, proof by way of judicial determination is only required in two circumstances. Since the Kennedys are not claiming an interest in the Beane property and not claiming to be heirs of George Beane, Jr., there is no requirement that Melissa Beane be judicially determined as the sole heir of George Beane, Jr.

¶ 22. The record reveals that in 1992, Melissa Beane executed a deed that conveyed the Beane property to Charles De-loach. Two years later, Charles Deloach executed a deed that conveyed the property to Kenny and Lisa Deloach. On March 8, 2002, Kenny and Lisa Deloach executed a deed that conveyed the property to Anderson. Anderson filed his complaint in the Lee County Chancery Court on April 22, 2002.

¶ 28. Anderson is the record owner of title to the Beane property. Included in that bundle of rights is the descriptive access easement over the Kennedys’ property. As a result, Anderson has standing in this civil action. We agree with the chancellor’s decision on this issue and find no error.

III. WHETHER THE TRIAL COURT ERRED IN NOT FINDING THAT ANDERSON HAD THE BURDEN OF REPAIRING AND MAINTAINING THE EASEMENT

¶ 24. The Kennedys argue that Anderson “never exerted any effort whatsoever to fulfill his burden of maintenance and repair.” The Kennedys argue that the chancellor erred in not recognizing this fact. Anderson argues that the chancellor did, in fact, find that he had the burden of maintenance and repair. Consequently, Anderson argues the issue is moot.

¶ 25. “Where a private right of way exists, the owners of the dominant and servient tenements must each use the way in such a manner as not to interfere with one another’s utilization thereof.” Feld v. Young Men’s Hebrew Ass’n, 208 Miss. 451, 458, 44 So.2d 538 (Miss.1950). “An easement for ingress and egress is a straightforward concept that encompasses surface use and whatever improvements and maintenance to the roadway that are necessary to permit continued travel.” Bivens v. Mobley, 724 So.2d 458, 464 (¶ 27) (Miss.Ct.App.1998). As a result, the owner of the dominant estate is entitled to work on the easement at his own expense so as to keep it reasonably usable as a road. Lindsey v. Shaw, 210 Miss. 333, 340, 49 So.2d 580, 584 (Miss.1950).

¶ 26. In his ruling, the chancellor stated the following:

[T]his man is entitled to get to and from his house. And he’s going to get there, by order of this Court. I don’t want any more obstructions constructed or erected on this easement by the defendants or their agents, employees, or anyone connected with them that would prohibit him from using this right-of-way. Or this easement is what it is. It’s not just a right-of-way, but this easement to get to and from his house.
He’ll [Anderson] be allowed to improve that easement to the extent that it becomes passable by a vehicle. And it doesn’t have to be a four-wheel drive. I’m talking about any vehicle, including a Toyota Corolla, will be allowed to go up in and out, there. And he’ll be allowed to now go on that easement and make it passable by his own actions as he desires. And the defendants will not interfere with that.

¶ 27. After reviewing these findings, we hold that the chancellor did recognize that Anderson had the burden of repairing and maintaining the easement. Despite the fact that Anderson had not completed any repair work on the easement, the chancellor found that the Kennedys’ actions constituted an unreasonable interference with Anderson’s rights as owner of the dominant estate. In other words, the Kenne-dys prevented Anderson’s attempts to carry out his duty. We find no error. This issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN FINDING THAT ANDERSON HAD A RIGHT TO PARK VEHICLES AND OTHERWISE TAKE DOMINANT POSSESSION OF THE EASEMENT

¶ 28. The Kennedys argue that they are entitled to full enjoyment of their property without interference from Anderson. The Kennedys contend that Anderson, his family, and friends repeatedly parked vehicles up and down the easement in an attempt to take dominant control of their property. Anderson acknowledged the fact that he did not have ownership of the underlying property. Rather, Anderson argues that he had no alterative than to drive his vehicle as far up the easement as he could without getting stuck and walk the rest of the way.

¶ 29. The owner of the dominant estate is authorized to make any use of the servient estate that is reasonably necessary to achieve the intended purpose of the easement. Bivens, 724 So.2d at 464 (¶ 26). After the chancellor’s ruling, counsel for the Kennedys asked whether Anderson and his family would still be allowed to park on the easement. The chancellor stated that once the easement became open and passable, there would be no further need to park vehicles on the easement itself. The chancellor also stated that if the problem did persist then the Kennedys would certainly have a right to come back to court and claim a violation of the injunction.

¶ 30. We find this to be the correct decision. This issue is without merit.

V. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE KENNEDYS HAD SUFFERED NO DAMAGES

¶31. The Kennedys argue that they are entitled to damages. In their counterclaim, the Kennedys requested damages in the amount of $50,000 for the loss of their right to full enjoyment of the property, the loss of dominant possession of their property, damage to their fence, damage to the easement itself, along with pain and suffering.

¶ 32. Damages may be recovered only where and to the extent that the evidence removes their quantum from the realm of speculation and conjecture and transports it through the twilight zone and into the daylight of reasonable certainty. Adams v. U.S. Homecrafters, Inc., 744 So.2d 736, 740 (¶ 13) (Miss.1999). In addition, damages are not recoverable where it is impossible to say what of any portion of the damages resulted from the fault of the plaintiff and what portion from the fault of the defendant themselves. Ciba-Geigy Carp. v. Murphree, 653 So .2d 857, 869 (Miss.1994).

¶ 33. At the end of the hearing, the chancellor denied damages to either party expressly finding a lack of proper proof. He found that there had been some accusations and insinuations from both parties but no evidence as to what party, if any, was responsible. Likewise, the chancellor determined that there was no value attached to any of these accusations. The evidence was simply insufficient. See Williams v. King, 860 So.2d 847, 851 (¶ 18) (Miss.Ct.App.2003).

¶ 34. We find no manifest error in the chancellor’s decision not to award damages to either party. This issue is without merit.

VI.WHETHER THE TRIAL COURT ERRED IN ASSESSING ATTORNEY FEES AGAINST THE KENNEDYS

¶35. The Kennedys argue that the chancellor erred in assessing attorney fees against them especially in light of the fact that neither party was awarded damages. The record reveals that the chancellor awarded Anderson attorney fees solely because he initiated the suit.

¶ 36. Mississippi, however, follows the American rule regarding attorney fees. Huggins, 774 So.2d at 412 (¶ 18). Unless there is a contractual provision or statutory authority providing for attorney fees, they may not be awarded as damages unless punitive damages are also proper. Id. at 412-13 (¶ 18).

¶ 37. In the instant case, there is no evidence of either a contractual provision or a statute authorizing attorney fees. Additionally, there was no award of any damages to either party much less punitive damages. As a result, we are forced to reverse the chancellor’s finding on this point.

VII. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE KENNEDYS’ COUNTERCLAIM WITH PREJUDICE

¶ 38. Finally, the Kennedys argue that the dismissal of their counterclaim with prejudice effectively bars them from bringing any future claims against Anderson. We disagree. In Rayner v. Raytheon, Co., 858 So.2d 132, 134(¶ 9) (Miss.2003), the supreme court analyzed the phrase “with prejudice.” The court held that “[generally, a dismissal with prejudice connotes an adjudication on the merits.” An adjudication on the merits is a final disposition that bars the right to bring or maintain an action on the same claim or cause. Id.

¶39. Therefore, the Kennedys cannot attempt to re-litigate the same facts and issues present in this case. However, this is no way impedes the Kennedys’ right to bring suit against Anderson for any future behavior that may give rise to a cause of action concerning the easement. That is exactly why the chancellor issued the injunction.

¶ 40. We find no error in the chancellor’s decision to dismiss the Kennedys’ counterclaim with prejudice. This final issue is without merit.

¶ 41. THE JUDGMENT OF THE CHANCERY COURT OF LEE COUNTY IS REVERSED AND RENDERED AS TO THE ASSESSMENT OF ATTORNEY FEES, AND AFFIRMED IN ALL OTHER RESPECTS. COSTS OF APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANTS AND ONE-HALF TO THE APPELLEE.

KING, C.J., BRIDGES, P.J., LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.


text:
    Ruben PINSON a/k/a Champ a/k/a Ruben Lawrence Pinson, III, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-01107-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Ruben Pinson (Pro Se).
    Office of the Attorney General by Charles W. Maris, Jackson, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. Ruben Pinson filed a motion for post-conviction relief in the Circuit Court of Calhoun County. The circuit court, without going into the merits of Pinson’s claim, denied the motion as being an impermissible second filing for relief. Pinson appeals and now requests our review of that decision.

I. DID THE TRIAL COURT ERR IN DENYING PINSON’S SUCCESSIVE MOTION FOR POST-CONVICTION RELIEF?

STATEMENT OF FACTS

¶ 2. On January 13, 1999, Ruben Pinson was indicted for aggravated assault and for two counts of the sale of marijuana. Pin-son waived the formal indictments, and an agreed motion to reduce the drug charges was granted. Pinson ultimately pled guilty to aggravated assault and to two counts of possession of marijuana with the intent to sell.

¶ 3. For the aggravated assault charge, Pinson received a twenty year suspended sentence and was placed on supervised probation for five years. For the drug charges, Pinson received a three year suspended sentence on each count and was placed on supervised probation for three years. All of the sentences were to run concurrently.

¶ 4. On January 19, 2000, Pinson violated the terms of his probation by testing positive for marijuana, by admitting to the use of marijuana and cocaine, and by failing to report to his parole officer. As a result, the trial court imposed Pinson’s earlier suspended sentences. On July 13, 2001, Pinson filed a motion for post-conviction collateral relief claiming that (1) he was subjected to double jeopardy; (2) his sentence was grossly disproportionate and amounted to cruel and unusual punishment; (3) he was denied his rights to due process; (4) he was denied his right to a speedy trial; (5) and he was denied his right to effective assistance of counsel.

¶ 5. On August 23, 2001, after reviewing Pinson’s record and the transcript from the court proceedings, the trial court denied Pinson’s petition pursuant to Mississippi Code Annotated Section 99-39-11 (Rev.2000). Pinson’s attempt to appeal that decision on January 27, 2002, was denied as being untimely. On October 3, 2002, Pinson filed a motion for trial transcripts, but the trial court denied this motion approximately two weeks later because Pinson was not a pauper and had failed to post the required court costs.

¶ 6. On March 10, 2003, Pinson filed a second motion for trial transcripts. A day later, Pinson filed a petition for writ of mandamus asking the court to compel the circuit clerk of Calhoun County to prepare his trial transcript. After that petition was dismissed, Pinson filed an application for leave to proceed in the trial court. That application was also dismissed.

¶ 7. On April 14, 2003, Pinson filed a second motion for post-conviction relief. In addition to the claims presented in the first motion, Pinson alleged that there was no waiver of the formal indictments despite the fact that he signed the written waiver and acknowledged the same in open court. Pinson also alleged that his guilty plea was invalid.

¶ 8. On May 9, 2003, the trial court denied Pinson’s second motion making note of its successive status. On May 21,

2003, Pinson filed a notice of appeal with the supreme court which then transferred the case to this Court. Finding no error, we affirm.

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING PINSON’S SUCCESSIVE MOTION FOR POST-CONVICTION RELIEF?

¶ 9. In a petition for post-conviction relief, the prisoner carries the burden of proving that his claim is not procedurally barred. Massey v. State, 843 So.2d 74, 75(¶ 7) (Miss.Ct.App.2003). “[A]ny order dismissing the prisoner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article.” Miss.Code Ann. § 99-39-23(6) (Supp.2003). We note that there are certain exceptions under this statute. However, none have been invoked by Pinson or are applicable to his case.

¶ 10. Applying this statute, we find that Pinson filed his first petition for post-conviction relief on July 13, 2001. On August 23, 2001, the trial judge ruled that it was manifest that Pinson was entitled to no relief. Pinson then failed to file a timely notice of appeal from that decision. Since the decision denying Pinson’s first petition for post-conviction relief has been left untouched, his second attempt at post-conviction relief which was filed on April 14, 2003, is barred. See Stone v. State, 872 So.2d 87, 89 (¶ 13) (Miss.Ct.App.2004).

¶ 11. In addition, all of Pinson’s claims with the exception of ineffective assistance of counsel are barred for an additional reason.

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be proeedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

Miss.Code Ann. § 99-39-21(1) (Supp.2003).

¶ 12. Pinson should have raised these issues before he pled guilty. Pinson also has failed to show any evidence of cause and actual prejudice. As a result, those rights have been effectively waived. See Battaya v. State, 861 So.2d 364, 365(¶ 4) (Miss.Ct.App.2003). We find no error.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.


author: IRVING, J.,

text:
    Frankie JONES, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-CP-00910-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.
    Frankie Jones (Pro Se).

      Office of the Attorney General by Scott Stuart, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Frankie Jones, pro se, appeals an order of the Circuit Court of Calhoun County, Mississippi denying his motion for post-conviction relief. Aggrieved by this decision, Jones perfected this appeal, raising the following issue as error: (1) whether the circuit court committed manifest error in dismissing his PCR motion.

¶ 2. Ascertaining no reversible error, we affirm.

FACTS

¶ 3. On January 20, 1998, Jones entered pleas of guilty to two separate charges of sale of cocaine, one charge of simple assault on a law enforcement officer, and one charge of escape. He was sentenced on each of the cocaine convictions to concurrent terms of fifteen years in the custody of the Mississippi Department of Corrections, with five years suspended and three years of supervised probation upon release. He was sentenced to three years on the simple assault charge and three years for the escape charge, with both of the three-year terms running concurrently with the sentences for the cocaine convictions.

¶ 4. On May 2, 2002, Jones filed a motion for production of documents seeking to obtain certain documents which he contended were necessary for him to successfully challenge the legality of the sentences discussed in the preceding paragraph. Although it is not entirely clear from the record, it appears that at some point in 2002 and prior to October 16, 2002, Jones also filed a petition to reconsider his sentences. On October 16, 2002, the circuit judge considered Jones’s motion for production of documents, treated it as a post-conviction relief motion, and denied it after finding it to be time-barred. In his ruling on the motion for production of documents, the circuit judge did not mention Jones’s motion to reconsider sentencing order.

¶ 5. On October 30, 2002, Jones filed a notice of appeal of the October 16, 2002 order denying, as time-barred, his motion for production of documents which the circuit judge treated as a post-conviction relief motion.

¶ 6. On March 28, 2003, Jones filed a motion to vacate what he labeled as illegal portions of the state court sentences. On April 11, 2003, the circuit court summarily denied the requested relief, finding that the motion was time-barred as well as a successive motion for post-conviction relief.

¶ 7. On April 22, 2003, the appeal initiated by Jones on October 30, 2002, was dismissed pursuant to his motion to dismiss, and the instant appeal was filed on April 23, 2003, seeking redress of the circuit judge’s April 11 ruling denying Jones’s motion to vacate illegal portions of state court sentences.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 8. Jones argues that the circuit court gave him an illegal sentence by including a period of suspended time and a period of post-release probation in his sentence, Citing Mississippi Code Annotated section 47-7-33(1) (Rev.2000), Jones claims that the circuit court was prohibited from suspending any portion of his sentence or imposing probation upon him because he was already a convicted felon. He concludes that such sentencing by the circuit court was plain error and asks that the suspended and probationary periods of his sentence be set aside.

¶ 9. As noted earlier in this opinion, Jones initially filed, on May 2, 2002, a motion for production of documents which he contended were a prerequisite to his being able to successfully challenge his sentences which were given him on January 20, 1998. In his initial motion, Jones said he expected to raise the propriety of the sentences at an evidentiary hearing, but he did not give any specifics as to why he believed his sentences were improper. No evidentiary hearing was ever held. Then, on March 28, 2003, in his motion to vacate illegal portions of the state court sentences, Jones gave the specifics as to why he believed his sentences were improper.

¶ 10. Clearly, Jones’s initial motion for production of documents and his motion to vacate portions of state court sentences were filed well beyond the three-year time period mandated by Mississippi Code Annotated section 99-39-5(2) (Rev.2000). This tardy filing was the sole basis for the circuit judge’s decision dismissing Jones’s first motion and was one of two bases for dismissing Jones’s second motion.

¶ 11. However, Jones, citing Ivy v. State, 731 So.2d 601, 603(¶ 13) (Miss.1999), argues that “errors affecting fundamental constitutional rights, such as the right to a legal sentence, may be excepted from procedural bars which would otherwise prevent their consideration.” We, therefore, review the merits of Jones’s allegations that the suspended portion of the sentences, which he received on January 20, 1998, were illegal because he was, at the time of the sentences, a prior convicted felon.

¶ 12. Jones is correct in his assertion that no portion of his 1998 sentences for the sale of cocaine should have been suspended since he, at that time, was a prior convicted felon. Miss.Code Ann. § 47-7-33(1) (Rev.2000). However, we have held that a defendant “cannot stand mute when he is handed an illegal sentence which is more favorable than what the legal sentence would have been, reap the favorable benefits of that illegal sentence, and later claim to have been prejudiced as a result thereof.” Graves v. State, 822 So.2d 1089, 1091(118) (Miss.Ct.App.2002), cert. granted, 829 So.2d 1245, cert. dismissed as improvidently granted (May 1, 2003) (citing McGleachie v. State, 800 So.2d 561(¶ 4) (Miss.Ct.App.2001)).

¶ 13. We find no compelling reason to revisit our holdings in Graves and McGlea-chie. Therefore, we affirm the circuit judge’s denial of Jones’s motion to vacate portions of Jones’s sentences.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF CALHOUN COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.

KING, C.J., BRIDGES, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.

      . We were unable to find a filed copy of the petition in the record. However, the record contains an unfiled copy of the petition, dated and notarized on March 29, 2002, and a copy of a letter, dated August 7, 2002, from Jones to the Circuit Clerk of Calhoun County. The letter was marked filed on August 9, 2002. Attached to the letter was a notice seeking a hearing on the petition to reconsider the sentencing order. The notice indicated that the petition to reconsider the sentencing order was filed on May 6, 2002.


author: BRIDGES, P.J.,

text:
    William Henry CLAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-00631-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      Michael R. Farrow, Columbus, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   BRIDGES, P.J.,

for the Court.

¶ 1. William Henry Clay was convicted of both grand larceny and recidivism by the Circuit Court of Lowndes County, Mississippi. Clay was sentenced to life in prison without parole and appeals on the following issues:

STATEMENT OF THE ISSUES

I. DID THE STATE UNLAWFULLY AND SYSTEMATICALLY EXCLUDE MEMBERS OF THE DEFENDANT’S RACE FROM THE VENIRE WITH ITS PEREMPTORY STRIKES?

II. WAS JURY INSTRUCTION S-3A AN INCORRECT STATEMENT OF LAW?

III. DID THE COURT IMPROPERLY ADMIT EVIDENCE OF THE DEFENDANT’S PREVIOUS CONVICTIONS DURING THE SENTENCING PHASE OF THE TRIAL?

IV. WAS THE SENTENCE OF “LIFE WITHOUT PAROLE” GROSSLY DISPROPORTIONATE TO THE OFFENSE OF GRAND LARCENY?

FACTS

¶ 2. At about 1:30 p.m. on New Year’s Eve, 2001, tools were stolen with an approximate value of $250 from a tool box in the back of Richard Childress’ truck. Childress, a contractor, was parked at Lowes’ Building Supply in Columbus, Lowndes County, Mississippi, at the time and the dual tool box in the rear of his truck contained the tools necessary for his trade.

¶ 3. A prosecution eyewitness testified that he saw two black men get out of a brown van and jointly load the tools from the truck to the van. A Lowndes County deputy sheriff was alerted and later two black men in a brown van were picked up. Clay was the passenger in this van. Clay admitted that he was in the car when the driver pulled along side Childress’ truck and took the tools and threw them in the van himself without help. Clay also testified that he was drunk on corn whiskey at the time the tools were stolen, but no arresting officers detected alcohol on his breath.

¶ 4. During jury selection, the prosecution used its four peremptory strikes to remove four prospective jurors who all happened to be black. Clay objected that the prosecution was systematically removing black jurors, but the trial judge supported the State’s race-neutral justifications for the strikes. After the jury found Clay guilty, he was held to be an habitual offender and the judge considered his “pri- or violent criminal history” when sentencing him.

ANALYSIS

I. DID THE STATE UNLAWFULLY AND SYSTEMATICALLY EXCLUDE MEMBERS OF THE DEFENDANT’S RACE FROM THE VENIRE WITH ITS PEREMPTORY STRIKES?

¶ 5. In considering the first issue, Clay, who is a black male, claims that the State used all four of its peremptory challenges to exclude prospective black jurors. Clay also contends the race-neutral reasons supplied by the State in excusing these four potential black jurors were inadequate and incorrect, and no outside proof was offered to substantiate the reasons. Our standard of review requires a reversal only if the factual findings of the trial judge are “clearly erroneous or against the overwhelming weight of the evidence.” Tanner v. State, 764 So.2d 385 (¶ 14) (Miss.2000). Any determination made by a trial judge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), is accorded great deference because it is “based, in a large part, on credibility.” Coleman v. State, 697 So.2d 777, 785 (Miss.1997). The term “great deference” has been defined in the Batson context as meaning an insulation from appellate reversal of any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987).

¶ 6. The Batson decision provides procedural directives for the trial court to follow in detecting and disallowing the practice of using peremptory challenges to remove members of an identified racial group from jury service based upon nothing more than their racial identity. To successfully assert a Batson claim, the following procedure must occur:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

Berry v. State, 728 So.2d 568 (¶ 11) (Miss.1999) (citing Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). “When the prosecution gives race-neutral reasons for its peremptory strikes, the sufficiency of the defendant’s prima facie case becomes moot.” Manning v. State, 735 So.2d 323 (¶ 28) (Miss.1999). Furthermore, if the defendant offers no rebuttal, the trial court may base its decision solely on those reasons given by the prosecution. Id. at (¶ 29).

¶ 7. In following proper procedure, Clay objected to the State’s exercising its peremptory challenges against prospective black jurors. The judge noted that all of the State’s strikes were against African-Americans and ruled that Clay had made a prima facie case. The prosecution then proceeded with its racially-neutral reasons for doing so, as required by Batson.

¶ 8. The prosecution’s first peremptory challenge was exercised against juror number twenty-two, Willie B. Nance. The prosecution stated that it had prosecuted many defendants and convicted several in the area with the last name Nance. After hearing these reasons the judge recalled hearing two cases of a person named Nance being prosecuted and found that this was a race-neutral justification for the exercise of the peremptory strike.

¶ 9. The second peremptory challenge was used against juror number twenty-four, Melissa Randle. The prosecution stated that its reasoning for striking Randle was the same as before, that it had prosecuted many Randles and that Ms. Randle had not answered the jury questionnaire about her family. The judge then requested the names and numbers of Randles prosecuted by the district attorney’s office but the question could not be answered sufficiently. The judge ruled the reason was sufficiently race neutral to survive a Batson challenge, but that he could not rule on the reason’s truthfulness.

¶ 10. The third peremptory challenge was used against juror number thirty-five, Travis Ledbetter. The prosecution again mentioned a previous prosecution of a Ledbetter, specifically Charles Ledbet-ter. Apparently, Charles is an infamous character to the judge because during Charles’ prosecution he made accusations against the judicial system, the district attorney’s office and the court. Charles and Travis are related and the judge quickly ruled this was a race-neutral strike.

¶ 11. The fourth and final peremptory challenge was used to strike juror number forty-two, Marie Hairston. The prosecution struck her because she was currently unemployed, it had prosecuted persons with her last name before, and she had failed to answer the question on her family when asked in the questionnaire. The judge found that the juror being unemployed was a sufficient race-neutral reason to strike Ms. Hairston.

¶ 12. We find the factual findings of the trial judge were not clearly erroneous or against the overwhelming weight of the evidence and that Clay presented insufficient evidence that the trial judge acted erroneously in allowing the prosecution’s peremptory challenges to stand; thus, this issue is without merit.

II. WAS JURY INSTRUCTION S-3A AN INCORRECT STATEMENT OF LAW?

¶ 13. Jury instruction S-3A omitted the requirement that the jury find the value of the tools to be more than $250. Clay argues that it is the responsibility of the judge to see the jury is instructed properly. Duvall v. State, 634 So.2d 524, 526 (Miss.1994). The record reflects that no objection to this instruction was made during the trial and therefore appeal of this issue is barred. Id.

III. DID THE COURT IMPROPERLY ADMIT EVIDENCE OF THE DEFENDANT’S PREVIOUS CONVICTIONS DURING THE SENTENCING PHASE OF THE TRIAL?

¶ 14. After the jury returned the guilty verdict, the court then had a hearing and the State offered testimony as to whether Clay should be sentenced as an habitual offender. The State offered the testimony of Louis Stafford, a probation and parole officer. Clay in his appeal argues that the State proved the prior convictions of a “William Clay” but never “William Henry Clay.” The documents offered by the State regarding prior attempted rape and manslaughter convictions did only refer to “William Clay.” However, in testimony Stafford and the State referred to Clay with all three names.

¶ 15. The record does not reflect that Clay objected to either the testimony or the documents when given and entered into evidence. A contemporaneous objection is required in order to preserve an error for appeal. Caston v. State, 828 So.2d 473 (¶ 102) (Miss.2002). This issue is without merit.

IV. WAS THE SENTENCE OF “LIFE WITHOUT PAROLE” GROSSLY DISPROPORTIONATE TO THE OFFENSE OF GRAND LARCENY?

¶ 16. The crime of grand larceny carries a maximum of five years imprisonment. Miss. Code Ann. § 99-17-41 (Rev.2000). Considering Clay’s prior convictions for attempted rape in 1975 and for manslaughter in 1980, the judge conducted a proportionality review and sentenced Clay to life imprisonment without the possibility of parole. “[A] trial court will not be held in error or held to have abused [its] discretion if the sentence imposed is within the limits fixed by statute.” Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984) (citations omitted).

¶ 17. Mississippi Code Annotated section 99-19-83 (Rev.2000), sentencing of habitual criminals to life imprisonment, reads as follows:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

(Emphasis added)

¶ 18. The prior convictions of Clay meet the requirements of this statute and we find that the trial judge did not go beyond the required sentencing. Therefore this Court finds the trial judge was correct in his sentencing and this issue is without merit.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF CONVICTION OF GRAND LARCENY AND SENTENCE OF LIFE WITHOUT PAROLE AS AN HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

KING, C.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.


text:
    W & W CONTRACTORS, INC., Appellant v. TUNICA COUNTY AIRPORT COMMISSION, Appellee.
    No. 2003-CA-01801-COA.
    Court of Appeals of Mississippi.
    Aug. 24, 2004.

      H. Scot Spragins, Dion Jeffery Shanley, Oxford, attorneys for appellant.
    Andrew T. Dulaney, Tunica, attorney for appellee.
   MYERS, J.,

for the Court.

¶ 1. W & W Contractors, Inc. (W&W) appeals from an order of the Circuit Court of Tunica County, Mississippi which affirmed the decision of the Tunica County Airport Commission (Commission) to award a contract to Cobb Land Development (Cobb). On appeal, W&W asks this Court to reverse the order of the circuit court and void the contract between the Commission and Cobb and award W&W monetary damages of the difference between its bid and Cobb’s bid for the project. W&W raises three issues on appeal for this Court’s consideration.

ISSUES PRESENTED

I. Whether the Commission’s decision to award the bid to Cobb was arbitrary and capricious because the Commission completely disregarded contractual provisions governing the form and substance of responsive bids and authorized post bid modifications by Cobb?

II. Whether the Commission’s award to Cobb was an action beyond the agency’s scope or powers because it did not have legal authority to amend the contract after sealed bids were submitted?

III. Whether the Commission’s award of the contract to Cobb was contrary to Mississippi law because Cobb failed to possess a Certificate of Responsibility for one or more major classifications and therefore did not comply with regulations regarding certification?

STATEMENT OF FACTS

¶ 2. In August 2000, the Commission advertised for sealed bids in connection with a site preparation contract. W&W and Cobb along with eight other contractors submitted bids for the project. The last paragraph of the “Notice to Contractors” contained the following provision:

The award, if made, will be made to the party submitting the bid deemed most favorable to the TUNICA COUNTY AIRPORT COMMISSION at the time the conditions are stipulated. The TU-NICA COUNTY AIRPORT COMMISSION reserves the right to reject any and all bids and to waive any informalities or irregularities in the bids received.

¶ 3. On September 8, 2000, the Commission received bids. W&W submitted a bid that totaled $4,319,279.20. Cobb did not state a figure for the total base bid. After all bids were taken under advisement by the Commission, several problems arose with Cobb’s bid.

¶4. The first issue which arose concerned the unit price for fencing which was pay item #33 on the bid sheet. Cobb provided the price of “eight hundred seventy-five” written in words but had “8.75” written in numbers. The second issue concerned the Disadvantage Business Enterprise (DBE) Plan requirements of the Commission. Cobb failed to list qualified DBEs to perform 9.15% of the total project as required by Commission guidelines. Also, Cobb listed itself as a DBE when in fact it was not. On October 2, 2000, Cobb amended its bid materials and complied with the Commission’s requirements by submitting a list of certified DBEs it planned to use as subcontractors.

¶ 5. Due to the irregularities in Cobb’s bid, the Commission sought an opinion from the Attorney General. On October 6, 2000, the Attorney General issued his official opinion to the Commission which states in pertinent part: “However, if the Commission determines that Cobb’s actual intended bid is, in fact, evident on the face of the bid, and the Commission finds that any irregularity does not give Cobb an advantage over other bidders, then the Commission may waive the irregularity and accept the Cobb bid.” Considering the Attorney General’s opinion, on October 16, 2000, the Commission accepted Cobb’s bid and awarded it the contract. W & W appealed the decision of the Commission to the Circuit Court of Tunica County on October 24, 2000. A hearing was conducted on April 29, 2003, and the circuit court affirmed the decision of the Commission on July 28, 2003. W & W timely perfected its appeal to this Court following the order.

LEGAL ANALYSIS

¶ 6. W & W argues that the decision of the Commission should be reversed because the decision was arbitrary and capricious, and the Commission acted beyond its powers and violated statutory provisions and W & W’s rights. We apply the same standard of review to the decision of the-Commission as we apply to our review of administrative agency decisions. Falco Lime Inc. v. Mayor and Aldermen of the City of Vicksburg, 836 So.2d 711, 721 (¶ 42) (Miss.2002). We must uphold the decision unless it was “unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Id. (quoting Bd. of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996)).

I. WHETHER THE COMMISSION’S DECISION TO AWARD THE BID TO COBB WAS ARBITRARY AND CAPRICIOUS BECAUSE THE COMMISSION COMPLETELY DISREGARDED CONTRACTUAL PROVISIONS GOVERNING THE FORM AND SUBSTANCE OF RESPONSIVE BIDS AND AUTHORIZED POST BID MODIFICATIONS BY COBB?

¶ 7. As its first point of error, W & W cites two instances where the Commission allowed Cobb to modify its bid post submission, the unit price for fencing and the DBE requirement. As evinced from the bid sheet, Cobb did not submit a total base bid. The column was left blank. All other bidders included a total. There was also a discrepancy in Cobb’s bid concerning the unit price for security fencing. In words, Cobb provided the price as “eight hundred seventy-five” but in numbers Cobb provided “8.75.” The bidders were provided requirements of the project prior to bidding and one specification read, “Unit prices are lump sum prices provided in both words and figures. In case of discrepancy, the amount shown in words shall govern.” W & W argues that using Cobb’s amounts as stated in words, Cobb’s total bid would have been- $7,223,827 and not the lowest bid.

¶ 8. Upon opening the bids, the Commission discovered the discrepancy in Cobb’s bid. ' Based on this, the Commission sought an opinion of the Attorney General on whether the' irregularity could be waived and the contract awarded to Cobb based on the bid. The Attorney General informed the Commission that if it determined that the actual intended bid was evident from the face of the document and that the irregularity did not give Cobb an advantage over other bidders, the Commission could waive the irregularity and accept Cobb’s bid. The Commission considered the opinion and compared Cobb’s figure to those submitted by other bidders. If the Commission interpreted the unit price in words, the price would be over $800 a foot more than any other bidder. The numerical value, however, placed Cobb in line with other bidders on the price for fencing.

¶ 9. The Commission waived the irregularity and interpreted Cobb’s unit price for fencing as $8.75 per foot. W & W labels this action by the Commission an erroneous post-submission modification. W & W cites the case of Hemphill v. City of Laurel, 760 So.2d 720 (Miss.2000), as authority on this point. The Commission distinguishes Hemphill and argues that it simply interpreted the bid in light of its most logical meaning and fulfilled its obligations to the taxpayers of Tunica County by awarding the contract to the lowest bidder.

¶ 10. • In Hemphill, the supreme court stated that the city had overstepped its authority by allowing a bidder to amend its bid causing an increase after the bids were open. The court stated, “Our -holding is that the relevant public bid laws do not allow a governing party to accept a bid price increase after sealed bids are opened except where the error and the intended correct bid are evidenced on the face of the bid document.” Hemphill, 760 So.2d at 724 (¶ 20). As the circuit court held, the facts of this case are, completely opposite of Hemphill. Here, the Commission was not allowing Cobb to amend or modify its unit pricing but rather was interpreting the correct price for the fencing. Also, the interpretation of numbers over words resulted in a decrease in bid amount, not an increase. The actions of the Commission were appropriate because the error and the correct bid amount were evidenced on the face of the bid document. Allowing Cobb’s unit price to be accepted as $8.75 per foot instead of $875 per foot did not give Cobb , a competitive advantage nor did it freeze out the other bidders as W & W suggests. It allowed the Commission to make a determination on the correct price for fencing per foot submitted in Cobb’s bid.

¶ 11. W & W also cites error with the Commission’s allowing Cobb to supplement its bid to include subcontractors in order to comply with Tunica County’s DBE program. In order to qualify for federal funding, Tunica County adopted a program that requires that a percentage of contracts be awarded to DBEs. The Commission’s minimum DBE requirement for the contract was 9.15% of the project work. W & W argues that Cobb’s initial bid was' false and misleading because Cobb listed itself as a qualified DBE firm and did not include DBE subcontractors. According to Mississippi Department of Transportation records, Cobb was not a qualified DBE at the time it submitted the bid.

¶ 12. Section 26.53 of the Commission’s DBE Plan is entitled Good Faith Efforts and outlines the requirements of the plan as meeting the goal or evidencing good faith efforts to meet the goal. The plan contains the following provisions:

A. INFORMATION TO BE SUBMITTED
Each solicitation for which a contract goal has been established will require the bidders/offerors to submit the following information at the time of the bid:
1. The names and addresses of DBE firms that will participate in the contract;
2. A description of the work that each DBE will perform;
3. The dollar amount of the participation of each DBE firm participation;
4. Written and signed documentation of commitment to use a DBE subcontractor whose participation it submits to meet a contract goal;
5. Written and signed confirmation from the DBE that it is participating in the contract as provided in the prime contractor’s commitment; and
6. If the contract goal is not met, evidence of good faith efforts.
B. DEMONSTRATION OF GOOD FAITH EFFORTS
The obligation of the bidder/offeror is to make good faith efforts. The bidder/of-feror can demonstrate that it has been done so either by meeting the contract goal or documenting good faith efforts.

¶ 13. The site preparation contract that Cobb submitted initially included five subcontractors. A review of MDOT records indicates that two out of the five were qualified DBEs. Cobb submitted that it would meet the DBE requirements and later supplemented the listing with additional DBE firms who would complete the contract.

¶ 14. The decision of the Commission to allow Cobb to supplement its bid and provide additional information on DBE contractors was appropriate. The Commission found that this action would not adversely effect the other bidders. By realizing its error and supplementing its bid, Cobb was making a good faith effprt to comply with DBE requirements as promised in its site preparation contract. The decision of the Commission to award the bid to Cobb was not arbitrary or capricious.

II. WHETHER THE COMMISSION’S AWARD TO COBB WAS AN ACTION BEYOND THE AGENCY’S POWER BECAUSE IT DID NOT ■■■ HAVE LEGAL AUTHORITY TO ALLOW AN AMENDMENT AFTER SEALED BIDS WERE SUBMITTED?

¶'15. W & W argues that the Commission’s award to Cobb was an action beyond its power because the Commission did not have the legal authority to allow an amendment after sealed bids were submitted. W & W contends that nothing in the applicable statutes governing public project bidding authorizes a governing body to allow- amendments of a bid post opening. W & W does not indicate in its brief what amendment it finds as unsupported by law. The Commission’s action of interpreting the unit-price for the fence as $8.75 per foot was not an amendment to the bid but a waiver by the Commission of discrepancies in Cobb’s bid. This action was proper as the irregularity was evinced from the bid document and the waiver did not give Cobb a competitive advantage over the other .bidders.

' ¶ 16. Cobb was allowed to supplement its list of DBE subcontractors in order to comply with Commission requirements. Governing authorities have considerable discretion when awarding public contracts. Hemphill, 760 So.2d at 723 (ÍI13). The discretion exists only where it is supported by statute.' Id. The law regarding public contracts requires “competitive sealed bids.” “The purpose of the law is to protect the public by promoting competition so as to prevent fraud, favoritism and the like.” Id. at 724 (¶ 16).

¶ 17. In Hemphill, the court held that the Commission could not accept amendments that would increase the bid price after sealed bids had been opened except where the error and the intended correct bid are evident on the face of the bid document. Id. at 724 (¶ 20). The supplement submitted by Cobb regarding the DBEs bore no relation to economic provisions in the bid such as price which could effect the competitiveness of sealed bids, an action that the court in Hemphill sought to alleviate. The Commission was not acting outside its powers by ensuring that Cobb was a responsible bidder and could comply with the 9.15 % DBE requirement.

III. WHETHER THE COMMISSION’S AWARD OF THE CONTRACT TO COBB WAS CONTRARY TO MISSISSIPPI LAW BECAUSE COBB FAILED TO POSSESS A CERTIFICATE OF RESPONSIBILITY FOR ONE OR MORE MAJOR CLASSIFICATIONS AND THEREFORE DID NOT COMPLY WITH REGULATIONS REGARDING CERTIFICATION?

¶ 18. Mississippi Code Annotated Section 31-3-15 (Rev.2000) states the following:

No contract for public or private projects shall be issued or awarded to any contractor who did not have a current certificate of responsibility issued by said board at the time of the submission of the bid, or a similar certificate issued by a similar board of another state which recognizes certificates issued by said board. Any contract issued or awarded in violation of this section shall be null and void.

¶ 19. Further, Section 31-3-21(1) (Rev. 2000) requires that all bids submitted must have the certificate of responsibility number appearing on the exterior of the bid envelope. Also, the statute makes it a misdemeanor for anyone to knowingly and willfully submit a bid for projects without holding a certificate of responsibility number. Miss.Code Ann. § 31-3-21(1) (Rev/ 2000).

¶ 20. W & W argues that Cobb did not have certificates of responsibility for the major classifications required for the performance of the contract. W & W distinguishes between “major” classifications and “special” classifications. Both parties agree that Cobb listed its certificate of responsibility number on the outside of its bid envelope. The Commission argues that it in good faith believed that Cobb possessed the requisite certificate to complete the project. Cobb’s envelope is not contained in the record for our review thus preventing this Court from considering the adequacy of Cobb’s certificates. Cobb submitted certificate numbers on its bid envelope but because the record does not contain adequate information on Cobb’s certificates submitted to the Commission on the project in question, this Court will not consider whether or not Cobb was qualified to perform project work.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY AFFIRMING THE DECISION OF THE TUNICA COUNTY AIRPORT COMMISSION IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ, NOT PARTICIPATING.


author: CHANDLER, J.,

text:
    Randall Gerard MAGRUDER, Appellant, v. Troy Ann Duba MAGRUDER, Appellee.
    No. 2003-CA-01890-COA.
    Court of Appeals of Mississippi.
    Aug. 31, 2004.
    Richard C. Fitzpatrick, Poplarville, attorney for appellant.
    Nathan S. Farmer, Picayune, attorney for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. This appeal arises from a July 22, 2003 order of. the Pearl River County Chancery Court addressing custody and child support matters concerning the children of Randall and Troy Magruder. Randall Magruder was awarded primary physical custody of the couple’s two minor sons, and Troy Magruder, primary physical custody of their minor daughter. Randall Magruder now complains that the support he is required to pay for his daughter’s benefit exceeds the amount specified by the Child Support Award Guidelines set forth in Mississippi Code Annotated Section 43-19-101 (Rev.2000). Based on the record before us, we find that the award of $500 per month was within the child support guidelines. Accordingly, we find no error and affirm the chancellor’s decision.

FACTS

¶2. Randall Gerard Magruder (Randy) and Troy Ann Duba Magruder (Troy) were granted a divorce on grounds of irreconcilable differences by the Pearl River County Chancery Court on May 27, 2003. By an agreement reached on January 30, 2003 and ratified by the May 2003 judgment of divorce, temporary custody arrangements and support obligations were determined for the three children born of the marriage. Randy was given custody of thirteen-year-old Jay Carstens Magruder, who had expressed a preference for living with his father. Troy was given custody of the two younger children, eleven-year-old Everett Louis Magruder and six-year-old Shannon Nicole Magruder. Randy was ordered to pay child support in the amount of $700 per month for the benefit of Everett and Shannon.

¶3. On June 20, 2003, a hearing was held to determine permanent custody of the children. The chancellor found that Everett would be more comfortable living with his older brother and would benefit from the relationship with him. Both boys also had expressed a preference to live with their father. Based on her age and gender, the chancellor found that Shannon would be happier with her mother. Randy, therefore, was given primary physical custody of the two boys and Troy was awarded primary physical custody of Shannon. The chancellor further reduced Randy’s child support obligation to $500 per month.

¶ 4. Randy was ordered to maintain health insurance for all three children. The parties were found equally responsible for any and all expenses not covered by insurance. Both Randy and Troy further were ordered to share equally the expenses of the children’s travel between Mississippi and Montana, where Troy voluntarily had relocated, for visitation as specified in the July 23, 2003 order modifying custody.

¶ 5. At the time of these proceedings, Randy was employed by Honeywell, Inc. in Baton Rouge, Louisiana. In 2002, his gross income was $65,712.91. Troy was living in Lolo, Montana, and working at KT’s Hayloft Saloon. She reported gross earnings of $14,113 for 2002.

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED IN ORDERING CHILD SUPPORT PAYMENTS IN EXCESS OF THE AMOUNT REQUIRED BY THE CHILD SUPPORT AWARD GUIDELINES

¶ 6. In the July 21, 2003 order modifying custody, the chancellor reduced the amount of child support Randy was required to pay from $700 per month for two children to $500 per month for one child. The chancellor stated that “[tjhis amount is over the recommended guidelines for one child; this Court finds that due to the disparity in each spouse’s income, the amount is proper to support the minor child.” Randy contends that the chancellor failed to make specific findings concerning the children’s needs or his actual income. He further asserts that he is entitled to an offset and/or .support payments from Troy to provide for Jay and Everett, thus reducing his support obligation to Shannon. Troy, however, asserts that the chancellor’s award is well within the child support guidelines and that neither the statutes nor the caselaw mandate the reductions or offsets Randy seeks.

¶ 7. Mississippi Code Annotated Section 43-19-101(Rev.2000) provides that the child support guidelines set forth therein shall be a rebuttable presumption regarding the amount of the award or modification of child support. Miss.Code Ann. § 43-19-101(1) (Rev.2000). These guidelines apply “unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.” Miss.Code Ann. § 43-19-101(2) (Rev.2000). However, “these are guidelines and not absolute rules.” Wright v. Stanley, 700 So.2d 274, 282 (Miss.1997); Thurman v. Thurman, 559 So.2d 1014, 1017-18 (Miss.1990).

¶ 8. For one child, the child support guidelines provide that fourteen percent of the non-custodial parent’s adjusted gross income should be awarded for child support. Miss.Code Ann. § 43-19-101(1). “Adjusted gross income” is calculated by determining all sources of income available to the non-custodial parent and subtracting from that amount “the following legally mandated deductions: (i) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction; (ii) Social security contributions; [and] (iii) Retirement and disability contributions except any voluntary retirement and disability contributions.” Miss.Code Ann. § 43-19 — 101(3)(b) (Rev.2000). Randy’s annual gross income for 2002 was $65,712.91. Subtracting the legally mandated deductions of $12,861.80 for federal; state and local taxes, and $4,938.58 for Social Security and Medicare contributions, Randy’s annual adjusted gross income for 2002 was $47,912.53. Applying the fourteen percent guideline to Randy’s monthly adjusted gross income of $3,992.71, his monthly child support obligation for one child is $558.98.

¶ 9. Randy’s monthly adjusted gross income is nearly four times Troy’s. Based on the disparity in their incomes, the chanr cellor found that $500 was an appropriate level of support for Randy to provide for his daughter. Randy, nevertheless, contends that. Troy owes him support for Everett and Jay. He therefore asserts that the chancellor should have given him a credit or offset for the two children living with him.

¶ 10. Randy proposes two alternative applications of the statutory guidelines to provide .the relief he seeks. First, he asserts that Troy is obligated to contribute twenty percent of her adjusted gross monthly income of $1,049.60 toward the support of the two boys living with him. Applying the statutory twenty percent guideline for two children, Randy suggests that he is entitled to payment in the form of an offset of $209.92 against his statutory obligation to Shannon of $558.98, resulting in monthly child support of only $349.06.

¶ 11. In the alternative, Randy proposes a deduction of twenty percent or $9,582.51 from his adjusted gross income for the two children living with him, leaving him with what he terms an “adjusted annual AGI” of $38,330.02.or $3,194.16 per month. Application of the fourteen percent guideline to that figure would yield a monthly support obligation to Shannon of $447.18. Randy further would apply the same formula to Troy’s annual adjusted gross income of $14,113, allowing her a fourteen percent or $1,763.32 deduction for the one child living with her and leaving her with an “adjusted annual AGI” of $10,831.83 or $902.65 per month. Based on these figures, Randy asserts that Troy is obligated to provide support for the two boys in the amount of $180.53, or twenty percent of her “adjusted AGI.” Using Randy’s offset approach, his support obligation to Shannon thus would be reduced to $264.65 per month.

¶ 12. We disagree with Randy. The statute provides for only three mandatory adjustments to gross income: taxes, social security and non-voluntary retirement and disability contributions. Miss. Code Ann. § 43 — 19—101(3)(b). Mississippi Code Annotated Section 43-19-101(3)(d) (Rev.2000), on which Randy relies, does not require the chancellor to make an adjustment to gross income for children living with the parent ordered to pay child support. The statute provides only that “[i]f the absent parent is also the parent of another child or other children residing with him, then the court may subtract an amount that it deems appropriate to account for the needs of said child or children.” Miss.Code Ann. § 43 — 19—101(3)(d) (Rev.2000) (emphasis added). Whether such adjustment is made and the amount of any such adjustment “is clearly left up to the discretion of the chancellor and is not a mandatory provision of the statute.” McClee v. Simmons, 834 So.2d 61, 65 (¶ 14) (Miss.2002); Bailey v. Bailey, 724 So.2d 335, 338 (¶ 11) (Miss.1998). Thus, even in those instances where an adjustment may be warranted, the statute does not reference the percentages enumerated in the child support guidelines; rather, it is within the chancellor’s discretion to determine an amount appropriate to the needs of the child or children.

¶ 13. There further is no merit to Randy’s assertion that he is entitled to support from Troy for Everett and Jay. He suggests that this Court’s decision in Brawley v. Brawley, 734 So.2d 237 (Miss.Ct.App.1999) impliedly acknowledged that offsetting one parent’s support obligations against those of the other is appropriate where the children of the marriage are divided between the parents. Randy’s reliance on Brawley is misplaced. Child support was not raised as an issue in Brawley. In its recitation of lower court proceedings, the opinion notes only that the father’s support obligations to one of the two children was suspended after he was given full custody of the child. Id. at 239 (¶ 3). Mere mention of a procedural fact, we note, is not a statement of the law.

¶ 14. “[WJhere proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each.” Miss.Code Ann. § 93-5-23 (Supp.2003) (emphasis added). Moreover, the “[cjhancellor should consider the reasonable needs of the child as well as the financial resources and reasonable needs of each parent.” Vaughn v. Vaughn, 798 So.2d 431, 434-35 (¶ 13) (Miss.2001); Cupit v. Cupit, 559 So.2d 1035, 1037 (Miss.1990). In finding that the amount awarded was proper to meet Shannon’s needs, the chancellor considered the disparity in income between Randy and Troy. Given the reasonable needs of the three children, as well as the reasonable needs and financial resources of Randy and Troy, the chancellor did not abuse his discretion by not requiring Troy to provide support for Everett and Jay.

¶ 15. We note with approval the chancellor’s provision for health insurance coverage. As amended effective July 1, 2004, § 43-19-101 requires the chancellor, to make provision in the judgment for insurance coverage in a manner which is in the best interests of the children. 2004 Miss. Laws Ch. 582.. The revised statute further provides that “[i]f the court requires the custodial parent to obtain the- coverage then its cost shall be taken into account.in establishing the child support award.” Id. As Troy suggests, the $58.98 difference between the statutory guideline figure of $558.98 and the $500 awarded by the chancellor amounts to $707.76 per year and could be considered a contribution to the health insurance coverage Randy is required to provide for the three children. Since Randy is the custodial parent of two of the three children, Troy’s interpretation is consistent with the requirements of the amended statute.

¶ 16. The chancellor’s award of $500 in child support for Shannon Magruder is well within the guidelines specified in Mississippi Code Annotated Section 43-19-101. The chancellor, therefore, was not required to make any more specific findings on the record. Miss.Code Ann. § 43-19-101(3). Moreover, we find no basis for Randy’s proposition that the chancellor should have deviated from the guidelines to provide a credit for the two children living with him.

¶ 17. Our standard of review in domestic relations cases is well-established:

[Appellate courts apply] the familiar substantial evidence/manifest error rule. [We] will not disturb the findings of a chancellor unless the chancellor was manifestly wrong, clearly erroneous or an erroneous legal standard was applied. This is particularly true in the areas of divorce, alimony and child support. The word “manifest,” as defined in this context, means “unmistakable, clear, plain, or indisputable.”

Mosley v. Atterberry, 819 So.2d 1268, 1272 (¶ 16) (Miss.2002) (quoting Mosley v. Mosley, 784 So.2d 901(¶ 7) (Miss.2001) (internal citations omitted)). Because the chancellor’s findings were not unmistakably wrong and the correct legal standard was applied, we affirm the chancellor’s finding that Randy was obligated to provide child support for Shannon in the amount of $500 per month.

¶ 18. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., BRIDGES, P.J., LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.