author: MYERS, J., SOUTHWICK, P.J.,

text:
    Winfred “Wimp” FORKNER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00754-COA.
    Court of Appeals of Mississippi.
    Dec. 17, 2002.
    Rehearing Denied Feb. 18, 2003.

      Pamela A. Ferrington, Natchez, attorney for appellant.
    Office of the Attorney General by' John R. Henry, Jr., attorney for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. Winfred “Wimp” Forkner was convicted of the burglary of a storehouse. Forkner was sentenced to serve a term of life imprisonment without the possibility of parole in the custody of the Mississippi Department of Corrections, as a habitual offender, pursuant to Miss.Code Ann. § 99-19-83 (Rev.2000). This Court dismisses his appeal for lack of jurisdiction.

STATEMENT OF FACTS

¶ 2. Forkner was convicted on February 26, 2001. The sentencing order was signed on February 28 and filed March 1. Forkner filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial on March 8 and 12. The motions were denied on March 9 and filed on March 12.

¶ 3. On April 20, 2001, Forkner filed a motion to reopen time to file an appeal. The motion to reopen time to file an appeal alleged that on March 20 and April 9, inquiries were made at the circuit clerk’s office and that the order denying the motion for judgment notwithstanding the verdict or in the alternate for a new trial was not found. The motion to reopen time to file an appeal also alleged that on April 18 an inquiry was made at the circuit clerk’s office and the order denying the motion for judgment notwithstanding the verdict or in the alternative for a new trial was found. No hearing was held on the motion to reopen time nor does an order denying or granting the motion appear in the record. Forkner filed his notice of appeal on May 2.

LEGAL ANALYSIS

¶ 4. Mississippi Rules of Appellate Procedure Rule 4(a) requires the notice of appeal to be filed with the clerk of the trial court within thirty days after the date of entry of the judgment or order being appealed. M.R.A.P. 4(a).

¶ 5. One exception which allows for an out of time appeal is Mississippi Rules of Appellate Procedure Rule 4(h). Rule 4(h) allows for an out of time appeal,

If [the trial court] 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 seven days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of fourteen days from the date of entry of the order reopening the time for appeal.

¶ 6. The clear language of the rule is that a trial court may but does not have to reopen the time for appeal. M.R.A.P. 4(h).

¶ 7. The advisory committee note of Mississippi Rules of Appellate Procedure Rule 4 acknowledges that the party seeking relief carries the burden of persuasion regarding the lack of a timely notice. M.R.A.P. 4; see Nunley v. City of Los Angeles, 52 F.3d 792, 798 (9th Cir.1995). There must be a specific factual denial of receipt of notice to rebut and terminate the presumption that notice was mailed and received. Id. at 798.

CONCLUSION

¶ 8. This Court is mindful that the Mississippi Supreme Court has allowed the suspension of Mississippi Rules of Appellate Procedure Rule 4 for out-of-time appeals. However, these instances are limited in scope. Timely filing of a notice of appeal is jurisdictional. Eades v. State, 805 So.2d 554, 555(¶ 4) (Miss.Ct.App.2000). In the instant case, the record does not reflect that there was ever an order granting or denying Forkner’s motion to reopen time for appeal. Since the trial court has made no ruling on Forkner’s motion to reopen time for appeal, this Court does not have the jurisdiction necessary to hear this appeal.

¶ 9. THE APPEAL OF THE JUDGMENT OF THE WILKINSON COUNTY CIRCUIT COURT IS DISMISSED FOR LACK OF JURISDICTION AS BEING UNTIMELY FILED. COSTS OF THE APPEAL ARE ASSESSED TO WILKINSON COUNTY.

THOMAS, LEE, IRVING, CHANDLER AND BRANTLEY, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J., KING, P.J., AND BRIDGES, J.

SOUTHWICK, P.J.,

Dissenting.

¶ 10. The majority makes a logical and defensible decision to dismiss. My disagreement is that I believe dismissal is an inefficient use of judicial resources. Instead, I would enter an order requiring that the circuit court rule on the motion or, if that has already occurred, provide a certified copy of the order as a supplement to the record. M.R.A.P. 10(e).

¶ 11. The State argues that we do not have jurisdiction. I find that an appellate court always has jurisdiction to determine if it has jurisdiction. I would exercise that authority as follows.

¶ 12. What Forkner should have done is wait for the trial court to grant leave to file a late appeal. Since the motion for leave was filed during the thirty day period immediately following the original thirty days to appeal, the trial court could have granted an extension if good cause was shown. M.R.A.P. 4(g). In addition, if the trial court found that Forkner or his counsel did not get notice of the judgment within the time to file a proper notice of appeal, and if no prejudice would occur, the time for appeal can be reopened. Forkner would need to show that the request to reopen was filed within seven days of discovery of the order denying the post-trial motions. M.R.A.P. 4(h). Fork-ner clearly filed a timely motion at least under Rule 4(g) to reopen the period for appeal. The circuit court had authority to grant the motion. Forkner just got ahead of himself on the appeal.

¶ 13. What the majority holds is that since the record does not reflect that the circuit court granted the motion, we must dismiss. This does not necessarily, mean that Forkner can now seek a ruling on the motion and start the appeal over again, at least not if the State is correct that if the motion was not promptly brought on for hearing by Forkner, it has lapsed.

¶ 14. Court rules are not supposed to be a trap for the unwary. Forkner’s original counsel may have been unwary when he decided to file a notice of appeal twelve days after filing a motion to reopen the period for appeal. The error was not in the timely bringing of an appeal, but in the sequence of acts that should have been followed. The appellate rules provide that a premature notice of appeal that predates ruling on certain other kinds of post-trial motions becomes effective on the day that those motions are denied. M.R.A.P. 4(b), (d) & (e). Once the appeal notice was filed, the trial court may well have determined it no longer had jurisdiction to rule on the motion for leave.

¶ 15. These appellate rules are not statutes issued under the authority of the legislature but court rules promulgated under the authority of the Supreme Court and interpreted and applied by courts. Rules can be suspended in the interest of expediting decision. M.R.A.P 2(c). I find it within the authority of this Court in managing its docket to apply the prospective effectiveness approach to out-of-sequence notices of appeal and rulings on motions to reopen the time for appeal.

¶ 16. The case is fully briefed on the merits. The State never moved to dismiss the appeal but was content to proceed with briefing though adding the procedural matter to its arguments. I find nothing gained and much lost by dismissing. I would enter an order to require as appropriate either a supplementation of the record to provide a copy of any order on the motion that has been entered, or that the motion now be ruled upon and a copy of the order sent us. Upon receipt, we should then return to our consideration of the case.

McMILLIN, C.J., KING, P.J., AND BRIDGES, J., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    L.G. BROWN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-01601-COA.
    Court of Appeals of Mississippi.
    Jan. 7, 2003.
    Rehearing Denied April 15, 2003.
    Certiorari Denied Aug. 28, 2003.

      David Ford, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

for the court.

¶ 1. On the evening of October 13, 2000, Officers Tommy Smithey and Sammy Pickens of the New Albany Union County Drug Task Force were on patrol in New Albany, Mississippi. While investigating a possible drug deal, they arrested L.G. Brown. Both officers were injured while restraining Brown.

¶ 2. Brown was charged with one count of simple assault on a law enforcement officer and one count of resisting arrest. Following his trial, a jury returned a guilty verdict on both counts. Brown now appeals, asserting the following issues:

I. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO ESTABLISH THE CRIME OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING BROWN’S MOTION IN LIMINE AND IN ALLOWING INTRODUCTION OF EVIDENCE OF ACTUAL PHYSICAL INJURY AS SUCH EVIDENCE AMOUNTED TO A MATERIAL VARIANCE IN THE INDICTMENT AND WENT BEYOND THE SCOPE OF THE INDICTMENT.

III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GRANT BROWN’S JURY INSTRUCTIONS D-7 AND D-10 AND IN AMENDING BROWN’S JURY INSTRUCTION D-9.

Statement of the Facts

¶ 3. While patrolling a known drug trafficking area, Smithey and Pickens saw a pickup truck which had an open container of beer on its dashboard. Additionally, a group of people was standing around the truck. Smithey and Pickens decided to investigate since possession of alcohol is illegal in Union County and the scene resembled a possible drug deal.

¶ 4. Brown was the sole occupant of the truck. Besides the beer on the dash, another open container of beer was on the floorboard and one was also on the seat next to Brown. Pickens placed Brown under arrest. Brown attempted to flee the scene. Both Smithey and Pickens scuffled with Brown, trying to restrain him. Both officers received scrapes and bruises from the skirmish, and Brown kicked Pickens in the jaw, dislocating it. Brown escaped from the scene that night, but the police later apprehended him.

Legal Analysis

I. Sufficiency and weight of the evidence

¶ 5. Brown argues that the State failed to present sufficient evidence to support the jury finding that he resisted arrest or assaulted a law enforcement officer. In McClain v. State, 625 So.2d 774, 778 (Miss.1993), the Supreme Court said:

[ T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [the appellant’s] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.

As to whether the verdict was against the overwhelming weight of the evidence,

[ we] 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.

Dudley v. State, 719 So.2d 180, 182 (¶ 8) (Miss.1998) (citations omitted).

¶6. The State presented evidence that Officers Pickens and Smithey stopped for what looked like a possible drug deal. They found open containers of beer in a vehicle owned by Brown. They placed Brown under arrest, but Brown resisted arrest and fled. During the struggle to subdue Brown, Brown kicked Smithey, dislocating Smithey’s jaw. Although no direct evidence was presented that Brown intended to injure Smithey, a juror could reasonably infer the intent from the evidence. A reasonable juror could certainly infer guilt from the evidence presented. We therefore cannot reverse the verdict because of insufficient evidence. See Richardson v. State, 807 So.2d 1277, 1279(¶ 7) (Miss.Ct.App.2001) (citations omitted) (“If there is sufficient evidence to support a verdict of guilty, this Court will not reverse.”).

¶ 7. Neither can this Court say the verdict was against the weight of the evidence. The State’s evidence supported the verdict. Both the State and Brown presented evidence mainly as testimony. “In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the [Sjtate and part of that for the accused, and the credibility of such witnesses is not for the reviewing court, but only for the jury.” Conley v. State, 790 So.2d 773, 807 (¶ 138) (Miss.2001) (quoting Bond v. State, 249 Miss. 352, 357, 162 So.2d 510, 511 (1964)).

II. Material Variance in the Indictment

¶ 8. Count I of Brown’s indictment charged him with attempting to assault a law enforcement officer, violating Miss. Code Ann. § 97-3-7(1) (Rev.2000). Brown argues that evidence was presented that he committed physical violence against Smithey, which amounted to a material variance in the indictment. This Court fails to see the logic of this argument.

¶ 9. The indictment cites Miss. Code Ann. § 97-3-7(1) within count I. This section is also cited at the top of the indictment along with the bold words, “SIMPLE ASSAULT ON LAW ENFORCEMENT OFFICER.” Further, Miss.Code Ann. § 97-3-7(1), includes “attempt” in the definition of assault. Thus, an attempted assault falls within the meaning of assault. Whether the indictment read “assault” or “attempted assault” makes no difference — it is the same crime.

¶ 10. The supreme court has stated the purpose of an indictment. Brown’s indictment served that purpose:

The major purpose of an indictment is to furnish the accused such a description of the charges against him as will enable him to adequately prepare his defense. Thus, all that is required in this regard is a concise and clear statement of the elements of the crime charged. Nothing more is required.

Williams v. State, 445 So.2d 798, 804 (Miss.1984) (citations omitted). Brown’s indictment meets the Williams criteria. It cited the statute which Brown had violated, and mentioned that the section which Brown was accused of violating was the assault of a law enforcement officer, not the attempted assault. Count I also contained the elements of the crime of simple assault on a law enforcement officer. The indictment provided Brown with adequate notice of the charge against him and the elements of that crime. The claim that allowing evidence of injury was a material variation of the indictment is without merit.

III. Jury Instructions

¶ 11. Brown next argues the trial court committed reversible error by refusing to grant Brown’s jury instructions D-7 and D-10 and in amending Brown’s jury instruction D-9.

¶ 12. Instruction D-7 instructed the jury to find Brown not guilty if it thought he was acting in self-defense. “A defendant is entitled to have jury instructions given which present his theory of the case, however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). The trial court not only found that D-7 misstated the law on self-defense, but there was also no evidentiary basis for the instruction. After reading the transcript, we agree.

¶ 13. Instruction D-10 instructed the jurors that a person has a right to resist an illegal arrest. Further, it stated that the State must prove beyond a reasonable doubt the officers had an objectively reasonable basis in fact to believe Brown was committing a misdemeanor in their presence before they could legally arrest Brown. The trial judge refused the instruction because he believed the evidence did not support a theory of illegal arrest. We agree with the trial court.

¶ 14. It is true under Mississippi law a person may use reasonable force to resist an illegal arrest. Johnson v. State, 754 So.2d 576, 578-79 (¶¶ 13-14) (Miss.Ct.App.2000); Murrell v. State, 655 So.2d 881, 888 (Miss.1995). However, it appears that the arrest in the case at hand was entirely legal. Section 99-3-7(1) of the Mississippi Code Annotated (Rev.2000), states, “An officer or private person may arrest any person without warrant for an indictable offense committed ... in his presence .... ” Officers Pickens and Smithey were investigating what they believed in good faith to be a possible drug deal. They spotted several open containers of beer in the truck in which Brown was sitting. This gave them probable cause for the arrest. Cf. Northington v. State, 749 So.2d 1099, 1102(¶ 8) (Miss.Ct.App.1999) (police had probable cause to arrest driver of vehicle when beer was spotted in plain view of vehicle while police investigated domestic disturbance). Since no evidence was presented which would support any other version of the facts, the trial judge was correct in denying jury instruction D-10.

¶ 15. We now turn to the question of the trial judge amending instruction D-9. This instruction was changed by the trial court only by striking the word “attempted” when the instruction would have referred to “attempted simple assault” and “attempting to cause injury.” As previously stated, the crime of simple assault includes the attempt to commit the crime. See Miss Code Ann. § 97-3-7(1) (Rev. 2000). Therefore, there was no error in amending instruction D-9.

Conclusion

¶ 16. Finding no merit in the issues Brown raises on appeal, we affirm the decision of the trial court.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY OF CONVICTION OF COUNT 1 — MISDEMEANOR RESISTING ARREST AND SENTENCE OF SIX MONTHS IN THE CUSTODY OF THE UNION COUNTY SHERIFF AND FINE OF $500, AND COUNT II FELONY SIMPLE ASSAULT OF A LAW ENFORCEMENT OFFICER AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND FINE OF $5,000 IS AFFIRMED. SENTENCES TO RUN

CONSECUTIVELY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, AND CHANDLER, JJ., CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT PARTICIPATING.

      . Miss.Code Ann. § 97-3-7(1) (Rev.2000) defines simple assault as "attempt[ing] to cause or purposely, knowingly or recklessly caus[ing] bodily injury to another....”


author: IRVING, J.,

text:
    Brian HOLLINGSWORTH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-CA-02095-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2003.
    Rehearing Denied April 8, 2003.
    Certiorari Denied Aug. 28, 2003.

      Kimberly G. Starks-Dudenbostel, Pasca-goula, attorney for appellant.
    Office of the Attorney General by: Scott Stuart, attorney for appellee.
   IRVING, J.,

for the Court.

¶ 1. Brian Hollingsworth appeals from the denial of his motion seeking post-conviction collateral relief in the Circuit Court of Washington County, Mississippi. In this appeal, Hollingsworth contends (1) that the trial court erred in failing to rule on his motion for leave to amend his original post-conviction relief motion and his motion for discovery, (2) that the trial court erred in denying him an evidentiary hearing, (3) that the trial court erred in not finding that the appointment of Martin Kilpatrick as special prosecutor prejudiced Hollingsworth, (4) that the trial court erred in not addressing and subsequently granting him relief under his claim of violation of his due process rights, (5) that the prosecution breached the plea bargain agreement with him, (6) that he received ineffective assistance of counsel, and (7) that he entered into an involuntary and unintelligent plea agreement.

FACTS

¶ 2. In May of 1996, Hollingsworth beat and/or strangled Charles M. Page, Jr. A friend of Hollingsworth, Brian Prestridge, joined Hollingsworth in beating Page. Later, Page’s body was found in the Mississippi River, decomposed with multiple rib fractures. Hollingsworth was indicted for Page’s murder. Prestridge and Hollings-worth retained Gaines Dyer to represent them. Thereafter, Dyer terminated his representation of Hollingsworth as a client due to a conflict of interest. Prestridge entered a plea agreement and revealed that Hollingsworth strangled Page to death and that Prestridge helped Hollings-worth dump Page’s body in the Mississippi River. Later, Hollingsworth entered a plea of guilty to manslaughter. On June 6, 1997, he was sentenced to twenty years with three years suspended.

¶ 3. On or about May 25, 2000, Hollings-worth filed a post-conviction relief (PCR) motion seeking to vacate his judgment of conviction and sentence. At that time, Hollingsworth also filed a motion for production of documents, including a transcript of the plea hearing. On May 31, 2000, Hollingsworth filed a motion for leave to amend his PCR motion. Attached to this motion were two affidavits which Hollingsworth asked that the court consider.

¶ 4. On June 22, 2000, Judge Gray Evans ordered the Washington County District Attorney and George Kelly, Hollings-worth’s attorney, to answer by affidavit. On June 29, 2000, Hollingsworth filed a second motion for leave to amend his PCR motion, asserting newly discovered evidence. In this amended motion, Holl-ingsworth alleged that the prosecution deliberately failed to produce the recently acquired autopsy reports and that missing from the evidence was the liver tissue removed during the first autopsy. Thereafter, Dyer, Kelly, and Prestridge responded by affidavit to Hollingsworth’s PCR motion.

¶ 5. In July of 2000, Hollingsworth filed his request for leave to invoke the process of discovery. In September of 2000, Holl-ingsworth again sought leave to amend his PCR motion. Also, in October of the same year, he filed a motion for summary judgment, asserting that the State had failed to respond, leaving no genuine issue of material fact. As a result of this motion, Cheryl Sullivan responded on behalf of the Washington County District Attorney’s Office.

¶ 6. Without holding an evidentiary hearing, the trial judge entered an order on December 7, 2000, dismissing with prejudice Hollingsworth’s PCR motion.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Failure of the Court to Rule on Motions for Leave to Amend, and Motion for Discovery

¶ 7. Hollingsworth’s issue concerning the trial court’s failure to rule on his subsequent motions is twofold. One part of the issue applies to the three motions for leave to amend his PCR motion. The other applies to his request to invoke the process of discovery.

¶ 8. Hollingsworth avers that he filed two requests for amendments to his PCR motion prior to any responsive pleadings being filed and one request for amendment after defense attorneys filed their responsive affidavits but before a response was filed by the State. Hollingsworth avers that his amendments outlined specific constitutional issues of ineffective assistance of counsel, violation of due process rights and prosecutorial misconduct. Hollings-worth asserts that the trial court abused its discretion when it failed to rule on his motions to amend his PCR motion.

¶ 9. When reviewing a trial court’s denial of a motion for post-conviction relief, we will reverse only where the trial court’s decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999). We find that the trial court’s denial was not clearly erroneous because the trial judge addressed Hollingsworth’s issues and gave legal support for his reasoning.

¶ 10. Hollingsworth filed a motion to vacate judgment of conviction and sentence. Four issues were asserted therein: (1) that the grand jury’s determination of probable cause was tainted, (2) that Circuit Judge Shirley Byers exhibited judicial misconduct thereby compromising Hollings-worth’s constitutional right to due process, equal protection and an impartial judge, (8) that Hollingsworth was denied effective assistance of counsel, and (4) that his plea was not knowingly, intelligently, or voluntarily given. Subsequently, Hollingsworth filed three motions for leave to amend with affidavits which essentially provided support for the issues raised in his initial PCR motion.

¶ 11. In his final order, the judge addressed each issue raised in Hollings-worth’s PCR motion. Therefore, we disagree with Hollingsworth’s assertions that the judge failed to rule on his subsequent motions for leave to amend as they were merely supplements to the initial issues raised. The trial judge addressed the issue regarding the grand jury by explaining that Hollingsworth failed to present evidence of the State’s misconduct and that Hollingsworth had waived his right to attack this issue when he pleaded guilty. The judge addressed Hollingsworth’s allegations of judicial misconduct by explaining that the appointment of the special prosecutor was granted by the judge as per a motion made by the assistant district attorney.

¶ 12. As to the issue of ineffective assistance of counsel by Dyer, the trial judge pointed out that Hollingsworth’s mother filed a “Petition for Arbitration before the Fee Dispute Committee of the Mississippi Bar” and that the ruling of the arbitrator clearly stated that “ ‘there was no evidence to indicate that Brian Hollingsworth’s defense and representation was [sic] prejudiced by Mr. Dyer’s actions.’ ” The trial judge concluded that the ruling of the arbitrator decided the issue of ineffective assistance of counsel with respect to Dyer and that “without some showing of prejudice, [Hollingsworth] cannot proceed on a claim of ineffective assistance of counsel.” While we do not agree that the ruling of the fee dispute arbitrator was res judicata as to the ineffective assistance of counsel claim respecting Dyer, our review of the record does not convince us that the trial judge’s acceptance of the arbitrator’s findings, as opposed to conducting an independent analysis, constitutes reversible error.

¶ 13. With respect to the ineffective assistance of counsel charge leveled against George T. Kelly, the judge analyzed the allegations via the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and concluded that there was “no evidence that Mr. Kelly was deficient in his representation of [Hollingsworth].” Lastly, as to Hollingsworth’s claim that his plea was not voluntarily, knowingly, or intelligently given, the trial judge noted that Hollings-worth signed a plea petition which outlined the rights he was waiving. The trial judge also noted that, during the plea hearing, Hollingsworth was asked questions specifically about the rights he was waiving.

¶ 14. Hollingsworth also contends that he filed a request for leave to invoke the process of discovery which outlined substantial good cause with specificity for the discovery requested. Hollingsworth avers that the trial court’s failure to rule on his motion to invoke discovery robbed this Court of the necessary guidelines to determine whether the trial court properly exercised its discretion.

¶ 15. The Post-Conviction Collateral Relief Acts allows a party to invoke the process of discovery but only if “the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” Miss.Code Ann. § 99-39-15 (Rev.2001).

¶ 16. Hollingsworth signed a sworn petition to enter a guilty plea. This petition enumerated the rights Hollingsworth was waiving by pleading guilty. Among the enumerated rights were the right to subpoena documents and witnesses and the right to confront witnesses against him. Moreover, Hollingsworth appeared before the judge at his plea hearing and stated under oath that he was waiving his right for the State to prove its case against him as shown by the following exchange:

Q: And do you realize that the burden is on the State of Mississippi to prove you guilty beyond a reasonable doubt and that you don’t have to prove anything, but by you entering a plea of guilty to this charge you’re giving up this right?
A: Yes, mam [sic].

This issue lacks merit.

2. Denial of An Evidentiary Hearing

¶ 17. Hollingsworth avers that he was entitled to an evidentiary hearing regarding the sentence given to him by the judge. This contention is wholly without merit. Before accepting Hollingsworth’s plea, the trial judge asked Hollingsworth:

Q: Do you understand that the maximum sentence that the Court can impose upon your plea of guilty is a term of 20 years in tbs custody of the Mississippi Department of Corrections and a minimum of two years as well as court costs and any other fees that may arise from that case?
A: Yes, mam [sic].
Q: You understand that the Court can impose a maximum sentence as justified by the circumstances?
A: Yes, mam [sic].

¶ 18. More importantly, the Post-Conviction Collateral Relief Act leaves the decision to grant or deny an evidentiary hearing to the sole discretion of the trial judge:

If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evi-dentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require.

Miss.Code Ann. § 99-39-11(1) (Rev.2001). We find no abuse of the trial judge’s discretion in denying Hollingsworth an evi-dentiary hearing on sentencing issue.

S. The Appointment of Martin Kilpa-trick as Special Prosecutor

¶ 19. Hollingsworth asserts that his due process rights were violated when Martin Kilpatrick was appointed special prosecutor because, at that time, the State lost control over the prosecution of Holl-ingsworth. He cites Jordan v. State, 786 So.2d 987, 1011(¶ 75) (Miss.2001) as support for his contention that control of the prosecution must remain under the control of the district attorney. Hollingsworth contends that the district attorney’s loss of control is evidenced by Kilpatrick’s motion to revoke bond after the district attorney’s office had agreed not to revoke bond, by requesting that Hollingsworth’s guilty plea be rejected after the State had agreed to the plea agreement, and by Kilpatrick’s request to the trial judge that the maximum sentence be given, in violation of the plea agreement that the State would remain silent on the matter of sentencing.

¶ 20. The State contends that Hollings-worth’s due process rights were not violated because the special prosecutor, Martin Kilpatrick, did not control crucial prosecu-torial decisions such as the targets of the prosecution, decisions whether to prosecute, what investigative powers to use, sanctions to seek, plea bargains to strike, or immunities to grant. The State agrees with Hollingsworth that a district attorney must retain control of the prosecution when a special prosecutor is appointed, but, as might be expected, differs with Hollingsworth’s assessment as to who remained in control. We have reviewed the record and find that the State did maintain control of this case. The district attorney decided to allow Hollingsworth to plead guilty to a lesser charge of manslaughter in spite of the special prosecutor’s opposition. The State did not renege on the plea agreement, and notwithstanding Hollings-worth’s assertions to the contrary, the record does not support his emphatic contention that the State agreed not to pursue an increase or revocation of his bond. The record reflects that at best some confusion or misunderstanding occurred between the district attorney’s office, the court, and Hollingsworth’s counsel concerning the State’s intention regarding Hollingsworth’s bond. Nevertheless, we are at a loss to understand the point Hollingsworth seeks to make regarding the bond issue since the trial judge neither increased nor revoked Hollingsworth’s bond.

A The Failure of the Prosecutor to Produce Material Evidence

¶ 21. By pleading guilty, Hollings-worth waived his right to have the State produce any material evidence. Therefore, this issue need not be addressed any further, notwithstanding his assertion that some liver tissue from one of the autopsies performed on the victim was missing and that had he known that he would not have pleaded guilty. The transcript of the plea hearing indicates that no such concern was expressed by Hollingsworth, that he was satisfied with the services of his attorney and that he knew the State was required to prove him guilty.

5. Breach of the Plea Agreement

¶ 22. Hollingsworth asserts that he entered into a plea bargain in which the State agreed not to request the maximum sentence. Hollingsworth asserts that this bargain was breached when Kil-patrick requested the maximum sentence. The record does not support Hollings-worth’s assertions. First, we are unable to determine from the record whether the State ever agreed not to make any comment regarding what sentence would be appropriate. In any event, the sentencing transcript reveals that the district attorney did not make any statement regarding sentencing. Hollingsworth was specifically asked whether any promises as to his sentence were made and he responded in the negative:

Q: Do you understand that the maximum sentence that the Court can impose upon your plea of guilty is a term of 20 years in the custody of the Mississippi Department of Corrections and a minimum of two years as well as court costs and any other fees that may arise from this case?
A: Yes, mam [sic].
Q: You understand that the Court can impose a maximum sentence as justified by the circumstances?
A: Yes, mam [sic].
Q: Has anyone made any representations to you or promises to you as to what the sentence of the Court might be?
A: No, mam [sic].

Further, a review of the “Petition to Enter Guilty Plea” signed by Hollingsworth does not contain a provision prohibiting the district attorney from sharing his views with the court regarding an appropriate sentence.

6. Ineffective Assistance of Counsel

¶ 23. Hollingsworth avers that his counsel failed to investigate and/or discover exculpatory evidence, i.e., the autopsies which contradicted the allegation that the deceased died of strangulation. According to Hollingsworth, no toxicology analysis was performed on the victim and the liver tissue from the initial autopsy was missing. Although Hollingsworth asserts that this is exculpatory evidence, he fails to explain how this evidence exonerates him in light of Prestridge’s statement that Hollings-worth strangled Page.

¶ 24. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), provides the criteria by which any claim of ineffective assistance of counsel is judged. A claimant must satisfy a two prong test: (1) that his counsel’s performance was deficient, and (2) that this supposed deficient performance prejudiced his defense. Id, at 687, 104 S.Ct. 2052. This test is reviewed under the strong but rebuttable presumption that an attorney is competent and his conduct is reasonable. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). The burden to prove both prongs of the test rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The application of the Strickland test is done with deference to counsel’s performance, considering' the totality of circumstances to determine whether counsel’s actions were both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss.1996). Hollingsworth failed to prove that counsel was ineffective under the required standard.

¶ 25. In the case sub judice, Hollings-worth entered a plea of guilty which waived a number of his rights including the right to trial. Hollingsworth’s contentions against counsel concern evidence which Hollingsworth claims would have proven his case. After Hollingsworth pleaded guilty and waived his right to trial, his counsel was not obligated to look for additional evidence. Moreover, Hollings-worth was indicted for murder but, with the assistance of counsel, was able to acquire a plea bargain for manslaughter which carried a lesser maximum sentence.

¶ 26. We also note that during the plea hearing, Hollingsworth was asked whether he was satisfied with the legal service provided by Mr. Kelly, and he answered affirmatively.

Q: All right. Mr. Hollingsworth, are you satisfied with the legal services and advice of your attorney, Mr. Kelly?
A: Yes, mam [sic].
Q: And do you believe that your attorney has properly advised you before entering this plea and properly represented your best interest in this case?
A: Yes, mam [sic].

Thus, we find that Hollingsworth’s contention of ineffective assistance of counsel lacks merit.

7. Involuntary and Unintelligent Plea Agreement

¶ 27. Hollingsworth asserts that his plea agreement was involuntary because he was not fully informed. He notes that he was told by counsel that he would receive no more than ten years and he contends that he was unaware of the autopsy report or the missing liver tissue. He supports his assertion by pointing to the colloquies in the transcript which, according to him, evidence his confusion.

¶ 28. This Court will only overturn a trial court’s finding of a knowing and voluntary guilty plea if that finding is clearly erroneous. See Kirksey, 728 So.2d at 567(¶ 8). Hollingsworth’s statements during his plea hearing contradict his assertions here. As mentioned earlier in our discussion, Hollingsworth responded affirmatively when asked whether he fully understood the maximum sentence he could receive. Additionally, Hollingsworth responded in the negative when asked whether any representations as to the sentence were made. More importantly, Holl-ingsworth responded in the negative when asked whether he had been threatened or promised anything to enter a plea of guilty:

Q: Has he threatened you in any manner or promised you anything in order to get you to enter a plea of guilty to this charge?
A: No, mam [sic].

¶ 29. We have thoroughly examined the record and find nothing to suggest or support the view that Hollingsworth did not enter a free and voluntary guilty plea after being duly and properly fully informed as to his constitutional rights. Accordingly, we affirm the decision of the trial court.

¶ 30. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY DENYING POST CONVICTION RELIEF WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


author: MYERS, J., IRVING, J.,

text:
    David H. VINCENT, Appellant, v. Joan (Hankins) Vincent GRIFFIN, Appellee.
    No. 2001-CA-01439-COA.
    Court of Appeals of Mississippi.
    Jan. 28, 2003.
    Rehearing Denied May 13, 2003.

      D. Russell Jones, Mary Lynn Williams Damare’, attorneys for appellant.
    Phillip Gregory Meek, attorney for ap-pellee.
   MYERS, J.,

for the Court.

FACTS

¶ 1. David and Joan Vincent were granted a divorce by the Chancery Court of DeSoto County on February 24, 1997. The decree awarded both parents joint legal and physical custody of their three minor children. In November 1997, David and Joan agreed to alternate terms for child visitation, as permitted in the decree. These alternate terms gave David custody of the children on alternate weekends and up to two additional nights each week. David asserts that the parties later modified this schedule to allow him to have physical custody of the children from Thursday at 5:00 p.m. to the following Monday when he would deliver the children to school or back to their mother’s home. David further asserts that he and Joan agreed to suspend child support payments since each of them had the children for relatively equal amounts of time. Both David and Joan agree that David was to provide medical insurance for the children.

¶ 2. In August 2000, Joan filed a petition for contempt seeking to compel David to pay three years of back child support. On August 31, a Rule 81 summons was issued informing David of the date and time of the hearing on the contempt motion. David made an appearance at the scheduled time, and the case was continued until October 2, at which time an administrative order was entered scheduling the matter for trial on November 15. On November 15, Chancellor Dennis Baker transferred the case back to Chancellor Percy Lyneh-ard, Jr., who had been the original chancellor who granted the parties’ divorce. During all of these proceedings, David appeared pro se.

¶ 3. On January 31, 2001, Joan’s attorney mailed David a letter along with an agreed order proposing a trial date of February 28. David did not respond to this letter, nor did he return the agreed order, or in any way contact Joan’s counsel concerning this correspondence. On February 21, Joan filed a motion for trial date setting noticing David to appear before the Chancery Court of DeSoto County on February 26, 2001, at 9:00 a.m. David claims to have never received this notice.

¶ 4. On February 26, the chancellor ordered a trial date of March 29. David claims to have not received any notice of this date, and did not appear for the trial. At the trial, Joan obtained a judgment for contempt and modification awarding her $21,560 in past due child support, sole legal and physical custody of the parties’ three minor daughters, and attorney’s fees of $6,080. David, again acting pro se, filed a motion for a new trial or to reopen the hearing for additional testimony on April 16. After filing this motion, David was able to retain counsel who now represents him on this appeal. Chancellor Lynchard denied this motion on August 9. David now appeals, stating the issues as:

1. WHETHER THE CHANCELLOR DENIED DAVID’S DUE PROCESS RIGHTS BY HEARING THE CASE WHEN DAVID DID NOT RECEIVE NOTICE OF THE TRIAL DATE.

2. WHETHER THE CHANCELLOR ERRED WHEN HE AWARDED JOAN PAST DUE CHILD SUPPORT AFTER JOAN TESTIFIED THAT THE GIRLS SPENT THURSDAY THROUGH MONDAY WITH DAVID.

3. WHETHER THE CHANCELLOR ERRED WHEN HE AWARDED ATTORNEY’S FEES TO JOAN VINCENT WHEN SHE HAD ABILITY TO PAY. DID THE AWARD UNFAIRLY PUNISH DAVID FOR HIS FAILURE TO APPEAR AND DAVID COULD NOT QUESTION THE REASONABLENESS OF THE FEES AWARDED?

DISCUSSION

I. David’s Due Process Claim

¶ 5. David first claims that since he did not receive notice of the order assigning a trial date, he did not receive procedural due process. David cites Mississippi Rule of Civil Procedure 40 for support of this argument, claiming the clerk of the trial court should have given him at least three days’ notice of the trial date. However, Mississippi Rule of Civil Procedure 81(d) controls where matters in either Rule 81(d)(1) or 81(d)(2) conflict with other provisions of the rules. Rule 81(d)(2) states that actions for modification or enforcement of child support and child custody actions are triable seven days after completion of service of process (or thirty days after publication where service is by publication). “Other means of initiating an action or initially setting a matter on a docket are inapplicable in these actions.” Caples v. Caples, 686 So.2d 1071, 1074 (Miss.1996).

¶ 6. Further, Rule 81(d)(5) states, “[i]f such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” (emphasis added). This language would suggest that no further notice is required once a defendant has been served with a Rule 81 summons.

¶ 7. In the instant case, Joan served David with a Rule 81 summons and David appeared at the ordered date and time. On that day, Chancellor Baker, to whom the case was assigned, continued the matter until October 2, 2000. David appeared at the October 2 hearing. At that hearing, an initial trial date of November 15 was set.

¶ 8. On November 15, Chancellor Baker heard brief arguments. He then decided to reassign the ease to Chancellor Lynch-ard, the chancellor who had originally granted the divorce. The reassignment order did not set a trial date, but directed Joan’s attorney to contact Chancellor Lynchard’s court administrator to set a date. Thus, Chancellor Baker complied with the text of Rule 81(d)(5); an order signed on that day continued the matter until a later day (to be set by Chancellor Lynchard).

¶ 9. The dissent relies on Caples to suggest that David did not receive sufficient notice. However, there are two key distinctions between Capíes and the case before us. First, the Caples’s divorce was granted by a Texas court. Gwendolyn Ca-pies started the Mississippi action by filing a complaint for modification of child support in the Chancery Court of the First Judicial District of Hinds County. Caples, 686 So.2d at 1071-72. Edgar Capíes had never appeared before a Mississippi court, nor had he availed himself of the jurisdiction of the court until the modification hearing. Unlike Edgar, David’s divorce was issued by the same court that held the hearing on Joan’s motion. It is well-settled Mississippi law that once a chancery court has granted a divorce, it has continuing jurisdiction over the parties in matters concerning the divorce. Stowers v. Humphrey, 576 So.2d 138, 141 (Miss.1991); Bradshaw v. Bradshaw, 418 So.2d 64, 65 (Miss.1982); Reichert v. Reichert, 807 So.2d 1282, 1287(¶ 16) (Miss.Ct.App.2002) (citing Powell v. Powell, 644 So.2d 269, 274 n. 4 (Miss.1994)). David was subject to the chancery court’s continuing jurisdiction.

¶ 10. Second, the summons in Capíes appears to be a Rule 4 summons. The supreme court’s opinion reads, “While Edgar was served a summons, it did not comply with 81(d) M.R.C.P. because it did not indicate the time and place the complaint would be heard.... ” Caples, 686 So.2d at 1074; see M.R.C.P. 81(d). The document which gave David notice of the hearing was a Rule 81 summons. It listed the time and date for David to appear. David did appear—twice—and he even filed a counterclaim in the same court.

¶ 11. David admits that he received the February 21, 2001 motion for a trial date. Yet, from that time on, he seems to have stopped attending motion hearings. It is a maxim of equity that “[ejquity aids the vigilant and not those who slumber on their rights.” Last Will & Testament of Winding v. Estate of Winding, 783 So.2d 707, 711(¶ 15) (Miss.2001) (quoting In re Estate of Davis, 510 So.2d 798, 800 (Miss.1987)); Hoskins v. Howard, 214 Miss. 481, 497, 59 So.2d 263, 269 (1952); cf. Collier v. King, 251 Miss. 607, 611, 170 So.2d 632, 634 (1965) (“[E]quity will not, on the mere ground of silence, relieve one who is perfectly acquainted with his rights, or has the means of becoming so, by examining the land records or otherwise.”). Granted, David appeared pro se, but even so, he has the same obligations and duties as if he appeared with counsel and must bear the risk if he chooses to not attend hearings. Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987) (citing Public Interest Bounty Hunters v. Board of Governors, 548 F.Supp. 157 (D.Ga.1982); Catanzaro v. Masco Corp., 423 F.Supp. 415 (D.Del.1976); Sanghi v. Sanghi, 759 So.2d 1250, 1252(¶ 8) (Miss.Ct.App.2000)). David was served with proper notice of the original November 2000 trial date. He was present when the case was transferred to Chancellor Lynchard. David was not a disinterested spectator, but an active participant in the proceedings. He had every opportunity to check with the chancery clerk’s office and Joan’s attorney regarding the case’s status. His failure to do so is not relieved simply because he chose to represent himself. Therefore, David did not suffer a violation of procedural due process.

II. Past Due Child Support

¶ 12. David next contends that he and Joan had agreed that no child support would be due since the children would visit with him Thursday through Monday. This argument is without merit.

¶ 13. The standard of review in child support cases is that a chancellor’s ruling will remain undisturbed unless there is a showing of manifest error. Roberts v. Brown, 805 So.2d 649, 652(¶ 12) (Miss.Ct.App.2002). The Mississippi Supreme Court and this Court have repeatedly held that child support vests in the child as it accrues. Once vested, payments cannot be modified or forgiven by the courts. Houck v. Houck, 812 So.2d 1139, 1143(¶ 11) (Miss.Ct.App.2002) (citing Mississippi State Dept. of Human Servs. v. St. Peter, 708 So.2d 83, 84 (Miss.1998); Tanner v. Roland, 598 So.2d 783, 786 (Miss.1992); Thurman v. Thurman, 559 So.2d 1014, 1016-17 (Miss.1990)). Further, each past due payment has the force of a judgment against the supporting parent. Id. (citing Tanner, 598 So.2d at 786; Cunliffe v. Swartzfager, 437 So.2d 43, 45-46 (Miss.1983)).

¶ 14. The closest support for David’s position comes from Mosley v. Mosley, 784 So.2d 901 (Miss.2001). There, the supreme court held that the supporting father was due a refund of child support payments from the mother for the period of time the daughter lived with him. Id. at 905(¶ 11). Mosley is distinguishable from the instant case since Roshanda Mosley was actually living with her father — and not visiting him — while she finished her senior year of high school. Mosley, 784 So.2d at 905 (¶ 13).

¶ 15. Even if David and Joan agreed for their daughters to visit with David for approximately half of each week, they were still visiting. The chancellor’s decision does not amount to an error, let alone manifest error. The child support payments were still payable each month to Joan for the daughters’ benefit, and the judgment for $21,560 in past due child support is affirmed.

III. Attorney’s Fees

¶ 16. David contends the chancellor erred by awarding attorney’s fees to Joan. Since she had the ability to pay her own fees, David insists the chancellor awarded fees solely as punishment for him not appearing at the trial. This argument can be disposed of in short order.

¶ 17. The basis of this appeal is a ruling from a contempt hearing that David failed to attend. “A chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So.2d 1285, 1290(¶ 25) (Miss.Ct.App.2000). David was under court order in his original divorce to pay child support. Examining the facts in a light most favorable to David, and assuming he and Joan agreed to waive child support payments, he still violated the chancellor’s order in the original decree. He can therefore be held in contempt, and Joan’s attorney’s fees may be awarded to her. Id. (citing Varner v. Varner, 666 So.2d 493, 498 (Miss.1995)). The chancellor’s judgment of $6,080 in attorney’s fees due Joan is affirmed.

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

THOMAS, LEE, AND CHANDLER JJ., CONCUR. McMILLIN, C.J., CONCURS IN RESULT ONLY. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING AND SOUTHWICK, P.JJ. AND BRIDGES, J. GRIFFIS, J., NOT PARTICIPATING.

IRVING, J.,

dissenting.

¶ 19. The majority finds that an order, continuing a hearing commenced pursuant to process by a Rule 81(d)(5) summons, which did not contain the date, time, and place of the continued hearing was sufficient to give the chancery court continuing jurisdiction to dispose of the Rule 81 matter. In my opinion, the majority errs in this regard; therefore, I respectfully dissent.

¶ 20. Rule 81(d)(2) of Mississippi Rules of Civil Procedure provides, inter alia, that actions for contempt shall be “triable 7 days after completion of service of process in any manner other than by publication. ...” M.R.C.P. 81(d)(2). Rule 81(d)(5) of Mississippi Rules of Civil Procedure provides in part:

Upon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.

(emphasis added).

¶ 21. On August 29, 2000, Joan filed a contempt action against David. A Rule 81(d)(5) summons was promptly issued and served on David on the same day that the contempt action was filed. The summons specified that the trial of the contempt matter would be held on September 5, 2000, at 9:00 a.m. at the DeSoto County courthouse. On September 5, 2000, an agreed preliminary injunction, which does not bear the signature of the parties, was entered. The agreed preliminary injunction did not set a date, place, or time for a hearing on the merits of the contempt action, but the docket sheet reflects that an order of continuance was also entered on the same date as was the agreed preliminary injunction. The record reveals that on October 2, 2000, an administrative order, setting the case by agreement for trial on November 15, 2000, was executed and entered. This order is signed by David and counsel for Joan.

¶ 22. In the meantime, on November 13, 2000, David, acting pro se, filed a counterclaim and a petition for contempt against Joan. Also, the docket sheet reflects that on November 3, 2000, David had several subpoenas issued for witnesses. Although the record does not indicate the return date of the subpoenas, presumably the subpoenas were returnable to the November 15 trial date.

¶ 23. On November 25, 2000, Chancellor Dennis M. Baker signed an order of continuance and recusal which states in pertinent part:

This matter came on for hearing on the 15th day of November, 2000, by Order of Continuance of this Court on October 2, 2000, on the Petitioner’s Petition for Contempt before the Honorable Dennis M. Baker, Chancellor. Upon arguments by Petitioner’s attorney, Martin Zum-mach, and the Respondent, acting pro se, the Court hereby orders the following:
1.This Cause is continued for thirty days to allow the Respondent to obtain legal counsel. The Respondent must obtain and have counsel file an entry of appearance by December 15, 2000, otherwise continue pro se.
2. Due to a possible attack on the validity on the Judgment for Divorce by the Respondent, Chancellor Dennis M. Baker hereby recuses himself from said case, thereby assigning the matter to Chancellor Percy Lynehard who approved the original Judgment of Divorce February 24, 1997, for a resolution of all issues pending and properly before the Court.
3. Counsel for the Petitioner shall contact Chancellor Lynchard’s court administrator for the scheduling of a trial date.

Located in the clerk’s papers, following the above order, is the following certificate of service signed by Joan’s counsel, Martin Zummach:

The undersigned does hereby certify that he has this day:
Placed a true and correct copy of the foregoing in the U.S. Mail, First Class postage prepaid, addressed to:
David H. Vincent, Respondent
887 Valley Springs Dr.
Southaven, MS 38671
on this 22nd day of November, 2000.

(emphasis added).

¶ 24. The next entry in this case is a motion for trial setting which was filed on February 21, 2001, by Greg Meek, counsel for Joan. Also filed at that time was a notice of motion advising that the motion for trial setting would be brought on for hearing on February 26, 2001. A certificate of service at the bottom of the notice of motion, signed by Meek, indicates that the motion and notice were served on David by U.S. mail on February 21, 2001.

¶25. On February 26, 2001, an order setting the case for trial on March 29, 2001, and bearing Meek’s signature as counsel for plaintiff, was signed by Chancellor Percy Lynehard. The order was entered the following day. There is nothing in the record indicating that this order was served on David, and the order states that the defendant (David) “failed to appear for motion for trial setting.”

¶ 26. On March 29, 2001, in David’s absence, Chancellor Lynehard heard Joan’s petition for contempt and on April 6, 2001, entered an order finding David in contempt for failure to pay child support in the amount of $21,560. Chancellor Lyneh-ard also ordered David to pay Joan $6,080 in attorney’s fees.

¶27. On April 16, 2001, David, acting pro se, filed a motion, pursuant to Rule 59 of the Mississippi Rules of Civil Procedure, seeking a new trial or a reopening of the hearing for receipt of additional testimony. In the motion, David alleged that he did not know that his presence was required at the hearing on the motion for trial setting, that he thought the court would advise him of the trial date set by the court, that he made several attempts, without success, to determine the trial date, that he had just learned that the matter had been heard on April 6, 2001, and that he believed that he had a meritorious defense to the matter.

¶ 28. On May 24, 2001, Attorney D. Russell Jones, Jr. filed a notice of intention to bring David’s pro se motion before the court on May 29, 2001. Russell entered his appearance on David’s behalf on June 4, 2001, and on July 8, 2001, filed a separate motion for a new trial or to reopen the case. Russell’s motion emphasized that David had not received notice of the hearing which occurred on March 29, 2001, and that the court could grant relief pursuant to Rule 59 of the Mississippi Rules of Civil Procedure.

¶ 29. On August 9, 2001, Chancellor Lynehard entered an order denying the motions for a new trial or to reopen the case. The chancellor did not issue an opinion explaining the denial. His order stated that the court had considered the motion and found that the motion was not well taken and should be overruled. This appeal emanates from this denial.

¶30. The facts set forth above bring several observations into focus and mandate the conclusion that the trial court committed reversible error when it heard Joan’s petition on March 29, 2001, without notice to David. These observations and the inevitable conclusion that David was denied due process is what I next discuss.

¶ 31. Chancellor Baker had the authority to try the contempt matter at the time and place set forth in the Rule 81(d) summons which was served on David on August 29. In the parties’ brief, they indicate that that time was September 5. The case was not heard on that day. Instead, the parties agreed to a preliminary injunction, and the case was apparently set, by order entered on that day which was the return day of the Rule 81(d) summons, for trial on October 2. On October 2, pursuant to the Rule 81(d) summons and the order signed on the return day of the summons continuing the case until October 2, Chancellor Baker still had the authority to hear the contempt matter. M.R.C.P. 81(d)(5). However, the matter was not heard on October 2, and an agreed administrative order was entered continuing the matter for hearing on November 15. So far so good. On November 15, the matter could have been heard by Chancellor Baker pursuant to the Rule 81(d)(5) summons and the orders continuing the matter to new dates when the matter was not heard on the initial date set forth in the Rule 81(d)(5) summons.

¶ 32. On November 15, the chancellor was still empowered to act pursuant to the authority of the Rule 81(d)(5) summons and the orders of continuance which had been entered timely in accordance with the requirements of Rule 81(d)(5). However, the contempt matter was not heard on November 15 nor was an order entered on November 15 continuing the matter for hearing on a specific date and at a specific time and place. The trial court’s failure to sign an order on November 15, continuing the matter to another day certain, terminated the court’s authority to act at a later date pursuant to the initial Rule 81(d)(5) process.

¶ 33. The order signed by Chancellor Baker on November 25 did not carry with it the authority to act pursuant to the initially-acquired Rule 81(d)(5) process because first, the order was not entered on November 15 and second, the order did not contain a new date, time, and place for the continued hearing. M.R.C.P. 81(d)(5). Therefore, David was entitled to new notice of any hearing to be held after November 15, 2001.

¶ 34. It is hard to decipher the basis for the majority’s conclusion that David, on these facts, was not denied due process. Apparently, the majority interprets Rule 81(d)(5) as permitting the trial of a Rule 81(d)(2) matter on a date that is neither specified in the Rule 81(d)(5) summons nor contained in an order, entered on the return date of the summons, continuing the matter to another date, time and place. Such a construction of Rule 81(d)(5) is, without doubt, contrary to the plain meaning of the rule, as well as the body of Rule 81(d)(5) ease law. The case law is what I next discuss.

¶ 35. In Caples v. Caples, 686 So.2d 1071 (Miss.1996), a case which the majority seems to both rely upon and attempt to distinguish at the same time, a former husband challenged the trial court’s granting of a former wife’s request for child custody modification. Amongst the former husband’s assignments of error was the trial court’s failure to take sufficient steps to ensure that he was provided reasonable notice and an opportunity to be heard at the hearing wherein the modification was granted. Id. at 1074.

¶ 36. The former husband (Edgar) and the former wife (Gwendolyn) were granted a divorce from a trial court in Texas. Id. at 1071. The decree ordered joint custody of the parties’ minor son and gave Gwendolyn physical custody of the child. Id. On May 18, 1993, Gwendolyn filed a complaint for modification in a Mississippi chancery court. Caples, 686 So.2d at 1072. “Edgar answered the complaint and [filed a] motion to dismiss, claiming that the Mississippi court lacked jurisdiction.” Id. A hearing was held on August 4, 1993, which resulted in an order of a continuance, pending a decision by the Texas trial court to waive jurisdiction to the Mississippi court. Id. Edgar attended this hearing. Id. at 1074.

¶ 37. “The [chancery] court reconvened on January 18,1994. Edgar, however, was not present.” Id. at 1072. At this hearing, counsel for Gwendolyn filed an order from the Texas court waiving jurisdiction in favor of the Mississippi court. Id. Providing the only testimony at the hearing, Gwendolyn submitted evidence of a material change in circumstances, and the court ordered modification of the Texas joint custody decree. Id.

¶ 38. Edgar filed a motion for a new trial which was denied on February 24, 1994, by the chancery court. Edgar appealed. Id.

¶ 39. On his appeal to our supreme court, Edgar asserted that the [Mississippi] chancery court did not take sufficient steps to ensure that he was provided reasonable notice and an opportunity to be heard regarding the hearing scheduled for January 19, 1994, consistent with Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Id. at 1074. The record [indicated] that Edgar did receive notice and a summons on July 2,1993, via certified mail as to Gwendolyn’s action to modify child custody. Id. Pursuant to this notice Edgar did appear before the Mississippi chancery court on August 4,1993. Id. The Capíes court held that the chancery court acquired continuing personal jurisdiction over the parties. Nevertheless, our supreme court explained:

Edgar’s claim that he received insufficient notice has merit because the notice granted did not comply with Rule 81 of the Mississippi Rules of Civil Procedure. Upon filing an action for modification of child custody, Rule 81(d)(5) states that a “... summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard.” In addition, the summons will not require an answer, but the court may require an answer. M.R.C.P. 81(d)(4). While Edgar was served a summons, it did not comply with 81(d) M.R.C.P. because it did not indicate the time and place the complaint would be heard, and the summons required Edgar to mail or hand deliver a written response to the complaint. In spite of the improper summons, Edgar did appear before the Chancery Court of the First Judicial District of Hinds County, Mississippi on August 4, 1993. This hearing, however, was recessed without any discussion of the merits because the trial judge found insufficient authority to assume jurisdiction. No order was entered that day setting a specific date for further proceedings.

Caples, 686 So.2d at 1074. Most importantly, the court stated: “The proper procedure under Rule 81 would have been to serve Edgar an additional Rule 81 summons. A Rule 81 summons would have outlined the time and date for the trial court hearing and informed Edgar.” Id.

¶40. The court held that the notice issued to the husband was inconsistent with Rule 81 M.R.C.P. and therefore was defective. Consequently, the court reversed and remanded the case. Id.

¶ 41. First, I am obligated to point out that the majority has misquoted the facts in this case. The majority says: “In the instant case, Joan served David with a Rule 81 summons and David appeared at the ordered date and time. On that day, Chancellor Baker, to whom the case was assigned, signed an order recusing himself and transferred the case to Chancellor Lynchard.... ” Majority opinion at page 4(118). As previously stated, Chancellor Baker signed an order on November 25, 2000, transferring the case to Chancellor Lynchard. November 25 was neither the return date of the Rule 81 summons nor the date specified in an order of continuance signed on the return date of the summons.

¶ 42. Second, I am perplexed by the majority’s conclusion that Rule 81 “does not require a new date to be set [in an order of continuance], only for the continuance to be in a signed order.” Such a construction contradicts the plain language of Rule 81(d)(5) which says, “If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.”

¶ 43. Third, I am even more perplexed by the majority’s attempt at distinguishing Capíes. The majority distinguishes Capíes on the basis that the divorce decree in Capíes was granted by a foreign court and the respondent in Capíes had not appeared before a Mississippi court until the date of the modification hearing, while in our case, the divorce was granted by a Mississippi chancery court, thereby giving the Mississippi chancery court continuing jurisdiction. The majority further distinguishes Capíes on the basis that initial process on David was via a Rule 81(d)(5) summons while process on the Capíes respondent was by a Rule 4 summons.

¶ 44. Again, the majority has misstated a portion of the facts. In Caples, Edgar, the respondent, appeared before the Mississippi chancery court on August 4, 1993. Caples, 686 So.2d at 1074. Edgar had even answered the complaint and filed a motion to dismiss, claiming that the Mississippi court lacked jurisdiction to hear the modification. Id. at 1072. The modification hearing in Capíes was not held until January 18, 1994, and contrary to the majority’s assertion, Edgar was not at that hearing, even though he had appeared at a prior hearing. Id. Moreover, the Capíes court held that Edgar’s appearance before the Mississippi chancery court on August 4, 1993, conferred continuing personal jurisdiction over Edgar. Id. at 1074.

¶ 45. It is true, however, as the majority says, that in our case initial process was by Rule 81(d)(5) summons while in Capíes, process was via Rule 4 summons. However, this distinction neither compels nor permits the result reached by the majority-

¶ 46. What Capíes makes clear is that in Rule 81(d)(2) matters, process must be acquired in accordance with Rule 81(d)(5) before a chancery court is authorized to act, even if the chancery court otherwise has continuing personal jurisdiction. As I have previously pointed out, in our ease, the chancery court acquired the authority to act on September 5, 2000, the return date of the Rule 81(d)(5) summons. Likewise, it possessed continuing authority to act in this contempt matter at any time after September 5, without additional notice to David, provided (1) that an order of continuance was signed on September 5 continuing the hearing to a new date, time and place, and (2) that all additional orders of continuance were signed on the date of a previously-continued hearing, and (3) that the hearing was ultimately held on a date and at a time and place which had been previously specified in one of the orders of continuance signed on a scheduled hearing date. That was not done here. As I have already observed, on November 15, 2001, the date of the last scheduled hearing, no order of continuance was signed. The fact that the trial court had continuing personal jurisdiction over David is of no consequence. The trial court in Capíes had the same over Edgar.

¶ 47. The conclusion is inescapable that, prior to action by Chancellor Lynchard, David was entitled to either a new Rule 81(d)(5) summons, as instructed by the Capíes court, or, at a minimum, actual notice that the hearing would be held on March 29, 2001. It is undisputed that he received neither. Consequently, for the reasons presented, I respectfully dissent and would reverse and remand this matter for a new hearing.

KING AND SOUTHWICK, P.JJ., AND BRIDGES, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . There is disagreement between David and Joan whether David was to provide medical insurance, or merely reimburse Joan for the expense of the children's medical insurance.

      . David indicates in his brief that the matter was continued to October 2, 2000.

      . David indicates in his brief that he appeared at the November hearing date with nine witnesses, and Joan appeared with her attorney and three witnesses.

      . It is noteworthy that this certificate of service bears a service date of November 22, 2000, when the order, which it purports to serve, was not signed by Judge Baker until November 25, 2000.

      .Counsel for Joan says he sent a letter to David on January 31, 2001, transmitting a copy of a proposed agreed order setting the case for trial on February 28, 2001. Counsel has included a copy of the letter in the record excerpts which he filed with the clerk of this court. However, the docket sheet in the office of the clerk of the trial court does not reflect that a copy of this letter was ever filed in the trial court.


text:
    Brenda N. ROBERTS and Teresa Ann Cochran, Appellants, v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 2001-CC-01349-COA.
    Court of Appeals of Mississippi.
    Feb. 4, 2003.
    Rehearing Denied May 13, 2003.
    Certiorari Denied Aug. 28, 2003.
    S. Christopher Farris, Hattiesburg, attorneys for appellants.
    James W. Younger, Joanna E. Busby, Jackson, attorneys for appellee.
    Before THOMAS, P.J., IRVING and MYERS, JJ.
   IRVING, J.,

for the court.

¶ 1. Brenda Roberts and Theresa Cochran challenge the Mississippi Department of Public Safety’s (the Department) termination of their employment. Both employees were dismissed for Class Three Offenses. A hearing officer for the Mississippi Employee Appeals Board (the Board) affirmed the Department’s decision, and the full Board dismissed their appeal because it was not timely filed pursuant to the rules of the Board. Roberts and Cochran also sought judicial relief in Forrest County Circuit Court. The trial court failed to rule on their appeal and on a motion filed by the Department seeking a dismissal of the appeal because of Roberts and Cochran’s failure to exhaust their administrative remedies.

¶ 2. In this appeal, Roberts and Cochran assert the following issues: (1) whether the Appellants’ petition for review should be dismissed for failure to exhaust administrative remedies and (2) whether the discipline imposed on the Appellants was disproportionate to that imposed on others charged with similar violations and improperly motivated by the Appellants’ invocation of their due process rights to a hearing.

¶ 3. This Court dismisses the appeal for lack of jurisdiction.

FACTS

¶ 4. Brenda Roberts and Theresa Cochran were employees of the Mississippi Department of Public Safety and worked as driver’s license examiners.

¶ 5. The Department conducted an investigation into possible violations of the Mississippi State Employee Handbook by officers and civilian employees of the Mississippi Highway Patrol, Troop J., located in Hattiesburg, Mississippi. As a result of the investigation, Roberts and Cochran were among those individuals disciplined for giving passing scores on written, commercial driver’s license tests to applicants who either did not take the test or failed them. They also gave passing scores to applicants for the road exam portion of the commercial test who actually did not take the road exam.

¶ 6. Roberts and Cochran were charged with the following three Group III offenses:

1. Falsification of records, such as, but not limited to, vouchers, reports, time records, leave records, employment applications, or other state documents.
2. Acts of conduct occurring on or off the job which are plainly related to job performance and are of such nature that to continue the employee in the assigned position could constitute negligence in regard to the agency’s duties to the public or to other state employees.
3. Use of official office for personal profit or gain and the acceptance of gratuities contrary to the policy of the department and/or the laws of this state.

¶ 7. Roberts and Cochran admitted to falsifying records, but denied the remaining charges. Both were terminated from their employment with the Department. Other employees were charged with these same acts as well. All other employees, but one, who were charged with Group III offenses were terminated or they resigned. The employees charged with Group II offenses were given discipline other than termination of their employment.

¶ 8. Roberts and Cochran chose to invoke their right to a due process hearing. They pursued an appeal of the Department’s decision to the Employee Appeals Board. An administrative hearing officer heard the appeal on June 30, 1998, and subsequently entered an order on July 8, 1998, upholding the terminations. Roberts and Cochran then filed an appeal to the full Board on July 23,1998, and the Circuit Court of Forrest County on August 6, 1998. Contending that the appeal to the full Board was untimely, the Department filed a motion with the Board to dismiss the appeal before the full Board. This motion was granted on January 22, 1999. The Department then filed in the circuit court a motion to dismiss Roberts and Cochran’s appeal. This motion was never ruled upon.

ANALYSIS AND DISCUSSION OF THE ISSUES

I. WHETHER THE APPELLANTS’ PETITION FOR REVIEW SHOULD BE DISMISSED FOR FAILURE TO EXHAUST THEIR ADMINISTRATIVE REMEDIES

¶ 9. Roberts and Cochran argue that the Board’s reach of authority is not determined solely by its internally-promulgated regulations but also by the statutes as passed by the legislature. They refer to the language of Mississippi Code Annotated section 25-9-129 (Rev.1999) which states in part: “Hearings before the employee appeals board may be conducted by an individual hearing officer or by the board en banc, as provided in state personnel board rules.” Further, Roberts and Cochran point to Mississippi Code Annotated section 25-9-181(2) (Rev.1999) which states: “Any employee aggrieved by a final decision of the employee appeals board shall be entitled to judicial review thereof in the manner provided by law.” Reading these statutes in concert, Roberts and Cochran theorize that a decision by an individual hearing officer is a final decision since the Board has a choice of hearing an appeal en banc or through a hearing officer.

¶ 10. This Court does not subscribe to Robert and Cochran’s interpretation of the proper procedure for exhaustion of administrative remedies before an aggrieved party may seek judicial redress. While section 25-9-129 does allow the Board to conduct hearings through a hearing officer or by the Board en banc, Robert and Cochran fail to consider that portion of the statute which provides that hearings before the Employee Appeals Board shall be conducted “as provided in state personnel board rules.” Therefore, this statutory provision implicates a review of the Mississippi Personnel Board Rules to clarify the Board’s procedures as they relate to the administrative remedies for aggrieved employees.

¶ 11. According to section 10.40.24 of the Mississippi State Personnel Board Policy and Procedures Manuel, “[a]ny party aggrieved by the final written decision and order of a presiding Hearing Officer entered on the hearing of an appeal may file a written Request for Review by Full Board. The request must be filed within ten (10) days after the date the final order is filed.” Miss. St. Pers. Bd. Pol’y & Proc. Man. § 10.40.24 (Rev.1999). This Court has repeatedly and unequivocally declared that a state civil-service employee who has been dismissed from employment must exhaust his or her administrative remedies before seeking judicial review. Mississippi Dept. of Public Safety v. McKnight, 628 So.2d 249, 252 (Miss.1993) (citing Hood v. Mississippi Dep’t of Wildlife Conservation, 571 So.2d 263, 268 (Miss.1990)). Moreover, Section 10.40.3 states:

No person may file an appeal with the Employee Appeals Board until all agency-level grievance procedures have been exhausted in accordance with State Personnel Board policies, rules and regulations, with exceptions as noted elsewhere in the State Personnel Board Policies and Procedures Manual. When the disciplinary action results in dismissal, an appeal may be filed directly with the Employee Appeals Board. Except as authorized under federal law, no aggrieved party may file a petition for judicial review with a court of competent jurisdiction until a final written decision and order on a full board review has been filed by the Employee Appeals Board, (emphasis added).

See Miss. St. Pers. Bd. Pol’y & Proc. Man. § 10.40.3. (1999), revised in 1999.

¶ 12. In McKnight, the Mississippi Supreme Court held that a highway safety patrol officer was not entitled to a review of a hearing officer’s decision dismissing him from the Mississippi Highway Safety Patrol for committing various violations of state agency regulations. The officer had failed to file a timely appeal as required by the Board. The court acknowledged that the Board required aggrieved parties to file a written request for review by the full Board within ten days after date of the filing of the order of the hearing officer. However, the officer did not file his appeal until over a month after the hearing officer issued his written decision and order.

¶ 13. Here, the order of the Board’s hearing officer was entered on July 8, 1998. Cochran and Roberts did not file their request for full Board review until July 23, 1998. A total of fifteen days had elapsed between the order and Roberts and Cochran’s appeal. This period of time clearly exceeded the ten-day allowance for Roberts and Cochran’s appeal; therefore, the full Board correctly dismissed their appeal.

¶ 14. Having failed to exhaust their administrative remedy, Roberts and Cochran forfeited their right to seek judicial redress. Therefore, even though Roberts and Cochran sought judicial relief by filing an appeal in the circuit court, their failure to exhaust their administrative remedies left the circuit court without jurisdiction. Consequently, the circuit court should have dismissed Roberts and Cochran’s appeal. However, the failure of the trial court to rule on the Department’s motion to dismiss does not preclude this Court from dismissing the appeal. “Where the [full Board] lacks jurisdiction because of an appellant’s failure to give timely notice of appeal, neither the circuit court nor this Court has jurisdiction to hear the substance of [the] appeal.” Slay v. Mississippi Dept. of Agriculture and Commerce, 771 So.2d 968, 970 (¶ 7) (Miss.App.Ct.2000) citing Mississippi Department of Public Safety v. McKnight, 623 So.2d 249, 252 (Miss.1993).

¶ 15. This Court accordingly dismisses this appeal for lack of jurisdiction. Because this Court lacks jurisdiction, all other issues presented by the appellants cannot be addressed.

¶ 16. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: CHANDLER, J.,

text:
    Lincoln E. WARREN, Sr., By Lincoln E. WARREN, Jr., Conservator, Appellant, v. Jack L. GLASCOE and Margaret C. Glascoe, Appellees.
    No. 2001-CA-01368-COA.
    Court of Appeals of Mississippi.
    Feb. 11, 2003.
    Rehearing Denied May 20, 2003.

      Bill Waller, Jackson, attorney for appellant.
    William W. McKinley, Joshua J. Wiener, Jackson, attorneys for appellee.
    Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. On November 7, 1998, fifteen year old Daniel Shields was driving his grandfather’s vehicle when he collided with Lincoln Warren, Sr. on County Line Road in Ridgeland, Mississippi. Warren filed suit against Daniel’s grandparents, Jack and Margaret Glascoe, claiming vicarious liability and negligent supervision. The Hinds County Circuit Court granted summary judgment in favor of the Glascoes stating there was no genuine issue of material fact. Warren appeals. Finding no error, we affirm.

FACTS

¶ 2. Fifteen year old Daniel Shields spent a Friday night with his grandparents, Margaret and Jack Glascoe, at their home in Jackson. On the following morning, Daniel, who had received his learner’s permit approximately thirty days earlier, drove Margaret to Yazoo City and back to Jackson in Jack’s automobile. The two ran errands consisting of going to Margaret’s deceased mother’s home in Yazoo City to pick up some items and to Margaret’s hair appointment in Canton. On the return trip, Daniel collided with a vehicle driven by Lincoln Warren, Sr. on County Line Road in Ridgeland. Warren alleges that since the accident he suffers from a semi-comatose condition.

¶ 8. The Mississippi Court of Appeals has previously heard an appeal arising out of this case. Warren v. United States Fidelity and Guaranty Company, 797 So.2d 1043 (Miss.Ct.App.2001). Warren first filed suit against the Glascoes’s insurance company United States Fidelity and Guaranty Company. Id. at 1044(¶ 2). Warren claimed the Glascoes were negligent in their supervision and in entrusting the car to Daniel. Id. The trial court granted summary judgment and this Court affirmed stating that the Glascoes’s insurance policy excluded coverage for personal injuries arising out of the causes of action the plaintiff claimed. Id. at 1045(¶ 10).

LAW AND ANALYSIS

¶4. In cases involving the review of a summary judgment this Court must employ a de novo standard. Rawson v. Jones, 816 So.2d 367, 368(¶ 4) (Miss.2002). Thus, this Court uses the same standard as the trial court. Clark v. Illinois Central Railroad Company, 794 So.2d 191, 194(¶ 4) (Miss.2001). In reaching this determination, this Court examines affidavits and other evidence to determine whether a triable issue exists, rather than for the purpose of resolving that issue. M.R.C.P. 56 cmt. The evidence must be viewed in the light most favorable to the nonmoving party, who is to be given the benefit of every reasonable doubt. Smith v. Sanders, 485 So.2d 1051, 1054 (Miss.1986).

I. WHETHER THE EVIDENCE ESTABLISHES THAT THERE IS A GENUINE ISSUE OF MATERIAL FACT WHICH SHOULD HAVE PREVENTED THE TRIAL COURT FROM GRANTING SUMMARY JUDGMENT ON THE BASIS THAT THE APPELLEE IS VICARIOUSLY LIABLE FOR THE APPELLANT’S INJURIES AS A MATTER OF LAW.

¶ 5. The appellant purports that this is a case of first impression. The appellant contends that the Glascoes are vicariously liable, not under the family purpose doctrine, but under an agency doctrine. He contends the grandparents had a master/servant relationship with their grandson because the trip was for the benefit of the grandparents with the grandmother serving as the co-driver. He argues that the grandson was simply serving as the chauffeur.

¶ 6. The appellant states that the trial court was in error because the judge based his summary judgment ruling on the abolished family purpose doctrine. Under the common law family purpose doctrine the head of a household can be held liable for the negligent acts of a member of the family while using a family vehicle. Smith v. Dauber, 155 Miss. 694, 698, 125 So. 102, 102 (1929). Mississippi courts have consistently held that the family purpose doctrine does not apply in Mississippi. Prewitt v. Walker, 231 Miss. 860, 864, 97 So.2d 514, 516 (1957). Vicarious liability for family members is based upon the following statute.

[ A]ny negligence or wilful misconduct of a minor under the age of seventeen years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly or severally liable with such minor for any damages caused by such negligence or wilful misconduct.

Miss.Code Ann. § 63-1-25 (Rev.1996).

¶ 7. In Houston v. Holmes, 202 Miss. 300, 303, 32 So.2d 138, 139 (1947), the Mississippi Supreme Court stated that statutes in “derogation of the common law are, as a general rule, strictly construed.” Such a statutory liability is not to be extended “beyond that which is clearly indicated by its express terms.” Id. Daniel’s father was the person who signed Daniel’s license but he is not a defendant in this case. The statute does not apply to the defendants in this case.

¶ 8. In arguing vicarious liability based on a master/servant relationship, the appellant cites to a Wisconsin case where the father was held liable for his son’s negligent operation of his lawn mower. Giese v. Montgomery, 111 Wis.2d 392, 331 N.W.2d 585, 597 (1983). The court ruled that the son was acting as the father’s servant; therefore, creating an agency relationship, making the father liable for the negligent operation of the lawnmower. Id. “To act as master the parent must obtain some benefit or advantage from an activity undertaken by the child at the request or express desire of the parent.” Id. “The business need not be an undertaking for profit, but embraces any benefit which may inure to the parent.” Id.

¶ 9. The appellant argues that the same situation applies here. The appellant states the trip leading up to the accident was conceived by the Glascoes for their benefit, including transportation of objects from the home of Margaret’s mother in Yazoo City and Margaret’s beauty shop appointment in Canton.

¶ 10. Mississippi case law establishes that a master/servant relationship can be created between family members. Terry v. Smylie, 161 Miss. 31, 40, 133 So. 662, 664 (1931). However, the relationship cannot be presumed but must clearly be established. Slaughter v. Holsomback, 166 Miss. 643, 654, 147 So. 318, 321 (1933). Where the general relationship of master and servant is shown, a rebuttable presumption is raised that the servant at the time of the accident was engaged in the scope of his employment and in the furtherance of the business of the master. Id..

¶ 11. Mississippi case law indicates that a master/servant relationship can be created by an employer/employee relationship. Id. An employer/employee relationship is established by a “written or oral, expressed or implied” contract. Miss.Code Ann. § 71-3-3 (Rev.2000). We do not find that the loosely formed agreement between the defendants and their grandson constitutes an employer/employee relationship.

¶ 12. Mississippi also recognizes that a master/servant relationship can be created where the automobile owner and driver are both involved in a joint mission or venture. Terry v. Smylie, 161 Miss. 31, 38, 133 So. 662, 664 (1931). In Buford v. Horne, 300 So.2d 913, 916 (Miss.1974), the court established that a joint venture is one in which the occupants of the vehicle are on a journey that involves a “community of interest and obligation.” It is key that each occupant has the right to a voice in the operation and control of the vehicle. Id.

¶ 13. In Terry, 161 Miss, at 39-40, 133 So. at 664, two brothers wrecked their automobile while driving to a pleasure resort. The brother in the passenger seat was the owner of the automobile. Id. The plaintiff sued the owner arguing that the owner was vicariously liable for his injuries under a master/servant relationship. Id. The court held that the owner was liable because they were “going on a joint enterprise.” Id. The court stated that it did not matter that they were not on a business trip. Id. In Avent v. Tucker, 188 Miss. 207, 220, 194 So. 596, 600 (1940), the court held the wife vicariously liable for her husband’s negligence in driving her car. The facts indicated that she was present in the automobile and that the two were in route to pick up their mail. Id., 188 Miss, at 220, 194 So. at 599. The court stated that where the owner and the driver are driving together on a joint mission or venture, then a master/servant relationship has been created. Id.

¶ 14. In the case at bar, the owner, Jack Glascoe, was not a passenger. Although Margaret was a passenger in the car, she did not own it. The facts indicate that the mission of the trip was not for the mutual benefit of both the occupants. Therefore, it cannot be held that Jack or Margaret had a master/servant relationship with Daniel created by a joint venture.

II. WHETHER THE EVIDENCE ESTABLISHES THAT THERE IS A GENUINE ISSUE OF MATERIAL FACT WHICH SHOULD HAVE PREVENTED THE TRIAL COURT FROM GRANTING SUMMARY JUDGMENT ON THE BASIS THAT THE APPELLEES NEGLIGENTLY SUPERVISED THE MINOR’S DRIVING.

¶ 15. The appellant lists four reasons why the grandparents were negligent: (1) allowing a beginner driver to drive a large vehicle on main roads and highways; (2) not controlling the activities of the driver, including a left turn into a head-on collision; (3) allowing Daniel to drive over a seven-hour period of time through numerous areas including stops to accommodate the needs and wishes of the co-driver; and (4) failure to warn.

¶ 16. To prove negligent supervisionlike all negligence claims, requires the plaintiff to establish “the existence of a duty of care, a breach of duty, proximate causation, and compensable damages.” Chandler v. Coleman, 759 So.2d 459, 463(¶ 16) (Miss.Ct.App.2000).

¶ 17. “Common law traditionally has not imposed a broad duty upon individuals to control the conduct of others.” Hazel Glenn Bell, Tort Liability for Intentional Act of Family Members: Will Your Insurer Stand By You?, 68 Tenn L.Rev. 1, 6 (2000). However, under common law a special relationship is recognized between children and parents. Williamson v. Daniels, 748 So.2d 754, 759-760(¶ 13) (Miss.1999). This special relationship imposes a duty upon a parent to exercise reasonable care in the supervision of their minor children so as to prevent them from intentionally injuring others. Id. The Mississippi Supreme Court has held that a parent may only be held hable for negligent supervision if they have notice of prior malicious acts similar to the act within the complaint. Id.

¶ 18. This case does not involve parents but grandparents. There is no Mississippi case law that extends the special duty recognized between parent and child to other members of the family. Furthermore, there is no evidence that the defendants had notice of Daniel committing pri- or malicious acts. Neither are there any facts to show Daniel acted maliciously in this case, only negligently.

¶ 19. The appellant cites to a New Jersey case which recognizes a special duty a passenger holds when accompanying a minor driver who holds only a learner’s permit. Forker v. Pomponio, 60 N.J.Super. 278, 158 A.2d 849, 851 (1960). In Forker, the defendant was found guilty of negligence in his supervision of the driver of his car, a permittee, who ran into the rear of a car which was stopped at a stop sign. Id. The special duty for the licensee is provided by a statute in that state which indicates that a driver with only a permit must have a licensed driver in the vehicle who is actively supervising. Id. It is important to note that Mississippi’s statute only requires that the licensee be seated in the front passenger seat and over the age of twenty-one. Miss.Code Ann. § 63-1-21 (Rev.1996).

¶ 20. Mississippi case law does recognize a duty of care for passengers in a vehicle. Mississippi Central v. Roberts, 178 Miss. 487, 504, 160 So. 604, 606 (1935).

A guest or passenger in a vehicle is not chargeable with the negligence of the driver over whom the passenger has no control, until the guest or passenger has become aware of that negligence and of the probable danger thereof and there upon fails reasonably to remonstrate or to escape, if escape be safely or reasonably possible.

Id. The law does not require the passenger to become what is “commonly called a ‘backseat driver’ and that he must anticipate danger at all event whether it is apparent or not.” Yazoo M.V.R. Co. v. Beasley, 158 Miss. 370, 380, 130 So. 499, 502 (1930).

¶ 21. Applying the standard to the case at bar, there is nothing in the record to show what Margaret was doing or saying when approaching the intersection, or to show that she knew, or had any reason to believe, that the driver would violate the law.

III. WHETHER THE EVIDENCE ESTABLISHES THAT THERE .IS A GENUINE ISSUE OF MATERIAL FACT WHICH SHOULD HAVE PREVENTED THE TRIAL COURT FROM GRANTING SUMMARY JUDGMENT ON THE BASIS THAT THE APPELLEE NEGLIGENTLY ENTRUSTED HIS VEHICLE TO THE MINOR.

¶ 22. An owner of a vehicle can only be held liable for negligently entrusting their vehicle to another if the owner knew, or by the exercise of reasonable care should have known, that the individual using the vehicle was a “reckless or incompetent driver.” F.B. Walker & Sons v. Rose, 223 Miss. 494, 507, 78 So.2d 592, 595 (1955). In such cases, the owner is deemed responsible for any injuries which may result as a proximate consequence of the user’s “recklessness or incompetency.” Id. at 595.

¶23. As shown by the record, Daniel was operating the vehicle in accordance with directives required of him by the State of Mississippi. Miss.Code. Ann. § 63-1-38 (Rev.1996). Daniel was of sufficient age to hold a valid learner’s permit. Id. He obtained that learner’s permit by-meeting all the requirements of the Mississippi Department of Public Safety. Id. Daniel had never received any citations and he had never been involved in any other automobile accidents prior to the date of this accident. Daniel was operating the vehicle in accordance with state law by having a licensed driver, Margaret Glascoe, over the age of twenty-one in the front seat of the vehicle with him. Id.

¶ 24. In order to demonstrate a case of negligent entrustment, plaintiffs must show that Jack knew or should have known that Daniel was “reckless or incompetent” as a driver of the vehicle, and that it was precisely this recklessness or incompetency which resulted in the appellant’s injury. Under the record submitted before the trial court in the summary judgment proceedings, there was simply no evidence that Mr. Glascoe had reason to believe Daniel was a reckless or incompetent driver.

¶ 25. Accordingly, we rule that the trial court did not err in granting summary judgment in favor of the appellees.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED. COSTS ARE TAXED TO THE APPELLANT.

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