author: CHANDLER, J., SOUTHWICK, P.J.,

text:
    Deborah McDONALD, Appellant v. I.C. ISAACS NEWTON COMPANY and Liberty Mutual Insurance Company, Appellees.
    No. 2002-WC-02084-COA.
    Court of Appeals of Mississippi.
    March 2, 2004.
    Rehearing Denied May 25, 2004.
    Certiorari Denied Aug. 5, 2004.

      Lance L. Stevens, Jackson, attorney for appellant.
    H. Byron Carter, III, Gulfport, attornéy for appellee.
   CHANDLER, J.,

for the Court.

¶ 1. Deborah Ann McDonald has appealed an order of the Circuit Court of Newton County that affirmed, in total, an order of the Workers’ Compensation Commission. The Commission found that McDonald had sustained compensable injuries to both of her upper extremities which entitled her fifty weeks of permanent partial disability benefits for the 25% loss of use of her left arm, and 100 weeks of permanent partial disability benefits for the 50% loss of use of her right arm. McDonald contends that she is entitled to 400 weeks of compensation for the total industrial loss of use of both arms plus penalties, minus permanent partial disability benefits paid. In a footnote to her appellate brief McDonald explains that while she could legitimately make a claim for 450 weeks of compensation for permanent and total disability benefits, she has chosen not to “push the envelope” and has therefore limited her claim to 400 weeks of compensation for total industrial loss of use of both arms.

FACTS

¶ 2. At the time of the hearing of this matter on July 5, 2001, McDonald was forty years old and had a high school education but no additional education or vocational training beyond that. McDonald testified that she began work as a seamstress for I.C. Isaacs Newton Company in 1982 or 1983 in a • “back pocket tacking” job which lasted approximately eight years. She left the Newton Company to go to work for Bon-Home Shirt Factory at a job which lasted about a year. McDonald returned to the Newton Company in 1993 to a “hemming” job. She was in the performance of her hemming job when the injury occurred.

¶3. On or about September 17, 1996, McDonald was “pulling on pants when she felt a pulling sensation in her wrists.” She received medical treatment and eventually underwent surgery on one wrist. After about six weeks McDonald attempted to return to her hemming job, but was unable to perform the duties of the job. She was then assigned to a lighter duty job as a “reece.”- Because of the repetitive nature of the reece job McDonald was unable to perform those duties. She also experienced great difficulty in performing a subsequent job to which she was assigned. However, McDonald worked at her last assigned position until on or about April 21, 1998, when she underwent surgery to her other wrist. The Newton Company closed its plant sometime shortly thereafter.

¶ 4. Prior to McDonald’s injury as well as subsequent to her injury she worked for her church on a part-time basis as a custodian. McDonald testified that she performed a full range of custodial duties at the church prior to her first wrist surgery but said that since the surgery the church has been significantly accommodating to her physical limitations. She is no longer required to vacuum and is allowed discretionary breaks to reduce the stress on her physically.

¶ 5. McDonald testified that she sought employment with numerous employers in the Newton County area. She also testified that she was not offered a job with any of the other Newton Company plants after her plant closed, but stated that at any rate she would not be able to perform the duties of her old job. It was also her testimony that since her last surgery she has very little gripping strength and her hands go numb causing her to drop things. McDonald admitted that, on the advice of counsel, she refused the assistance of the Newton Company’s vocational expert in locating a job.

¶ 6. Jennifer Oubre was called as an expert witness by the Newton Company. Oubre admitted that McDonald probably could not return to her assembly line job at the Newton Company; however, it was her opinion that McDonald is employable.

¶ 7. McDonald’s treating physician, Dr. James Green, diagnosed her with carpal tunnel syndrome of the right wrist and early carpal tunnel syndrome of the left wrist. Carpal tunnel surgery was eventually performed on both wrists. McDonald was assigned a 5% impairment to the left wrist with limitations of no repetitive use of both hands over an extended period of time.

¶ 8. Another of McDonald’s treating physicians, Dr. Sheila Lindley, referred McDonald to the St. Dominic Memorial Hospital Hand Management Center for a functional capacity evaluation. McDonald was assigned a 10% impairment of the right arm and a 0% impairment of the left arm. She was restricted to “[n]o overhead work of any nature including occasional overhead, no lifting greater than 15 pounds occasionally, no greater than 20 pounds of pulling or pushing, and no bilaterally repetitive motion.” McDonald was also diagnosed as having significant problems with cold exposure in both hands.

¶ 9. The administrative law judge found that the preponderance of the evidence showed that McDonald had suffered a medical impairment beyond the medical impairment ratings assigned. It was the administrative law judge’s finding that McDonald had suffered a 25% loss of industrial use of the left upper extremity and a 50% loss of industrial use of her right upper extremity. The administrative law judge further found that McDonald was entitled to penalties and interest as provided by Mississippi Code Annotated Section 71-8-37 and reasonable and necessary medical services and supplies as the nature of her injury and the process of her recovery may require, consistent with Mississippi Code Annotated Section 71r-3-15 and the Medical Fee Schedule.

¶ 10. The administrative law judge’s order awarded benefits for a period of 37.5 weeks as compensation for disability to McDonald’s left arm and 75 weeks as compensation for disability to her right arm. The .Full Commission found that “because the maximum compensation payable for total loss of use of an arm is 200 weeks, we hereby amend this provision in the Order to provide that Deborah McDonald is enti-tied to 50 weeks of permanent partial disability benefits for the 25% loss of use of her left arm, and 100 weeks of permanent partial disability benefits for the 50% loss of use of her right arm.”

ANALYSIS

¶ 11. The standard of review in worker’s compensation cases is limited by the substantial evidence test. This Court will not reverse the decision of the Workers’ Compensation Commission unless it finds that the decision is clearly erroneous and contrary to the overwhelming weight of the evidence. Smith v. B.C. Rogers Processors, Inc., 743 So.2d 997, 1002 (¶ 13) (Miss.Ct.App.1999).

¶ 12. McDonald' contends that on the basis of the criteria set forth in Meridian Professional Baseball Club v. Jensen, 828 So.2d 740 (Miss.2002), the Commission was required to find that she has suffered a total industrial loss of use to each arm. In Meridian Baseball, Blair Jensen, a twenty-one-year-old high school graduate suffered an injury to his left arm while employed as a professional baseball player for the Meridian Brakemen. Jensen had worked as a sports coach, construction worker and produce packer between baseball seasons. His average weekly wage at the time of the injury was $187.50. After the injury Jensen worked a variety of part-time jobs while going to school. By the time of his hearing for workers’ compensation, he was working full time at a medical clinic and making approximately $320 a week, while continuing his education at Fresno State University. Id. at (¶ 2).

¶ 13. Even though the opinion of the medical experts was that Jensen’s arm was only 7% functionally impaired after maximum recovery, Jensen sought workers’ compensation benefits for full occupational loss of use of his left arm, because the medical evidence also indicated that he would be unable to return to “his usual profession as a baseball catcher” and was permanently restricted from work requiring repetitive overhead lifting. Id. at (¶ 3).

¶ 14. The administrative law judge found that even though Jensen could no longer play professional baseball he earned as much or more working part time while going to college than he did as a baseball player and awarded benefits for a 25% occupational loss of use of his left arm. Id. at (¶ 4). The Full Commission affirmed, and Jensen appealed. The circuit court ruled in Jensen’s favor finding that total loss of use to a scheduled member occurs when a claimant is unable to perform • the - “substantial acts of his usual employment” and that “usual employment” refers to a claimant’s job at the time of injury. Id. at (¶ 5). This Court reversed the circuit court’s judgment and reinstated the order of the Commission finding that, while the Commission must look to the evidence to determine if the claimant could still perform the substantial acts of his usual employment, the phrase “usual employment” has a broader meaning than the job held by the claimant at the time of injury and that Jensen’s recent jobs, activities and education constituted substantial evidence to support the Commission’s finding of less than a total loss of use. Id. at (¶ 6).

¶ 15. On grant of certiorari, the Mississippi Supreme Court, in affirming this Court, found that Jensen was not entitled to full occupational loss for injury to his arm, as he suffered no loss of wage-earning capacity. Nevertheless, in reaching this conclusion the court held that where a permanent partial disability renders a worker unable to continue in the position held at the time of injury, such inability creates a rebuttable presumption of total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. Id. at (¶ 21). The court held that the presumption arises when the claimant establishes that he has made a reasonable, albeit unsuccessful, effort to find work in his usual employment, or presents other proof of his inability to perform the substantial acts of his usual employment. Id. Rebuttal can be shown by all the evidence concerning wage-earning capacity, including the claimant’s education and training, age, continuance of pain, and any other related circumstances. Id.

¶ 16. In the case at bar, the Commission found that the substantial evidence supported that McDonald suffered a permanent partial disability to each of her arms which rendered her unable to continue in the position she held at the time of her injury. On the basis of Meridian Baseball, such inability created a rebutta-ble presumption of total occupational loss of the members, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. Id. at (¶21). The question this Court must answer is whether the Newton Company successfully rebutted the presumption of total occupational loss of the members with proof of McDonald’s ability to earn the same wages which she was receiving at the time of injury.

¶ 17. The proof was that all of the jobs McDonald had held prior to her injury were assembly line/production tasks which required the repetitive use of her hands and arms for grasping and lifting. As a result of her injury, McDonald is forever barred from the performance of this kind of activity. At the time of the hearing, McDonald was forty years old with only a high school education. Her only employment at that time was as a part-time church custodian which paid wages that were far less than what she earned in her previous job.

¶ 18. At the hearing before the administrative law judge, the Newton Company offered no proof of its own that McDonald possessed the ability to earn the same wages she was receiving at the time of injury to rebut the presumption of total occupational loss of use of her upper extremities. In its appellate brief, the Newton Company alleged that:

Ms. McDonald was only 37 at the time she reached MMI. She has a high school degree, which is better than most Mississippians. She has a driver’s licence and a vehicle. She has worked as a seamstress performing many different tasks and not strictly the hemming job she was performing in September of 1996. She has worked as a custodian and supervised others in that position. Therefore, Mr. [sic] McDonald has many attributes and skills that are transferable to other employment.

¶ 19. The sum of these allegations do not rebut, in any meaningful way, the presumption that McDonald, as a result of the industrial loss of use of her arms, no longer possesses the ability to earn the same wages that she was receiving at the time of her injury. In her present condition, McDonald can best be described as a manual laborer who no longer has the ability to labor. She is permanently and totally disabled in the use of her upper extremities to earn a living. The Commission failed to acknowledge the implications of such a disability in a person in McDonald’s circumstances in its award of permanent partial disability benefits rather than permanent total occupational disability benefits.

¶ 20. In this regard, the Mississippi Supreme Court has held that “if a claimant is permanently and totally occupationally disabled, he should be entitled to compensation for a permanent total occupational disability, not a permanent partial disability.... To say that a person with a loss or loss of use of a scheduled member has but a permanent partial disability fails to take account of loss of wage earning capacity.” Smith v. Jackson Const. Co., 607 So.2d 1119, 1127 (Miss.1992). The court went on to hold that permanent partial disability benefits paid under “Section 71-3-17(c), including its familiar schedule, proceeds on the faith that the worker will be able to resume the same or other employment after he adapts to his disability. If after this period of adjustment the worker remains permanently and totally occupationally disabled, he by definition does not have a permanent partial disability and so the schedule found in Section 71-3-17(c) cannot control.” Id. at 1128. The court found that “[s]uch a person should of right receive permanent and total disability compensation. Any other result is a travesty of justice which denies an employee injured in the course of his employment the compensation he is lawfully entitled to receive.” Id.

¶ 21. “Where an employee suffers an injury covered by the schedule in Section 71 — 3—17(c) and where that injury results in a permanent loss of wage earning capacity within Section 71-3-17(a), the latter section controls exclusively and the employee is not limited to the number of weeks of compensation prescribed in Section 71-3-17(c)’s schedule.” Id.

¶ 22. The substantial evidence showed that McDonald, a forty-year-old high school graduate, unsuccessfully sought employment, had no job skills other than performing manual labor, and was severely limited in performing manual labor due to her injury. The Commission’s award of compensation for a permanent partial loss of scheduled members took no account of McDonald’s loss of wage earning capacity. “If a claimant is unable to earn wages despite only a loss or loss of use. of a scheduled member, then the claimant ■ is permanently and totally disabled. Compensation for a permanent partial disability for loss or loss of use of a scheduled member should only be applicable when a claimant has not sustained a permanent and total occupational disability.”. Id.

¶ 23. The dissent concedes that under the holding of Meridian Baseball the presumption arose that McDonald could no longer work, at the position she held when she was injured. It claims, however, that the. presumption was overcome by evidence that there were other positions available for which McDonald was suitable; therefore, this Court should affirm the Commission’s decision. As stated previously in this opinion, the rebuttable presumption of total occupational loss of members created by Meridian Baseball must be overcome by proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury. Neither the Commission, nor the Newton Company, nor the dissenting opinion offered any proof of that. In the absence of any proof that McDonald has the ability to earn the same wages that she was receiving at the time of her injury, she is entitled to permanent and total disability compensation.

i ¶ 24. This Court finds that McDonald sustained a total loss of wage earning capacity and is entitled to compensation pursuant to Mississippi Code Annotated Section 71-3~17(a). The judgment of the circuit court is reversed and the cause is remanded to the Commission for proceedings consistent with this opinion.

¶ 25. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS REVERSED AND THIS CAUSE IS REMANDED TO THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING, P.J., BRIDGES, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR. SOUTHWICK, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., AND THOMAS, J.

SOUTHWICK, P.J.,

Dissenting:

¶ 26. The majority concludes that McDonald has sustained a total loss of wage earning capacity. It rejects the Workers’ Compensation Commission’s fact-finding that the claimant was limited but not totally disabled by injuries to her wrists. Since I believe that there was substantial evidence upon which the Commission could rely to award McDonald benefits based on a partial loss of use of a scheduled member, I respectfully dissent.

¶ 27. Of central importance, the majority argues that unless evidence is introduced that the claimant can earn the same wages as before the injury, she is considered totally and permanently disabled. Just to state the proposition is to highlight its error. With respect, the workers’ compensation statutes and the easelaw do not create such an imbalance between claimants and employers. If the evidence reveals that the claimant cannot earn the level of wages as before but may still be gainfully employed despite a permanent injury to a scheduled member, then there is some permanent disability but it is not total.

¶28. A hearing was conducted before an administrative law judge. Offered into evidence were the medical records and affidavits of Dr. Shelia Lindley, Dr. James Green and St. Dominic-Jackson Memorial Hospital. The judge heard testimony from Jennifer Oubre who qualified as an expert witness in vocational rehabilitation. Oubre testified that while McDonald was limited in the type of work she could do, she was not unemployable. During the hearing, Oubre testified that based on the job search she conducted, the following job titles were possibilities for McDonald: front desk clerk positions; security guards; cashier positions; greeters; housekeepers; and switchboard operators. Jobs considered as non-repetitive light positions were available. These positions were available within thirty miles of McDonald’s home. Oubre testified that in her opinion McDonald, with her restrictions, qualified for jobs. This opinion was based on the qualifications of the physicians.

¶ 29. These positions certainly keep the principles of total loss of wage earning capacity from being applied. The majority improperly invokes the rule that total incapacity that arises from injury to scheduled members may still lead to an award of benefits for total, permanent disability. Smith v. Jackson Const. Co., 607 So.2d 1119, 1127 (Miss.1992). In fact, the majority grants benefits that the claimant never sought. As pointed out in McDonald’s brief, the claimant has always sought benefits specifically based on the scheduled member scheme and consciously did not “push the envelope” (the attorney’s phrase) on permanent, total disability. I find that the claimant’s attorney was correct and the majority is in error.

¶ 30. The only viable issue on appeal is not total disability, but whether there is under scheduled member law, an inability to perform the substantial acts of the usual employment. The Commission awarded 50 weeks of permanent partial disability benefits for the 25% loss of use of her left arm and 100 weeks of permanent partial disability benefits for the 50% loss of use to, her right arm was correct. As a minimum, a claimant always will receive benefits for a scheduled member injury based on the percentage of loss of medical loss. The benefits awarded by the Commission are greater than the medical limitation percentages, and that is acceptable when there is evidence that the injuries have caused a greater impact on the worker’s ability to earn a living.

¶ 31. In a recent decision, the Supreme Court reiterated that the issue in a scheduled member case when a claimant is seeking benefits for greater than the medical limitations, is whether the injury “prevents the worker from performing the substantial acts of his usual employment.” Meridian Prof'l Baseball Club v. Jensen, 828 So.2d 740, 746 (Miss.2002). In Jensen, the court declared that the job the claimant was performing at the time of the injury was not “necessarily the ‘usual employment.’ ” Id. at 747-48. Instead, the usual employment is “broader in scope than the job held at the time of injury,” and includes “jobs in which the claimant has past experience, jobs requiring similar skills,” or other jobs for which the worker is suited. Id. at 747.

¶ 32. Because of Jensen, there is a re-buttable presumption that arises once a claimant with a scheduled member injury presents evidence that he or she is “unable to continue in the position held at the time of injury....” The presumption is of a “total occupational loss of the member, subject to other proof of the claimant’s ability to earn the same wages which the claimant was receiving at the time of injury.” Id.

¶ 33. The presumption arose since McDonald could no longer work at the position that she held when she was injured. Evidence of other available positions was offered to rebut. According to Jensen, these other positions are relevant to rebut the presumption if they are “jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.” Id.

¶ 34. I find no error in the Commission’s relying on the evidence that was received as rebutting the presumption. There was substantial evidence of other positions for which McDonald was suitable. She received an award under scheduled member principles that was substantially higher than her medical limitations. We should affirm.

McMILLIN, C.J., AND THOMAS, J., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Jimmie McKNIGHT, Appellant v. MOUND BAYOU PUBLIC SCHOOL DISTRICT, Appellee.
    No. 2003-CC-00484-COA.
    Court of Appeals of Mississippi.
    March 23, 2004.
    Rehearing Denied June 8, 2004.
    Certiorari Denied Aug. 5, 2004.

      Preston Davis Rideout, Greenwood, attorney for appellant.
    John Richard May, Sanford E. Knott, Jackson, attorneys for appellee.
    Before SOUTHWICK, P.J., THOMAS and GRIFFIS, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. The Mound Bayou Public School District was placed under the supervision of the Mississippi Board of Education due to the district’s financial problems. After that supervision began, Jimmie McKnight was informed that he would lose his position as an assistant principal in the next school year, though he had been notified prior to the beginning of state supervision that his contract would be renewed. We find that the commencement of supervision by the State Board of Education overrode the procedures otherwise available to employees on matters of contract renewal. Consequently, we affirm the lower court’s upholding of the Mound Bayou District’s decision.

FACTS

¶ 2. The plaintiff, Jimmie McKnight, was a twenty-eight-year long educator in the Mound Bayou Public School District. During the 2000-2001 school year, he was athletic director for the District and also served as assistant principal and head basketball coach at John F. Kennedy High School. The Mound Bayou School Board determined at a meeting on March 7, 2001, to offer McKnight a contract for the same duties at the same pay during the 2001-2002 year.

¶ 3. The District had for some time been suffering significant financial problems. The Mississippi Department of Education sent written notice to the District on March 16, 2001, just nine days after the school board meeting, that the District’s sizeable budget deficit required the appointment of a financial adviser. State statutory authority for such an appointment exists, the requirements and effects of those statutes being central to this appeal. The adviser recommended that the assistant principal position be abolished.

¶ 4. McKnight was sent a letter on June 27, 2001, that of the three positions that he had held the previous year, the assistant principalship would no longer exist. He requested a hearing, at which proof of the dire financial condition of the District was introduced. The deficit was said to be about $300,000 for the fiscal year that ended in June 2000. The financial adviser found that elimination of personnel and positions was required as part of the remedy, that the two assistant principal posts cost the District about $42,000, and these positions were appropriate ones to eliminate.

¶ 5. The school board in September upheld the decision to eliminate the assistant principal position for the 2001-2002 school year. On appeal to chancery court, the decision was affirmed. McKnight continues his quest for judicial relief before this Court.

DISCUSSION

¶ 6. The fundamental issue in this suit is whether the appointment of a financial adviser for a financially troubled school district permits the reconsideration of personnel decisions after the date that usually is required for informing employees that their contracts will not be renewed. For reasons that we will explain, we conclude that the District had the right upon the advice of the state-appointed financial adviser to withdraw the contract with McKnight.

¶ 7. The legislature has given the State Auditor discretion to audit the financial records of school districts. Miss.Code Ann. § 37-9-18 (Rev.2001). If as a result of the audit, “the State Auditor determines the existence of serious financial conditions in the district, the State Auditor shall immediately notify the State Board of Education;” the State Superintendent is then to order the affected district to “cease all expenditures until a financial advisor is appointed by the state superintendent.” Id. These events occurred as to the Mound Bayou School District.

¶ 8. The financial adviser is the agent of the State Board of Education and must be a certified public accountant or a “qualified business officer.” Id. The authority of the adviser is broad, commensurate with the financial problems that the adviser has been sent to rectify. Acting with the approval of the State Board of Education, the adviser performs these duties, among others:

(a) Approve or disapprove all expenditures and all financial obligations of the district;
(b) Ensure compliance with any statutes and State Board of Education rules or regulations concerning expenditures by school districts;
(c) Review salaries and the number of all district personnel and make recommendations to the local school board of any needed adjustments. Should such recommendations necessitate the reduction in local salary supplement, such recommended reductions shall be only to the extent which will result in the salaries being comparable to districts similarly situated, as determined by the State Board of Education. The local school board, in considering either a reduction in personnel or a reduction in local supplements, shall not be required to comply with the time limitations prescribed in Sections 37-9-15 and 37-9-105 and, further, shall not be required to comply with Sections 37-19-11 and 37-19-7(1) in regard to reducing local supplements and the number of personnel.

1997 Miss. Laws ch. 386, § 1, codified as Miss.Code Ann. § 37-9-18 (emphasis added).

¶ 9. The italicized language refers to timing requirements of other statutes. Those referenced statutes are relied upon by McKnight. One of the statutes provides that by February 15 of each year, recommendations will be made for the employment of assistant superintendents and principals. Those recommendations must be approved by the school board absent good reason to reject them. Miss.Code Ann. § 37-9-15 (Rev.2001). McKnight did not have either of those positions. The other referenced statute provides that if an employee of a school district is not to have his contract renewed, the employee shall be notified of that by the April 15 immediately preceding the new school year. Miss.Code Ann. § 37-9-105 (Rev.2001). That statute applied to McKnight’s contract renewal.

¶ 10. This latter statute has been somewhat amended since the events that precipitated this suit. At the time that the financial adviser was named to oversee the finances of the Mound Bayou District, section 37-9-105 stated that a “school board acting on the recommendation of a school district financial adviser ... shall not be required to comply with the time limitations prescribed in this section for recommending the reemployment of superintendents, assistant superintendents or principals.” 1997 Miss. Laws ch. 386, § 2. The just-quoted language did not exempt from the time limitations all employees, but only the highest-level ones. The position of assistant principal such as McKnight held was not exempted in this statute, but as we will note later, another statute may have made the omission academic. Effective on July 1, 2001, an amendment to section 37-9-105 stated that the time limitations were inapplicable once a financial adviser was named, to “recommending the reemployment of principals, teachers, administrators or other professional educators.” 2001 Miss. Laws ch. 459, § 4, codified as Miss.Code Ann. § 37-9-105 (Rev.2001). Thus, McKnight’s position was covered by the 2001 amendment.

¶ 11. Several issues arise from these statutes. First, does the statutory language simply allow a school district, if a financial adviser is named prior to the usual deadlines for notifying employees about the possible renewal of their employment, to delay making the decisions? Under such a reading, the appointment of an adviser after the statutory deadline for notifying employees of contract renewal would have no effect on earlier renewals. Secondly, even if the statutes do permit the retraction of contract offers already made if a financial adviser is named after those offers, what is the effect of the deadline exemption statutory language not applying to assistant principals such as McKnight until July 1, 2001? Finally, even if these statutes authorized the district to cancel McKnight’s contract for the next year, is there a constitutional problem to that cancellation?

¶ 12. We will discuss each of these issues.

1. Statutory interpretation: Post-offer withdrawal

¶ 13. School employees are provided by statute with the right to receive notice in a timely manner if they are not to be given a new contract for the subsequent school year. The purpose of the statute was to give certain employees notice and a right to be heard if renewal of their 'employment was not to be offered. Ford v. Holly Springs School Dist., 665 So.2d 840, 843 (Miss.1995); see generally, Holmes S. Adams, et al., School Law § 65.88, in 7 Jackson & MilleR, EnoyClopedia of Mississippi Law (2001) (discusses 2001 revised Act). “Mandatory compliance with the notice provisions” in the statute is the rule. Ford, 665 So.2d at 843. There is no “statutory or contractual authority” to permit the withdrawal of contracts already offered simply because a general “financial predicament” was discovered by the school district after offers of renewal had been made. Byrd v. Greene County School Dist., 633 So.2d 1018, 1025 (Miss.1994).

¶ 14. Unlike the situation in Byrd, applicable to the Mound Bayou action is a specific authorization for a financial adviser to consult with a school district on the need to reduce the number of personnel and to make those decisions without regard to the statutory deadlines for contract renewals. Miss.Code Ann. § 37-9-18. The more difficult issue is whether an offer of a contract, once made, can be withdrawn without penalty because of subsequent review by a financial adviser. The operative statutory language, previously quoted, is the school board may consider a reduction in personnel without compliance with the time limitations that otherwise apply to contract nonrenewal. This language should be read in light of the whole act of which it is a part.

¶ 15. In one of the earliest iterations in Mississippi of the whole act doctrine for statutory interpretation, the High Court of Errors and Appeals reasoned that a “statute must receive such construction as will, if possible, make all its parts harmonize with each other, and render them consistent with its scope and object.” Ellison v. Mobile & O.R. Co., 36 Miss. 572, 585 (1858) (headnote quoted; opinion has comparable language), quoted in Adams v. Yazoo & M.V.R. Co., 75 Miss. 275, 22 So. 824, 826 (1897). The entirety of the enactments on financial advisers for school districts will help us interpret the specific phrase that concerns us.

¶ 16. The statute provides for an outside audit to determine the financial health of a school district. Should significant financial dangers be found, the district is directed “to immediately cease all expenditures until a financial adviser is appointed by the state superintendent.” Miss.Code Ann. § 37-9-18. The adviser is to approve or disapprove all expenditures “and financial obligations of the district”; the adviser may make recommendations on adjustments to the number of district personnel. Id. These are powers granted by the legislature and decisions reached by the appointed adviser premised on the existence of a financial crisis. If the decisions to reduce personnel can be made, but the district remains liable for the salaries of the eliminated personnel, then the statute serves no demonstrable purpose. The statute refers to the deadlines under section 37-9-105 for notifying personnel of contract renewal. By that reference, the statute is with sufficient clarity providing that financially troubled districts must be permitted to review all of their obligations for the next school year and make adjustments that actually result in saving the district money.

¶ 17. What this means is that even though a statute provides for early notice to school employees of contract renewal, that right is subordinate to a school district’s need once placed under the oversight of a financial adviser to address effectively the crisis at hand.

¶ 18. Bridges argues that contracts once entered cannot be rescinded. The district counters that no physical contract was ever produced. There are precedents that once the deadline for notice of contract nonrenewal passes, there is a new contract in effect without regard to whether a formal execution occurs. Noxubee County School Bd. v. Cannon, 485 So.2d 302, 304 (Miss.1986). Regardless of that point, even assuming there was a contract, it was subject to statutes that would apply to the school district should a financial adviser be named. Anyone entering into a contract with a governmental body is chargeable with knowledge of the law governing that agreement. See Martin v. Newell, 198 Miss. 809, 815, 23 So.2d 796, 797 (1945). Consequently, terms may be implied into a school district contract consistent with the rights and responsibilities given to the district by statute if those contracts are controlled by that statute.

¶ 19. The relevant statutory rights and powers that affected school district employment contracts, with a caveat to be discussed next, existed at the time that the district in March 2001 renewed McKnight’s contract. That contract was therefore subject to the right of the district, once placed under the oversight of the state superintendent through a financial adviser, to reconsider previous decisions about the renewal of employment contracts for the following school year.

2. Statutory interpretation: Applicability to assistant principals

¶ 20. Even if a school district may, once placed under the control of a state-named financial adviser, review employment decisions already effectively made for the next school year, we must assure ourselves that the authority applied to McKnight’s employment as an assistant principal in March 2001. On that date, the statute that established the deadlines regarding contract renewals said that once a financial adviser was named, those deadlines need not be followed for “reemployment of superintendents, assistant superintendents or principals.” 1997 Miss. Laws ch. 386, § 2, codified as Miss.Code Ann. § 37-9-105. McKnight’s position as assistant principal was not referenced. Only on July 1, 2001, did an amendment to this statute effectively reach all “professional educators.” 2001 Miss. Laws ch. 459, § 4, codified as Miss.Code Ann. § 37-9-105.

¶ 21. There is another relevant statute, though. In the same 1997 enactment that amended section 37-9-105, was an amendment to the statute that established the procedures for appointment and powers of the financial adviser. That statute more generally stated that once a financial adviser was appointed, the “school board, in considering either a reduction in personnel or a reduction in local supplements, shall not be required to comply with the time limitations prescribed in sections 37-9-15 and 37-9-105_” 1997 Miss. Laws ch. 386, § 1, codified as Miss.Code Ann. § 37-9-18.

¶ 22. We do not find that the two references to the time deadlines, one more limited than the other, are inconsistent. It is natural in the drafting of any writing that variances arise no matter how careful the process. Section 37-9-18, as of July 1, 1997, stated that once a financial adviser was named, decisions regarding reduction in personnel could be made without regard to the time deadlines for contract renewals. Even if the time deadline statute itself, in an effort to restate that authority, did so only in a limited way, nothing in section 37-9-105 cancels the school district’s earlier granted exemption from the entirety of the reach of the time deadlines. Again applying our considerations of examining the entire act, we find that the 1997 set of amendments gave to the school district all the authority it needed to reconsider any employment contract renewal.

¶ 23. We have determined that rights and powers granted to the school district by statute that affect employment contracts are implied into those contracts. When McKnight’s contract was renewed, there was an implied term that renewal of his contract as an assistant principal could be reconsidered if a financial adviser was appointed.

3. Constitutional issue

¶ 24. Though we have found that the school district had the statutory right to withdraw the renewed contract, McKnight urges that such a conclusion is then overridden by his constitutional right to an unimpaired contract. Cited is a precedent in which legislation was passed after a contract was entered with a state governmental body, that altered the acceptable contract terms. Franklin v. Ellis, 130 Miss. 164, 93 So. 738 (1922). Though the statute was valid, the Supreme Court held that “the contracts between the levee board and its employees which were made and entered into before the passage of the act are not affected by the act because of the constitutional prohibition against impairment of obligation of contract.” Id., 93 So. at 740.

¶ 25. Unlike Ellis, our situation involves a contract that became effective between the school district and its employee after the relevant statute had been adopted. Authority for a school district to reconsider contract renewals existed at the time that McKnight’s renewal occurred. Therefore, Ellis has no weight in today’s decision.

¶ 26. We start elsewhere. The state and federal constitutions both provide protections to contract rights. “No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts.... ” U.S. Const, art. I, § 10. “Ex post facto laws, or laws impairing the obligation of contracts, shall not be passed.” Miss. Const. art. 3, § 16 (1890). The Mississippi Supreme Court has found that the contract clauses of the two constitutions are substantially the same in effect. Public Employees’ Retirement System v. Porter, 763 So.2d 845, 849 (Miss.2000).

¶ 27. Since the legislature is not to pass a law impairing contract rights, the perspective from which to view impairment is by standing on the law that existed when the contract was made. Tucker Printing Co. v. Board of Supervisors of Attala County, 171 Miss. 608, 616, 158 So. 336, 338 (1934). At the time McKnight’s renewal became effective, a statute already existed that made that renewal subject to the right of the school district, upon the advice of a financial adviser, to reconsider renewals even after the otherwise applicable deadline. It was as if there were written into the contract a term permitting that reconsideration if those specific conditions arose. There was no impairment of vested contract rights by this pre-existing statute. See Public Employees’ Retirement System v. Porter, 763 So.2d at 849 (it is the legislative elimination of contract rights after the entering of that contract that creates the constitutional infirmity).

¶28. The Mound Bayou Public School District had the authority to alter the offer of renewed employment that had already been made to McKnight even after the deadline that would usually apply to school employee contract renewal. There was neither constitutional nor statutory weakness in the power that the District exercised.

¶ 29. THE JUDGMENT OF THE CHANCERY COURT OF BOLIVAR COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

MeMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: McMILLIN, C. J.,

text:
    Darrin Louis McARTHUR, Appellant, v. INGALLS SHIPBUILDING, INC., Appellee.
    No. 2002-CA-00975-COA.
    Court of Appeals of Mississippi.
    March 30, 2004.
    Rehearing Denied June 1, 2004.
    Certiorari Denied Aug. 5, 2004.

      Dennis L. Horn, Shirley Payne, Jackson, Alton Hall, Bobby J. Delise, attorneys for appellant.
    Richard P. Salloum, Traci M. Castille, Kenneth Raymond Flottman, Gulfport, attorneys for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C. J.,

for the Court.

¶ 1. The Circuit Court of Jackson County granted summary judgment against Darrin Louis McArthur in his negligence claim for injuries arising out of a work-related accident. The claim was asserted against McArthur’s employer under the Jones Act. The circuit court determined that there was no genuine disputed issue of fact regarding McArthur’s status as a seaman within the meaning of the Jones Act. The court concluded that, as a matter of law, McArthur was not a seaman and could not, therefore, pursue a Jones Act claim. Rather, the court found that his sole remedy was under the Longshoremen and Harbor Workers Compensation Act. McArthur has appealed, asserting that his status as a seaman was a disputed issue of fact that could only be decided by a jury after hearing evidence on the issue. For that reason, McArthur contends, the trial court erred in granting summary judgment. Based upon our de novo review of the record, we do not find error in the trial court’s decision and, for that reason, we affirm the grant of summary judgment.

I.

Facts

¶ 2. The case presents a straightforward question that can be framed adequately without a detailed initial recitation of the facts. McArthur worked in the Ingalls Shipyards as a diver engaged primarily in making underwater repairs to the shipyard’s dry docks. To facilitate the carrying out of repair work, McArthur and other divers worked a substantial part of the time from a floating platform that could be moved along the dry dock to the particular work site. The platform was not independently powered. Instead, it was pushed from one work site to another by a skiff powered by an outboard motor.

¶ 3. In the course of making a dive, McArthur was injured in a mishap alleged to have been caused when a fellow workman mistakenly opened a underwater vent in the dry dock, which caused McArthur to be sucked into the opening. In the action that is now before this Court, McArthur sought damages against his employer sounding in negligence under the Jones Act. The proper outcome of this case turns on the issue of whether or not McArthur was performing the duties of a seaman within the meaning of that term in the Jones Act at the time of his injury. For purposes of our analysis, the issue can be further refined to the question of whether McArthur was performing his duties as a member of a crew on a vessel in navigation.

¶ 4. The circuit court determined that the platform from which McArthur was diving was not a vessel in navigation within the meaning of the Jones Act, thus necessarily denying McArthur the status of a seaman authorized to pursue a negligence claim against his employer under that statute. It is from that determination that McArthur has brought this appeal.

II.

General Discussion

¶ 5. When called upon to review a trial court’s decision to grant summary judgment, an appellate court affords no deference to the trial court’s decision, but rather conducts a de novo review of the same information considered by the trial court to determine whether, in the view of the appellate court, the summary judgment was properly entered. Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988)). The court must consider the available evidence in the light most favorable to the non-moving party. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1354 (Miss.1990). Further, the law suggests the need to err on the side of caution and permit a full development of the facts through trial in those instances where the propriety of summary judgment appears a close question. E.g., Roebuck v. McDade, 760 So.2d 12(¶ 9) (Miss.Ct.App.1999). Nevertheless, summary judgment is appropriate in those instances where it can be demonstrated satisfactorily that there is no dispute concerning any material fact pertaining to the case and that the moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c); Williamson ex rel. Williamson v. Keith, 786 So.2d 390(¶ 10) (Miss.2001).

¶ 6. Jones Act cases have their basis in federal legislation appearing in 46 U.S.C. § 688 but may be brought in state courts. King v. Grand Casinos of Miss., 697 So.2d 439(¶ 12) (Miss.1997). However, though the action may be maintained in the state courts, the Mississippi Supreme Court has noted that “state courts are required to apply the substantive federal law” as to such cases. Id. Even more directly, in that same case, the supreme court found that “a Fifth Circuit Court of Appeals decision on point” would be considered to be “controlling with regard to the ... issue of federal law.” Id. at (¶ 4).

¶ 7. With that background in mind, we turn to the specific issue before us as to whether, at the time of his injury, McAr-thur could arguably be classified as a seaman within the meaning of the Jones Act.

III.

Jones Act Seaman Status

¶8. “Thé key to seaman status is employment-related connection to a vessel in navigation.” McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991) (emphasis added). There is substantial authority for the proposition that whether a particular individual is a seaman for purposes of the Jones Act is a mixed question of law and fact that, in only the rarest of cases, ought to be decided by the court rather than the jury sitting as finders of fact. Daniel v. Ergon, Inc., 892 F.2d 403, 407 (5th Cir.1990); Coulter v. Texaco, Inc., 714 F.2d 467, 468 (5th Cir.1983).

¶9. Despite these generally-applicable pronouncements, there has been a substantial amount of litigation over whether certain floating structures serving some purpose in the maritime service fail, as a matter of law, to qualify as a “vessel in navigation” for purposes of the Jones Act. This is a matter of critical concern since the test of who qualifies as a seaman involves not only the nature of the duties being carried out by the individual but necessarily includes the requirement that those duties be undertaken in connection with a vessel in navigation. Thus, it is entirely possible that one of two individuals involved in maritime-related activities and routinely performing essentially the same tasks could qualify as a seaman while the other did not based solely on the question of whether the individual in question was sufficiently associated with a vessel in navigation.

¶ 10. Out of that litigation, the Fifth Circuit has developed what appears to be a bright-line test for certain floating rigs that simply, as a matter of law, fail to qualify as a vessel in navigation. The contention by Ingalls before the trial court, which is now reasserted on appeal, is that the floating barge from which McArthur conducted his diving activities meets in all respects the test for “non-vessel” status under the Fifth Circuit decisions, which are binding on this court. The test as developed by the Fifth Circuit was set out succinctly by that court in Bernard v. Binnings Constr. Co. when it said:

Since Cook [v. Belden Concrete Products, Inc., 472 F.2d 999 (5th Cir.1973)] we have, despite our reluctance to take Jones Act claims from the trier of fact, affirmed findings that, as a matter of law, other floating work platforms are not vessels. A review of these decisions indicates three factors common to them: (1) the structures involved were constructed and used primarily as work platforms; (2) they were moored or otherwise secured at the time of the accident; and (3) although they were capable of movement and were sometime moved across navigable waters in the course of normal operations, any transportation function they performed was merely incidental to their primary purpose of serving as work platforms.

Bernard v. Binnings Constr. Co., 741 F.2d 824, 831 (5th Cir.1984).

¶ 11. The floating device in the case before us, based on the undisputed evidence appearing in the record in regard to the summary judgment motion, was a floating platform that had no independent source of power. It did not possess any of the typical physical attributes normally associated with a vessel engaged in navigation. It had no running lights save for a set of portable battery-operated running lights that were stored on the platform. It had no crew quarters or galley or other accommodations for a crew other than a cold water shower. Its only recurring transportation use was that some of the divers’ equipment was stored on the platform and would, thus, be moved from one work location to another when the platform was pushed to a new work site by a motor-powered skiff. There was no indication that the platform served any purpose associated with maritime activities other than as a platform for divers' to work at their tasks related to performing repair work on the dry dock. The platform remained moored essentially all of the time except when it was being moved to a different location along the dock. The platform was moored and not underway at the time of the accident that injured McAr-thur.

¶ 12. In that circumstance, this Court concludes that, as a matter of law under existing binding precedent, there is no jus-ticiable issue in dispute to be resolved by the trier of fact as to whether this platform could arguably be found to be a vessel in navigation. For that reason, we do not find that the trial court erred in granting summary judgment against Mc-Arthur.

IV.

Alternative Argument

¶ 13. McArthur advances the alternative argument that, by virtue of the fact that he was working as a diver at the time of his injury, he was a seaman within the meaning of the Jones Act without regard to whether he had the necessary nexus at the time to a vessel in navigation. McAr-thur cites Wallace v. Oceaneering International in support of this contention, which held that “a diver’s work necessarily involves exposure to numerous marine perils, and is inherently maritime.... ” Wallace v. Oceaneering Int’l, 727 F.2d 427, 436 (5th Cir.1984).

¶ 14. We find this alternate contention to be without merit. The Wallace case goes on to state that “a commercial diver ... has the legal protections of a seaman when a substantial part of his duties are performed on vessels.” Id. (emphasis added). It is not the nature of McArthur’s duties as a diver that deprives him of seaman status. It is our determination that, as a matter of binding precedent set down by the Fifth Circuit on an issue of substantive federal law, McArthur did not have the necessary connection to a vessel in navigation that is an essential part of the definition of a Jones Act seaman.

¶ 15. For the foregoing reasons, we conclude that the trial court did not err in entering summary judgment in favor of Ingalls and, on that basis, we affirm.

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

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: CHANDLER, J.,

text:
    Christopher Brian REESE, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-KA-00966-COA.
    Court of Appeals of Mississippi.
    April 6, 2004.
    Rehearing Denied Aug. 3, 2004.

      Ross Parker Simons, attorney for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before KING, P.J., LEE and CHANDLER, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. Christopher Reese was convicted in the Circuit Court of Jackson County for sexual battery of a child under the age of fourteen years. Reese was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Reese appeals and cites the following errors:

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING REESE’S MOTION TO SUPPRESS THE PHOTOGRAPHIC LINEUP.
II. WHETHER THE TRIAL COURT ERRED IN ADMITTING TESTIMONY WHICH VIOLATED RULE 9.04 OF THE UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE.
III. WHETHER THE TRIAL JUDGE ERRED IN GRANTING A PEREMPTORY INSTRUCTION.
IV. WHETHER THE TRIAL COURT ERRED IN DENYING REESE’S MOTION FOR A DIRECTED VERDICT AND JNOV.
V. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND THE COURT ERRED IN DENYING REESE’S MOTION FOR A NEW TRIAL.
VI. WHETHER THE TRIAL COURT FAILED TO ADMINISTER THE OATH TO THE PETIT JURY WHICH TRIED REESE.

¶ 2. Finding no merit in Reese’s assertions, we affirm the ruling of the trial court.

FACTS

¶ 3. A.M. met Reese in the neighborhood where her father lived and conversations ensued between the two. Reese obtained A.M.’s telephone number from a friend and began to call A.M., who was eleven years of age at the time. On or about April 17, 2000, Reese called A.M. at her grandmother’s home and invited A.M. to come over to his house, claiming that he had something to tell her. When A.M. arrived at Reese’s home, they sat on the couch in the living room talking for awhile before Reese told A.M. to go to his bedroom. In the bedroom, Reese began kissing A.M. and removing her clothes. Reese then proceeded to have sexual intercourse with A.M.

¶ 4. Approximately a month later, A.M. discussed the sexual encounter with a friend at school. A teacher overheard the conversation and reported the incident to the principal who immediately notified A.M.’s parents. A parent consultation was held at school where A.M. informed her parents that she had engaged in sexual intercourse with a person nicknamed “T.”

¶ 5. A.M.’s father, John, became very angry and immediately left the meeting to search the neighborhood for the offender. After the parent consultation ended, A.M.’s mother, Jane, ordered A.M. to direct her to the home of the sex offender. John arrived at Reese’s house shortly before Jane and A.M. and confronted Reese. Reese initially .denied that he had sexual intercourse with A.M. However, after A.M. arrived and identified Reese as the culprit, Reese admitted they had sex but claimed that he did not know A.M. was only eleven years old.

¶ 6. On May 2, 2002, Reese was tried and convicted in the Circuit Court of Jackson County for sexual battery of a minor under the age of fourteen years.

I. WHETHER THE TRIAL COURT ERRED BY OVERRULING REESE’S MOTION TO SUPPRESS THE PHOTOGRAPHIC LINEUP.

¶ 7. It is well-settled law that the standard of review for evaluating the admissibility, of evidence at suppression hearings in pretrial identification cases is whether substantial credible evidence supports the trial court’s findings that, considering the totality of the circumstances, the in-court identification testimony was not impermis-sibly tainted. Ellis v. State, 667 So.2d 599, 605 (Miss.1995). Reese argues the pretrial photo identification of him by A.M. was suggestive to the point of creating an unreasonable risk of misidentification. Reese’s photograph was placed in the upper left hand corner of the photo array. Reese alleges he was prejudiced by the placement of his picture in this position because all viewers begin to read or view a document from this position. The photo of Reese was the only one in the array which showed a person with no hairline.

¶ 8. Reese filed a motion to suppress the photo identification at a pretrial hearing held on May 1, 2002. The trial court denied the motion.

¶ 9. At trial, A.M. was allowed to make an in-court identification of Reese. Detective Lawson also testified that A.M. identified Reese as her assailant from a photographic line-up.

¶ 10. To determine whether the trial court’s findings were supported by substantial evidence, a discussion of the law governing pretrial and post trial identification is required. A photographic lineup is impermissibly suggestive when the accused is “conspicuously singled out in some manner from others.” York v. State, 413 So.2d 1372, 1383 (Miss.1982). In Thompson v. State, 483 So.2d 690, 692 (Miss.1986), the court stated:

An impermissibly suggestive pretrial identification does not preclude in-court identification by an eye witness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

¶ 11. Reese’s argument that the trial judge erred because he failed to balance the suggestiveness of A.M.’s identification against the finding of whether there was a substantial likelihood of misidentification is without merit. The Mississippi Supreme Court in Jones v. State, 504 So.2d 1196, 1198 (Miss.1987), addressed the issue of whether minor differences in a photograph array would create an impermissible suggestion. In Jones, the defendant was the only person in an array of seven photographs that was wearing a cap. Id. at 1199. His photograph was also slightly larger than the other six photographs. Id. The supreme court held these minor differences did not constitute an “impermissible suggestion.” Id.

¶ 12. In Brooks v. State, 748 So.2d 736, 742(¶ 27) (Miss.1999), the defendant’s picture in the photographic line up was the only picture in the lineup of a person with long hair. The court held that “although there might be a slight suggestion of im-permissibility in the use of the photograph of the defendant in which his hair is longer than the others depicted, nonetheless, nothing about the photographic array nor the procedure used, gives rise to a substantial likelihood of misidentification.” Id.

¶ 13. A.M.’s in-eourt identification of Reese is sufficient to overcome any prejudice that may have been caused by the photo lineup. The Mississippi Supreme Court held the Biggers factors, established in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), are to be evaluated in order “to determine whether the in-court identification is ‘sufficiently reliable to overcome the taint of the prior improperly attained identification.’ ” Ellis v. State, 667 So.2d 599, 605 (Miss.1995) (quoting Gayten v. State, 595 So.2d 409, 418 (Miss.1992)). The Biggers factors are:

(1) the opportunity of the witness to view the accused at the time of the crime;
(2) the degree of attention exhibited by the witness;
(3) the accuracy of the witness’ prior description of the criminal;
(4) the level of certainty exhibited by the witness at the confrontation;
(5) the length of time between the crime and the confrontation.

Ellis, 667 So.2d at 605.

¶ 14. These factors apply to the present case as follows. A.M. had ample opportunity to view Reese at the time of the crime. A.M. was acquainted with Reese and talked to him on several occasions. Reese lived in A.M.’s neighborhood and called A.M. on the telephone numerous times. During the criminal act, A.M. observed Reese’s facial features and was confident that Reese was the person with whom she had engaged in sexual intercourse. She identified him in court as that person.

¶ 15. A.M.’s level of certainty that Reese was the person with whom she had engaged in sexual intercourse was unwavering at the pretrial and at trial. Detective Lawson testified that A.M. identified the man in the first photograph, Reese, as the person with whom she had engaged in sexual intercourse. A.M. directed her parents to Reese’s home where the sexual act occurred and gave an accurate description of the interior of Reese’s bedroom.

¶ 16. Although A.M. could not identify Reese by his real name, she did state that she knew him by the nicknames of “T” and “Nokia”. Reese has a Nokia tattoo on his arm and is known by many in the neighborhood as “Nokia”. Although a month had transpired since Reese and A.M. had engaged in sexual intercourse, considering the intimate nature of the encounter between Reese and A.M., a month does not diminish the accuracy of A.M.’s identification of Reese.

¶ 17. Based on the Biggers factors, the in-court identification of Reese is sufficiently reliable to overcome any possible taint of the prior photo identification. Reese’s argument is without merit.

II. WHETHER THE TRIAL COURT ERRED IN ADMITTING TESTIMONY THAT VIOLATED RULE 9.04 OF THE UNIFORM RULES OF CIRCUIT AND COUNTY COURT PRACTICE.

¶ 18. Evidentiary rulings are within the broad discretion of the trial court and will not be reversed absent an abuse of discretion. Coleman v. State, 697 So.2d 777, 784 (Miss.1997). Rule 9.04 of the Uniform Circuit and County Court Rules sets forth the appropriate procedure and remedies for the trial court to consider in resolving discovery violations. URCCC 9.07.

¶ 19. In the case sub judice, the State attempted to introduce testimony from A.M. about an apology Reese purportedly made to A.M.’s father. Reese’s counsel objected to the testimony on the basis that it was a discovery violation. This apology was contained in a medical report from Dr. Nunez, which included statements A.M. and her family attributed to Reese. This medical report was provided to the defense during discovery. The statement in Dr. Nunez’s notes stated, “I didn’t know your daughter was eleven years old. It’s not like that. Nothing to do with it.” The trial court found the medical report properly placed the defendant on notice and admitted the evidence.

¶ 20. On appeal, Reese argues that Dr. Nunez’s medical report does not contain an explicit apology by Reese to A.M.’s father. The State admits there was no explicit apology by Reese in Dr. Nunez’s medical report but makes the following argument: (1) discovery documents put Reese’s counsel on notice that Reese and A.M.’s parents had a confrontation during which statements were made, (2) Reese knew A.M. and her parents would testify, and (3) counsel knew from Dr. Nunez’s report the general statements to which A.M. and her parents would testify regarding the confrontation.

¶ 21. The purpose of discovery is to avoid ambush or unfair surprise to either party at trial. Frierson v. State, 606 So.2d 604, 607 (Miss.1992); Robinson v. State, 508 So.2d 1067, 1070 (Miss.1987). The substance of the conversations between Reese and A.M.’s parents was contained in Dr. Nunez’s medical report. Reese presents nothing in this appeal which indicates the defense would have differed significantly had the specific statement of apology been provided to him in discovery. A violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice. Wooten v. State, 811 So.2d 355, 366(¶ 3) (Miss.Ct.App.2001). Any violation of the rule in this case is harmless.

III. WHETHER THE TRIAL JUDGE ERRED IN GRANTING A PEREMPTORY JURY INSTRUCTION.

¶ 22. Reese argues the trial judge erred when he granted a peremptory jury instruction on the issue of A.M.’s age because the State had not proven beyond a reasonable doubt that A.M. was under the age of fourteen years. The jury instruction read as follows: “The court instructs the jury that the victim’s resistance, or lack of resistance, is not relevant to your consideration, because a female child under the age of fourteen years cannot legally consent to the act of sexual intercourse.” Reese’s counsel did not object to the granting of this jury instruction, which waived his right to raise this issue on appeal. Walker v. State, 671 So.2d 581, 597 (Miss.1995). Aside from the procedural bar, A.M. testified that she was eleven years old when the sexual encounter occurred which is sufficient to establish the age of the minor. See Washington v. State, 645 So.2d 915, 920 (Miss.1994). Accordingly, Reese’s argument is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING REESE’S MOTION FOR A DIRECTED VERDICT AND JNOV.

¶ 23. Reese claims the trial court erred in denying his motion for directed verdict because the State failed to prove that Reese was more than twenty-four months older than A.M. Motions for directed verdict and JNOV involve consideration of the evidence before the court at the time the motions are made. McClain v. State, 625 So.2d 774, 778 (Miss.1993). The same standard is used to review overruled motions for both directed verdict and JNOV. These motions pertain to the legal sufficiency of the evidence as opposed to the weight of the evidence. See Wetz v. State, 503 So.2d 803, 808, (Miss.1987).

¶ 24. The standard for assessing the legal sufficiency of the evidence requires that the judge accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn while disregarding evidence favorable to the defendant. McClain, 625 So.2d at 778. This Court may reverse only if one or more elements of the offense have not been proven, and the evidence is such that reasonable fairminded jurors could only find the accused not guilty. Id.

¶ 25. Mississippi Code Annotated Section 97-3-95 (Supp.2003) provides, “(1)' A person is guilty of sexual battery if he or she engages in sexual penetration with: ... (d) A child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child.”

¶ 26. Reese argues the State failed to prove that he was twenty-four months older than A.M. A.M. testified that Reese told her he was seventeen years old before they had sexual intercourse. This statement was admitted into evidence as non-hearsay pursuant to Mississippi Rule of Evidence 801(d)(2). M.R.E 801. Reese did not object to the testimony of A.M. concerning his age.

¶ 27. Reese’s motion for a directed verdict was denied after the State rested its case. Reese proceeded to offer evidence in his defense, thereby waiving his objection. If a defendant puts on evidence in his own defense after the denial of his motion for directed verdict, he waives his challenge to the sufficiency of the State’s evidence up to that point. Stringer v. State, 557 So.2d 796, 797 (Miss.1990).

¶ 28. Based on the record, there was substantial evidence proving all elements of the crime. The circuit court correctly denied the motion for a JNOV. Reese’s argument is without merit.

V. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE, AND THE COURT ERRED IN DENYING REESE’S MOTION FOR A NEW TRIAL.

¶ 29. The standard of review in determining whether a jury verdict is against the overwhelming weight of the evidence is well settled. “[Tjhis Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998). On review, the State is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss.1992). “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.” Dudley, 719 So.2d at 182. “This Court does not have the task of reweighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible.” Langston v. State, 791 So.2d 273, 280 (¶ 14) (Miss.Ct.App.2001).

¶ 30. A motion for a new trial asks the court to hold that the verdict was contrary to the overwhelming weight of the evidence. Crowley v. State, 791 So.2d 249, 253(¶ 15) (Miss.Ct.App.2000), citing Lane v. State, 562 So.2d 1235, 1237 (Miss.1990). When a motion for a new trial is made, the court must accept as true all evidence which favors the verdict. Youngblood v. State, 759 So.2d 479, 483(¶ 17) (Miss.Ct.App.2000), citing Veal v. State, 585 So.2d 693, 695 (Miss.1991). The grant or denial of a motion for a new trial rests within the sound discretion of the court. Conners v. State, 822 So.2d 290, 293(¶ 6) (Miss.2001). That discretion should only be used to avoid an unconscionable injustice. Id. Unless the reviewing court upon an examination of that evidence finds it so lacking that to allow the verdict to stand would sanction an unconscionable justice, the motion for a new trial should be denied. McClain v. State, 625 So.2d 774, 778 (Miss.1993).

¶ 31. Reese lists several factors that he claims support his argument that the evidence presented in the record is insufficient to support a conviction. Accepting as true all evidence favorable to the State, this Court is compelled to conclude that the evidence was of such weight to support the jury’s findings. We do not find that the evidence in favor of Reese was overwhelmingly contrary to the ver-diet. This assignment of error is without merit.

¶ 32. A motion for a new trial is in the circuit court’s discretion, and the standard is whether the evidence is so slight that it would be unjust to allow the conviction to stand. See Wetz, 503 So.2d at 812. The circuit court viewed the witnesses, and was better situated to judge credibility than an appellate court viewing the record. Given these facts, it cannot be said that the circuit court abused its discretion in denying the motion for a new trial.

VI. WHETHER THE TRIAL COURT FAILED TO ADMINISTER THE OATH TO THE PETIT JURY WHICH TRIED REESE.

¶ 33. Reese alleges the jury was not sworn as required by Mississippi Code Annotated 13-5-71 (Supp.2003), regarding a regular petit juror oath, or Mississippi Code Annotated 13-5-73 (Supp.2003), relating to jurors in capital cases. He claims the judge failed to provide the jurors with proper direction as to their solemn duties as jurors.

¶ 34. During voir dire of the jury, the judge undeniably tells the jury that, “All of you have been sworn and your [sic] qualified to serve.” Reese’s counsel also makes reference to the jury being properly sworn when she told the jury during voir due that “there’s going to be people who take an oath, just like ya’ll did.” This assignment of error is without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY OF CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

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

      . The actual names of the victim and the parents have not been used in this opinion to protect the privacy of the minor.


author: MYERS, J.,

text:
    Charles ALEXANDER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-CP-01992-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Charles Alexander (pro se).
    Office of the Attorney General, by Scott Stuart, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   MYERS, J.,

for the Court.

¶ 1. Charles Alexander, pro se, appeals from the Circuit Court of Yazoo County’s dismissal of his motion for post-conviction collateral relief as being time barred. In his appellate brief, Alexander does not specifically indicate an issue that he raises on appeal. However, his argument focuses on whether his claim was time barred and whether he is serving an illegal sentence. Our opinion will address these issues. Finding no error by the trial court, we affirm the dismissal of Alexander’s motion for post-conviction relief as time barred.

STATEMENT OF FACTS

¶ 2. Charles Alexander was arrested and charged with seven counts of forgery by a bill of information. On November 4, 1998, Alexander entered his guilty plea to seven counts of forgery. The trial court sentenced him to serve ten years with the sentence suspended if Alexander successfully completed a drug treatment program. On October 15, 2002, Alexander filed a motion for post-conviction collateral relief with the Circuit Court of Yazoo County, pursuant to Mississippi Code Annotated Section 99-39-1 (Rev.2000). In his motion, Alexander argued that he should be granted relief because he was serving an illegal sentence. Alexander claimed that because he was previously convicted of a felony in Warren County, the Yazoo County Circuit Court could not order him to serve a suspended sentence pursuant to Mississippi Code Annotated Section 47-7-33 (Rev.2000).

¶ 3. The trial court dismissed his motion for post-conviction relief as time barred and also ruled that Alexander did not suffer any prejudice or undue burden due to the sentence. Alexander appealed the dismissal of his motion to the supreme court. The supreme court issued an order on April 30, 2003, stating that Alexander’s motion was a timely notice of appeal and should proceed as such. Alexander filed a second motion for post-conviction relief with the circuit court on August 13, 2003. We now review the trial court’s dismissal of Alexander’s motion for post-conviction relief.

STANDARD OF REVIEW

¶4. “When reviewing a lower court’s decision to deny a petition for post-conviction relief, this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised, the applicable standard of review is de novo.” Brister v. State, 858 So.2d 181, 182(¶ 4) (Miss.Ct.App.2003) (citing Graves v. State, 822 So.2d 1089, 1090(¶4) (Miss.Ct.App.2002)).

LEGAL ANALYSIS

¶5. Alexander does not provide this court with any specific issues to consider; however, since he is appealing pro se we will entertain the argument that he makes in his brief. Alexander’s argument focuses on two issues: (1) did the trial court err by dismissing his motion as time barred and (2) is he serving an illegal sentence? We will consider the issues in that order.

I. DID THE TRIAL COURT ERR BY DISMISSING HIS MOTION AS TIME BARRED?

¶ 6. According to the applicable statute, Alexander had three years in which to file his motion for post-conviction relief following his guilty plea to forgery. Miss.Code Ann.. § 99-39-5(2) (Rev.2000). The record indicates that Alexander pled guilty to' seven counts of forgery on November 4, 1998. Therefore, in order to meet the time requirement set by statute, Alexander had to file his motion by November 4, 2001. Because Alexander waited until October 15, 2002, to file his motion for relief, the trial court properly dismissed his motion as time barred.

¶ 7. Alexander argues in his brief that our supreme court issued an order stating that his motion for post-conviction relief was timely filed. The order states the following: “Alexander seeks to appeal the trial court’s dismissal of his petition for post-conviction relief. After due consideration, the panel finds that this motion is in the form of a timely notice of appeal and should proceed as such.” Our review of the order reveals that the supreme court was not stating that Alexander’s motion for relief was timely, but that his appeal from the trial court’s order of dismissal was timely filed. The supreme court never ruled on the timeliness of Alexander’s motion for relief. As such, this Court finds that Alexander’s motion for post-conviction relief filed on October 15, 2002, was time barred.

' II. IS ALEXANDER SERVING AN ILLEGAL SENTENCE?

¶ 8. Alexander argues that he should be allowed to revoke his guilty plea because his ten-year suspended sentence is illegal. Alexander’s claim is procedurally barred; however, we will briefly address the merits of his claim. Alexander asserts that his sentence is illegal because the trial court did not have the authority to order him to serve a suspended sentence. Mississippi Code Annotated Section 47-7-33(1) (Rev.2000) states the following in pertinent part:

When it appears to the satisfaction of any circuit court or county court in the State of Mississippi, having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime or in vacation, shall have the power, after conviction or a plea of guilty, except in a case where a death sentence or life imprisonment is the maximum penalty which may be imposed or where the defendant has been convicted of a felony on a previous occasion in any court or courts of the United States and of any state or territories thereof, to suspend the imposition or execution of sentence and place the defendant on probation as herein provided, except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.

Alexander argues that a prior conviction in Warren County, Mississippi, disqualifies him for a suspended sentence.

¶ 9. The right to be free from an illegal sentence is a fundamental right and this Court has held that “errors which affect fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their considerations.” Moss v. State, 752 So.2d 427, 430 (¶ 13) (Miss.Ct.App.1999) (quoting Luckett v. State, 582 So.2d 428, 430 (Miss.1991)). A similar argument to Alexander’s was addressed by this Court in McGleachie v. State, 800 So.2d 561 (Miss.Ct.App.2001). In McGleachie, the appellant asserted that according to § 47-7-33, he should not have been sentenced to parole because of a pri- or felony conviction. Id. at 562 (¶ 3). McGleachie, like Alexander, benefitted from the leniency of the trial court and then argued that the error was a violation of his fundamental rights. Id. at 563 (¶ 4).

¶ 10. In McGleachie we held:

If the error in sentencing McGleachie for the June 26, 1987 conviction is, in fact, an error at all, it is a harmless error rather than a fundamental one. It is also an error, we might add, that benefitted McGleachie. The law that states that there is a fundamental right to be free from an illegal sentence is interpreted to apply to sentences which cause the defendant to endure an undue burden rather than the luxury of a lesser sentence. Therefore, the motion for post-conviction relief is time barred.

McGleachie, 800 So.2d at 563(¶ 4). We hold that Alexander benefitted from the leniency of the trial court’s ordering him to serve a ten-year suspended sentence. As the State correctly indicates, at the time of Alexander’s crime, the maximum penalty for forgery was fifteen years. See Miss. Code Ann. § 97-21-33 (Rev.2000). Because Alexander was not subjected to an undue burden or prejudice but to a significantly lesser sentence, the error by the trial court was harmless. Alexander’s motion for post-conviction relief is time barred.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

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


text:
    Alfred BOSARGE, III, Appellant, v. Cheryl BOSARGE, Appellee.
    No. 2003-CA-00604-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      David Jeffrey White, Gulfport, attorney for appellant.
    Albert Lionel Necaise, Gulfport, attorney for appellee.
    Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.
   CHANDLER, J.,

for the Court.

¶ 1. On June 17, 2002, Alfred Bosarge, III filed a petition to modify child custody and support, based on both a claim that the eldest of three children had moved from the household of his former wife, Cheryl, to his household, as well as a claim that his earnings had decreased and he was unable to continue paying the support that was required by a previous settlement agreement, which was incorporated into their 1988 divorce judgment. Cheryl counterclaimed alleging Alfred was in contempt for unpaid child support. After a one day trial on December 19, 2002, the Perry County Chancery Court denied Alfred’s petition to modify the child support provisions and found him to be in contempt of court. He appeals asserting the following issues which we quote verbatim.

1. The trial court erred in finding the appellant in contempt for failure to pay child support and not finding that the appellant had reasonable justification for noncompliance and made a reasonable effort to comply or seek relief from the court.
2. The trial court erred in awarding the appellee attorney’s fees.
3. The trial court erred in not allowing the appellant a credit towards child support arrearage for the time the minor child resided with him.
4. The trial court erred in modifying child custody granting appellant custody of the parties’ oldest minor child and not awarding the appellant child support.

Finding no error, we affirm.

FACTS

¶ 2. In August of 1998, the chancery court entered an order for withholding, requiring Alfred’s employer to withhold $500 per month from him, $400 for child support and $50 toward a child support arrearage. The employer was to pay that amount to the chancery court clerk. In 2000, without any notice to the chancery court, Cheryl approached the Department of Human Services (DHS) about ongoing deficiencies. On June 2, 2000, DHS sent to the chancery court clerk a notice of redirection of child support payments directing that the clerk send the payments received to DHS.

¶ 3. Trial on the petition to modify and counter-claim for finding of contempt was held on December 19, 2002. At the trial, an accounting from DHS was introduced into evidence. It appears that sometime between August of 1998 and June of 2000, which is when DHS began collecting the child support payments, Alfred became current in his payments, as the DHS accounting showed no initial arrearage. However, Alfred admitted that in November of 2001 a check was returned for insufficient funds. Alfred then directly gave Cheryl a second check, which was honored by his bank, but in December of 2001 he failed to send a check because he thought the first November of 2001 check would be resubmitted. The record was not clear as to whether Alfred made a January of 2002 payment.

¶ 4. On January 20, 2002, Alfred fell from a deer stand and seriously injured his back. He admittedly paid no more support until May of 2002. Cheryl testified that the child support arrearage was $3,204 plus the $460 due in December of 2002. The DHS accounting showed an arrearage of $3,204. Alfred agreed that he had not paid all the child support required, but he was unable to give a figure as to the amount.

ANALYSIS

1. FINDING OF CONTEMPT

¶ 5. A finding of contempt for failure to pay child support is subject to the deferential manifest error standard of review. Milam v. Milam, 509 So.2d 864, 866 (Miss.1987); Witters v. Witters, 864 So.2d 999 (¶ 18) (Miss.Ct.App.2004). Alfred contends the chancery court erred in finding him in contempt because he was unable to pay the child support after his injury. However, this contention does not accurately reflect the chancery court’s findings. The chancery court found that Alfred had not promptly sought relief after his injury:

He [Alfred] would have this Court believe that he acted with reasonable dispatch in bringing that [his injuries from the fall] to the Court’s attention, but I don’t find an injury that occurred in January and a modification relief asked in July — of mid July to be reasonably done and done with dispatch and that old dog won’t hunt.

Moreover, at the time the chancery court made its ruling, Alfred testified that he had recovered from his injury and was earning approximately $600 per week, yet he had made no effort to pay any amount towards the arrearage. Credible evidence supported the chancery court’s finding that Alfred was in contempt of court for failure to pay the child support recited in the settlement agreement and incorporated into the divorce decree. Accordingly, we find this issue is without merit.

2. ATTORNEY’S FEES

¶ 6. The standard of review for a chancery court’s award of attorney’s fees in an action for enforcement of child support provisions is abuse of discretion. Ladner v. Logan, 857 So.2d 764 (¶ 31) (Miss.2003); Langdon v. Langdon, 854 So.2d 485 (¶ 41) (Miss.Ct.App.2003). In this case, Alfred confesses in his brief that his basis for this error rests in his assignment that the finding of contempt was error. He does not contend that the award of $1,000 as a contribution towards the total of Cheryl’s fees was an abuse of discretion. Having found the chancery court did not err in finding Alfred to be in contempt, there can be no basis for finding the chancery court abused its discretion in ordering Alfred to pay a portion of Cheryl’s attorney’s fees. Accordingly, we find this issue is without merit.

3. CREDIT FOR MINOR CHILD

¶ 7. Decisions regarding modification of child support provisions of a divorce decree are left to a chancery court’s discretion, and will only be disturbed if in manifest error. Gillespie v. Gillespie, 594 So.2d 620, 622 (Miss.1992); Hopson v. Hopson, 851 So.2d 397 (¶ 10) (Miss Ct.App.2003). In this case, Alfred’s contention is two-fold. First, he contends that the chancery court erred in not allowing him a credit towards the arrearage for support he directly provided the eldest daughter who came to reside with him in January of 2001. Additionally, Alfred contends that the chancery court erred in not reducing the amount of child support he paid to Cheryl, because the eldest daughter leaving her household constituted a material change in circumstances.

¶ 8. Child support vests when it becomes due. Setser v. Piazza, 644 So.2d 1211, 1215 (Miss.1994). Nevertheless, a chancery court does have discretion to allow a credit against an arrearage if one of several children becomes emancipated pri- or to an action for modification of child support being brought. Department of Human Services, State of Miss. v. Fillingane, 761 So.2d 869(¶ 13) (Miss.2000). However, “the emancipation of one child does not automatically reduce the supporting parent’s periodic payment.” Varner v. Varner, 588 So.2d 428, 433 (Miss.1991). In this case, the chancery court cited several reasons for its decision against modifying the settlement agreement’s $400 per month child support provision. The chancery court found that Alfred had not acted with dispatch after his injury to seek a modification, and his unilateral decision to reduce his payments .without court approval resulted in Alfred coming to equity with unclean hands. The chancery court explicitly found that reducing the monthly amount while Alfred was in arrearage would in effect reward him because Alfred would satisfy the arrearage without increasing his monthly payments. Additionally, the chancery court found that the settlement agreement’s provision of $400 per month support was within guidelines of Mississippi Code Annotated Section 43-19-101 (Rev.2000). Pursuant to this statute, the $400 per month figure is presumed to be reasonable, and no' evidence overcame that presumption. Nothing in the record indicates that the chancery court committed manifest error in declining to modify the child support provisions. This issue is without merit.

IV. CUSTODY OF THE ELDEST CHILD

¶ 9. This assignment of error is a corollary to the previous assignment of error. Alfred contends that the chancery court erred in altering the physical custody of the eldest daughter, who was seventeen years old, without altering the child support provisions of the settlement agreement by ordering Cheryl to pay support for this child. Viewing the record, it appears that the incomes of Alfred and Cheryl were roughly equal. However, $400 a month was less than Cheryl expended on the two younger children residing with her. Alfred had remarried and had a child of that marriage. It was undisputed that Alfred’s injury and the addition of the eldest child to his household altered his economic situation. Nevertheless, the Court is ultimately left with the fact that Alfred came to equity without having met his obligations under the settlement agreement, and without making a timely appeal to the chancery court to modify his obligations in light of his injury. The determination of this issue must be left to the chancery court’s discretion. See, e.g., Gillespie, 594 So.2d at 622. While there is obvious merit to Alfred’s argument, the record also factually supports the chancery court’s decision. Given our standard of review, we find the record cannot support a finding of manifest error. This issue is without merit.

¶10. THE JUDGMENT OF THE CHANCERY COURT OF PERRY COUNTY IS AFFIRMED. THE APPELLANT IS ASSESSED ALL COSTS OF THIS APPEAL.

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


author: LEE, J.,

text:
    Arnie Dekeith BATES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2003-CP-01588-COA.
    Court of Appeals of Mississippi.
    July 27, 2004.

      Arnie Bates, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before KING, C.J., LEE and GRIFFIS, JJ.
   LEE, J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Arnie DeKeith Bates was charged with sexual battery and kidnaping in the Circuit Court of Pike County. He pled guilty to the sexual battery charge, and the kidnaping charge was dismissed by order nolle prosequi Bates was sentenced to thirty years, with twenty to be served and ten on post-release supervision, plus fines, fees assessments and court costs. With the assistance of counsel, Bates timely filed a post-conviction motion to set aside his guilty plea. His motion raised one issue, namely that Bates pled guilty upon the advice of counsel that the issue of consent would not be an issue for the jury to consider. The trial court denied the motion for post-conviction relief. It is from this denial that Bates now appeals, raising six issues for the first time on appeal. Finding that the trial court correctly denied Bates’ motion for post-conviction relief, this Court affirms.

DISCUSSION

I. DID THE TRIAD COURT ERR IN DENYING BATES’ MOTION FOR POST-CONVICTION RELIEF?

¶2. When a trial court has denied a petition for post-conviction relief, this Court will examine whether the denial is clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999). The trial judge’s obligation is to review the “original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack,” in order to resolve the merits of the allegations. Miss.Code Ann. § 99-39-11(1) (Rev.2000).

¶ 3. In his motion to set aside guilty plea, Bates argues that he pled guilty to the charge of sexual battery due to advice of his trial counsel that the issue of consent would not be an issue for the jury to consider. Construing this argument as an ineffective assistance of counsel claim, we turn to the familiar two-part test presented in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and applied to guilty pleas in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Under this standard, the claimant must show (1) that counsel’s performance was deficient and (2) that the deficient performance was prejudicial to the defendant in the sense that it undermined confidence in the outcome. Wilson v. State, 577 So.2d 394, 396 (Miss.1991). Regarding this second prong, Bates must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Where a defendant enters a plea on advice of counsel, the attorney’s performance is deemed “deficient” for purposes of the Strickland standard if it falls below “the range of competence demanded of attorneys in criminal cases.” Hill, 474 U.S. at 56, 106 S.Ct. 366, quoted in Wilson, 577 So.2d at 396. A defendant who pleads guilty to a crime is “prejudiced” by his counsel’s erroneous advice if “he would have insisted on going to trial if he had been correctly informed.” Wilson, 577 So.2d at 396.

¶ 4. Bates’ counsel advised him that consent was- not an issue for the jury to consider, and in his petition for post-conviction relief he argues that, without that advice, he would not have pled guilty. The trial court denied the motion to set aside the guilty plea based upon Mississippi Code Annotated Section 97-3-95 1(c). Under this section, a person is guilty of sexual battery if he or she engages in sexual penetration with “[a] child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child.” Miss.Code Ann. § 97-3-95(l)(c) (Rev.2000).

¶ 5. The victim of the alleged sexual battery was a fourteen-year-old child. At the time of the offense, Bates was thirty-three years old. Under the plain language of the statute, the State would not have to address the issue of consent; the State would only have to show that the victim was between the ages of fourteen and sixteen, that Bates was more than thirty-six months older than the victim, and that Bates engaged in sexual penetration with the victim. Id. Bates’ trial counsel did not provide erroneous advice in advising Bates that consent was not an issue for the jury to address. Thus, the trial court did not err by denying Bates’ motion for post-conviction relief.

II. ISSUES RAISED ON APPEAL

¶ 6. Bates raised six issues in appealing his petition for post-conviction relief, all of which are reproduced verbatim below.

a. WAS ATTORNEY PAUL LUCK-ETT INCOMPETENT TO RULES OF PROFESSIONAL CONDUCT (1.1)
b. DID ATTORNEY PAUL LUCK-ETT LACK SCOPE OF REPRESENTATION PURSUANT TO THE RULE OF PROFESSIONAL CONDUCT RULE (1.2) IN THE WAY THAT PAUL LUCKETT MISHANDLES YOUR DEFENDANT TRIAL.
c. WAS PAUL LUCKETT NOT DILIGENT PURSUANT TO RULES OF PROFESSIONAL CONDUCT, SPECIFICALLY, CLIENT-ATTORNEY RELATIONSHIP RULE (1.3), IN THE WAY PAUL LUCK-ETT MISHANDLED YOUR DEFENDANT TRIAL AND DEFENSE.
d. DID ATTORNEY PAUL LUCK-ETT LACK COMMUNICATION WITH ME DURING MY TRIAL CONTRARY TO RULE OF PROFESSIONAL CONDUCT, SPECIFICALLY, CLIENT-LAWYER RELATIONSHIP RULE (1.4), IN THE WAY THAT PAUL LUCK-ETT MISHANDLED YOUR DEFENDANTS TRIAL AND DEFENSE.
e. WAS THE VICTIM STATEMENT INCONSISTENT AND COERCE BY INVESTIGATOR GARFIELD AND LT. COWART OF THE MCCOMB POLICE DEPT.
f.WAS DEFENDANTS UNITED STATES CONSTITUTION AMENDMENT (6) RIGHT TO DUE PROCESS AND (14) RIGHT TO EQUAL PROTECTION MADE OBLIGATORY UPON THE STATE CONSTITUTION AND FURTHER PURSUANT TO MISS CONSTITUTION OF 1890: ARTICLE (3)-26 VIOLATED BY PAUL LUCKETT DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, DANNY SMITH VINDICTIVE PROSECUTION AND JUDGE MIKE SMITH PREJUDICE AND IMPARTIALITY.

¶ 7. None of these issues were presented to the trial court in the petition for post-conviction relief. New issues not presented to the trial court for resolution may not be raised for the first time on appeal. Capnord v. State, 840 So.2d 826, 828(¶ 5) (Miss.Ct.App.2003) (citing Denson v. State, 746 So.2d 927(¶ 17) (Miss.Ct.App.1999)). Accordingly, these issues are not properly before this Court.

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

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