text:
    MISSISSIPPI EMPLOYMENT SECURITY COMMISSION v. Florence Ann CULBERTSON, Bonnie Jones, Joanne McMinn, Kay Ann Staples and Alwilda Savell.
    No. 2000-CC-01033-SCT.
    Supreme Court of Mississippi.
    Dec. 12, 2002.

      Allan P. Bennett, Peyton S. Irby, Rickey T. Moore, Geoffrey Morgan, Jackson, attorneys for appellant.
    Lisa B. Milner, Jackson, Jay Max Kilpa-trick, Philadelphia, attorneys for appellees.
   ON MOTION FOR REHEARING

McRAE, P.J.,

for the Court.

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and this opinion is substituted therefor.

¶ 2. Florence Ann Culbertson (“Culbertson”), Bonnie Jones (“Jones”), Joanne McMinn (“McMinn”), Kay Ann Staples (“Staples”), and Alwilda Saveli (“Saveli”) (the employees) were longtime employees of the Mississippi Employment Security Commission (“MESC”). After years of experiencing a variety of problems in the workplace, the employees filed complaints with the Employee Appeals Board (EAB). They filed notices of appeal with the EAB in the fall of 1996. On April 8, 1999, the EAB issued orders to each of the employees awarding them promotions, back pay, and attorneys’ fees. The MESC appealed this decision to a full board of the EAB, which affirmed the orders of the Hearing Officer on July 28, 1999. The MESC next petitioned the Circuit Court of Hinds County for a writ of certiorari, which was granted, and the circuit court affirmed the orders of the EAB and of the full board on June 6, 2000. Aggrieved, the MESC has appealed the circuit court’s decision. Finding no reversible error only in the award of attorney fees’, we affirm the rulings of the circuit court and of the EAB in all other issues, but reverse and remand for further proceedings regarding attorneys’ fees.

FACTS

¶ 3. The EAB and the full board issued separate orders for each of the five employees, granting essentially identical relief to each. The employees brought four main issues on appeal'to the EAB, only two of which are relevant to this Court’s review, which are: (1) whether the employees were denied promotional opportunities because of the MESC’s failure to follow proper policies and procedures; and (2) whether the employees were entitled to awards of attorneys’ fees. The EAB and the full board found that the MESC did not follow proper policies and procedures in making promotions, and the employees were awarded attorneys’ fees, as well as back pay for three years prior to the filing of their grievances on September 30, 1996.

¶4. The EAB’s ruling stated that (1) testimony revealed many instances when the announcement of a vacancy was posted, yet the position was already filled; (2) the only people who were aware of the promotions were relatives or friends of management or special employees; (3) the MESC appears to have disregarded the register in state service promotions and the procedure in regards to non-state service promotions; (4) the MESC failed to follow the procedures required for review of the certificate of eligibles; (5) failure to follow proper procedure leads to the filling of vacancies with the employer’s favorite employees; and (6) failure to follow the rules and regulations denied the employees the opportunity for promotion. The full board’s orders affirmed these findings and stated in all its orders, “that the Hearing Officer was correct in his finding that the Appellee (MESC) failed to follow the rules and regulations of the Mississippi State Personnel Board related to promotions, and that this failure resulted in the Appellant being denied job promotions.”

¶ 5. The MESC raises several issues on appeal, however, this Court’s review is limited to our oft-cited “arbitrary and capricious” standard. We must review the record and the issues raised in relation to the EAB’s findings; and therefore, the MESC’s issues have been summarized and the relevant issues discussed as they relate to these findings. The following issues will be addressed: (1) whether the EAB had jurisdiction over the case; (2) whether the MESC failed to follow the MSPB’s policies and procedures for promoting employees; (3) whether the MESC failed to follow the proper MSPB policies and procedures for promotions by allowing promotions to be made on the basis of favoritism and/or bias; (4) whether the EAB properly awarded back pay to the employees; and (5) whether the EAB properly awarded attorneys’ fees to the employees. Finding reversible error only in the award of attorneys’ fees, we affirm the ruling of circuit court and of the EAB in all other issues, but reverse and remand for further proceedings regarding attorneys’ fees.

DISCUSSION

I. WHETHER THE EAB HAD PROPER JURISDICTION OVER THE CASE.

¶ 6. As an appellate court, a judgment may not be substituted for that of the properly designated administrative board. United Cement Co. v. Safe Air for the Env’t, Inc., 558 So.2d 840, 842 (Miss.1990).

¶7. The MESC claims that the EAB did not have jurisdiction over this case because the employees failed to exhaust their administrative remedies before filing these claims. However, the employees’ failure to exhaust their administrative remedies in the face of substantial evidence that the MESC did not follow the MSPB rules, will not destroy the jurisdiction of the EAB or an appellate court.

¶ 8. Substantial evidence was presented that employees were discouraged from filing grievances. In addition, the EAB appears not to have disregarded the rules for utilizing administrative remedies prior to filing a lawsuit as it recognized these remedies, such as the requirement that the incident must have occurred within seven (7) days of the filing of a grievance for it to be grievable, in addressing other issues, such as race and sex discrimination.

¶ 9. The EAB properly found that it had jurisdiction over the case.

II. WHETHER THE MESC FAILED TO FOLLOW THE MSPB’S POLICIES AND PROCEDURES FOR PROMOTING EMPLOYEES.

¶ 10. The Mississippi State Personnel Board (“MSPB”) is an administrative agency with the responsibility for oversight of the State’s personnel system. The MSPB has a manual of policies, procedures, and rules to be followed by state agencies in their personnel decisions and operation. The EAB found in its orders that the MESC had disregarded the register in state service promotions and the procedure for non-state service promotions. The MESC argues that the EAB ignored testimony explaining a detailed process for hiring and promoting employees presented by the EAB. It does not appear from the record that the EAB ignored this testimony, but that it found substantial evidence that, despite this detailed process being established, it was not being followed. This is the heart of the EAB’s review.

¶ 11. Charles Downs, the MESC Human Resources Director, testified on May 27, 1998, about the proper procedure for promoting employees within the MESC. The proper procedure to become eligible for a promotion was for an employee to put his or her name on a register for a particular job. Counsel for the MESC explained that the register is “a living computer document that contains the names of every employee ... with the State Personnel Board. And has satisfied the minimum qualification [sic] the position. There is a separate register for every job class specification.”

¶ 12. Downs testified that a person was on the register because he or she had been qualified to be on it by the State Personnel Board. Downs further explained that if an employee received a high enough score with the MSPB, then his or her name was placed on the in-house register, which was used to promote employees from within the commission. The employee’s name would appear on all the registers for positions for which the employee had applied, if he or she was qualified for the position. Once an employee’s name was on a register, the MSPB evaluated several factors to determine a performance rating for that employee, which was placed in their personnel file. Downs stated that before an employee was “graded” by the MSPB, the Board was supposed to have considered such factors as training, experience, length of service, and other factors. Therefore, the performance of an employee entered into the certification process.

¶ 13. Downs also testified that when there was a vacancy in a division, a member of management would make a determination as to whether they wanted to fill the vacancy. If so, a request was made from the division director to the executive director, that instructed the personnel department to create a “certificate of eligibles.” Downs testified that once the request for a certificate of eligi-bles was received, the personnel department was required to give a five-day announcement that the position was open. At the end of these five days and after all the applications for the position were received, the department issued “the certificate of the top ten” people with the highest scores. Downs explained that sometimes ten (10) people were not listed, if 10 employees did not qualify for a position.

¶ 14. This five-day requirement appears to have come from the language of MSPB rule § 3.20, which states, “all recruitment announcements shall be advertised for not less than five working days prior to the closing date.”

¶ 15. In addition, MSPB Rule § 3.30 states,

All announcements of recruitment or promotional opportunities shall contain either (1) the State Personnel Board class specification of the vacancy, or (2) the equivalent of a Mississippi Employment Security Commission job announcement, including the following: title of the position, summary of education and experience requirements, statement of indefinite recruitment or of the recruitment closing date, any examination requirements, salary, geographic location, the phrase, “An Equal Opportunity Employer,” and the information on where further information can be obtained.

Rule § 3.30 clearly states that it also applies to promotions.

¶ 16. In summary, when a job or a position became available, the department heads were required to request a certificate of eligibles from the MSPB, which listed the people with the top ten highest scores who were on the register for that particular job. There may have been more than ten employees listed because some may have had tie scores with other employees. The department head or other hiring official was not required to pick the employee with the highest score on the list, as they were allowed to decide who was best for the position.

¶ 17. However, if more than one qualified person was on a register for a particular job, it was the duty of the department head or other hiring official to compare the people who appeared on the certificate of eligibles prior to making a decision as to who would be granted a promotion. Thomas Lord, executive director of the MESC, testified that a failure to compare the persons who appeared as qualified for a promotion on a certificate of eligibles and promoting employees without considering this list would be a violation of the MSPB’s policies and procedures regarding promotions.

¶ 18. Sonny Scholl was Assistant UI (unemployment insurance) Director, who supervised all departments at the MESC, with the exception of UI Technical Services. Scholl testified that it was the responsibility of the department head or someone under him, ie., the unit head, to look at the register, make a determination of names eligible, and compare these employees prior to recommending an individual for a promotion. Lord testified that the department head was supposed to receive a list of the top ten persons eligible for a promotion and compare the persons on the list. Charlie Ballard, UI Director, also concurred in the above, testifying that the register and the certificate of eligibles should have been consulted before recommending someone for a promotion.

¶ 19. From the record, it appears that this process was inconsistently applied and that MESC officials were confused as to the elements and steps of this procedure. Dale Smith, a department head and Culbertson’s supervisor, testified that he thought his only responsibility regarding promotions was to recommend a person for a promotion and that someone above him would do the rest of the analysis as to who actually received the promotion. This testimony is in contradiction with the testimony of Scholl and Ballard, above, who placed this responsibility on the department heads. Lord further testified that it would not be proper procedure for a department head to make a recommendation of a person to be promoted and then to rely on somebody else to request a list of eligibles afterwards, as Smith appears to have done.

¶ 20. Smith also could not recall looking at the register or comparing the names on a certificate of eligibles when recommending the promotion of employees Karen Watson, Louis Gipson, or Nakita Booker. Another MESC department head, Brenda Kuriger, also admitted making promotions without following proper procedure, such as not comparing the individuals on the certificate of eligibles prior to making promotions.

¶ 21. The MESC alleges that the employees did not state any specific promotions that they should have received over others. However, Florence Culbertson testified that she could have been promoted to the positions of Accountant Auditor III, Program Specialist, Program Specialist Senior, and ES Chief Technical Services. Culbertson further testified that she did not have any derogatory remarks in her personnel file. She had been employed in her department for eighteen years, and her score with the State Personnel Board was a 100. Culbertson stated Angie Nero received a promotion to ES Program Specialist that she (Culbertson) should have received. Nero had a college education, while Culbertson had a degree from a junior college and eighteen years of experience in the fiscal department. Culbertson testified to at least five other promotions she was qualified for and did not receive.

¶22. Bonnie Jones testified to specific promotions she thought she was qualified for and should have received. Jones testified that she trained a younger employee, Jim Martin, who was then promoted over her. JoAnn MeMinn also testified that she lost promotions to other less qualified employees, such as the position of Claims Specialist to Cheryl Johnson, the same position to Patricia Ainsworth in 1992 or 1993, and the same position to Johnny Moore. Not only does MeMinn believe she should have received a promotion, but she did not even know these promotions were available until after other employees had been promoted to these positions.

¶ 23. The MESC argues that some of the promotions complained of above were non-status positions given to non-status employees, who usually were the first employees to be let go if cutbacks were necessary. Promotions to non-status positions did not require a review of the register or a certificate of eligibles. The MESC further asserts that the EAB did not properly adhere to the distinction between status and non-status employees and that, therefore, the EAB’s findings are arbitrary and capricious.

¶ 24. The MESC points out in its brief that, “there was no evidence that the Ap-pellees ever applied for a non-status position ....” If none of the employees applied for non-status positions, then the fact that a review of the certifícate of eligibles was not required for non-status positions becomes irrelevant. Reviews of the certificates of eligibles were required for the promotions the employees hoped to acquire. The employees made it clear that they did not want to lose their benefits as status employees.

¶ 25. While some of the specific promotions cited by the employees above were given to non-status employees, such as Angela Nero, this does not diminish the employees’ complaints that they should have been allowed to compete for these positions along with other qualified employees. The employees make the argument that these were positions they were qualified for and that were given to other employees. Whether these employees were classified as non-status or as status is irrelevant to the review of whether the MESC followed proper policies and procedures for promoting the employees.

¶ 26. Hiring officials would often select a person for a promotion arbitrarily and then require that person to comply with the procedures, such as getting his or her name on a register. The EAB and the full board found that this retroactive application of the promotions process was not in compliance with MSPB rules and regulations.

¶ 27. The record reflects substantial evidence that proper procedures and policies were not followed in making promotions at the MESC. The evidence provided by the MESC illustrates that management was aware of the proper procedures as set forth in the MSPB Manual. However, lower level management, such as department heads, did not follow these procedures, and upper management was not aware of these inconsistencies. Promotions were given without following the proper procedures, and this opened the door for unfair promotions that disregarded other employees’ qualifications for the same position.

¶ 28. The MESC complains that a year prior to these grievances, it was found to have been in compliance with the MSPB’s rules, after an audit performed by the State Personnel Board. However, the Hearing Officer had the opportunity to hear the testimony of employees and make a judgment based upon their grievances and the current state of affairs at the MESC.

¶ 29. In addition, the MESC argues that the EAB erred by concluding that the employees should have been promoted, because there were listings of deficiencies in the employees’ work performances such as lack of attendance by taking too much vacation time, slacking off at work, and lack of managerial skills. However, this argument does not relieve the MESC of its obligation to follow the proper procedures for promotions, which was the heart of the EAB review. The EAB apparently found the violations of the rules concerning promotions was an issue to be weighed more heavily than the defenses the MESC offered as to why the employees were not promoted.

¶ 30. This Court’s review of the matter is not to reweigh the facts of the case, but to assess whether the EAB had substantial evidence upon which to base its findings. Since the record provides many instances where, the proper policies and procedure were not followed, the EAB’s findings were not arbitrary or capricious. The circuit court is affirmed as to this issue.

III. WHETHER THE MESC FAILED TO FOLLOW THE PROPER MSPB POLICIES AND PROCEDURES FOR PROMOTIONS BY ALLOWING PROMOTIONS TO BE MADE ON THE BASIS OF FAVORITISM AND/OR BIAS.

¶31. The EAB found in its order that (1) there were many instances in the record where the announcement of a vacancy was not posted; and (2) the only people who were aware of promotions were “relatives, friends, or special employees.” The record provides substantial evidence for each of these findings; and .therefore, the EAB did not act arbitrarily or capriciously in making its decision.

¶ 32. Several of the employees and also former employees testified that they had witnessed favoritism at the MESC in terms of who received promotions and who received additional training that would qualify them for such promotions.

¶ 33. Karen Watson had been employed for about ten and a half years with the MESC when she testified in February of 1998 that, if an employee was “friends with the boss,” an employee could get almost whatever was requested. Watson testified that she witnessed favoritism in the MESC concerning opportunities for seminars and additional training and named two employees whom she felt had received special or preferential treatment. Delores Martin, a retired employee of the MESC, testified that employee Tonya Faler received additional computer training due to preferential treatment, even though Martin was her superior; and Martin testified that Sue Weaver received a promotion as a result of favoritism. Martin even stated that Culbertson should have received this promotion instead of Weaver. Culbertson testified in detail as to why she thought Angela Nero and Sue Weaver had received promotions due to favoritism. Culbertson testified that Nero had no professional training when she was hired. Culbertson further stated that Weaver lanked the proper qualifications at the time she (Weaver) was instructed to get on the register for her promotion. Weaver lacked “educational, work experience, and lack of supervision” qualities at the time that she applied for her promotion, and Culbertson knew of a “deep personal relationship” between Weaver and Smith, the department head who hired her, from the time the two attended high school together.

¶ 34. Employees also witnessed occasions when other employees were promised a promotion or a position and then were subsequently told to get on the register for that job in order to secure it and to be eligible for it. These practices led the EAB to conclude that the employees “associated this with the employee being told they would be promoted.” This was unfair to the other employees who never had notice that this particular position was available, and therefore, were not allowed the opportunity to get on the register and apply for the job. Essentially, the MESC was picking and choosing specific employees for specific promotions without considering other qualified employees for the position, which is a blatant disregard for the MSPB policies and procedures. Promoting employees in this fashion also provides grounds to support the favoritism testified to by the employees because no consistent procedure appears to have been followed.

¶135. The MESC argues that “encouraging employees to become eligible for promotions is not illegal.” However, encouraging employees to get on the register when it was predetermined that they would receive a position and when they had not been compared with any other employees is not appropriate and violates the MSPB rules, as stated above.

¶ 36. Several employees testified that they found out about a promotion after the person had received it. Joan Collins, a former MESC employee, testified in February 1998 regarding notice of promotional opportunities that, “there was no advanced notice. I would hear by mouth, by word of mouth, and whenever I approached my supervisor the position would be already filled, and about a week later a notice would sometimes come around, circulate that the position was open, but it had already been filled.... The notice would not state it had been filled, but it would have already been filled.” Alwilda Saveli testified that “all ” promotions made at the MESC were made as the result of favoritism. Saveli further testified that usually, one would not find out about a promotional opportunity until months after the position had been apparently offered to someone and filled, and by that time, it was too late to apply for the position. Dale Smith, an MESC department head when he testified in September 1997, stated that he was aware of a relative of management who received a promotion within the MESC.

¶ 37. Once again, the MESC attempts to discredit the credibility of these witnesses by stating either that they could only testify “generally” or that Collins used the term “whenever” in her description of when she would approach her supervisor about a position or that one of the witnesses could not name a specific occasion when this occurred. However, the credibility of the witnesses is not an issue for this Court to decide. Rather the Hearing Officer was in a better position to judge the credibility of the witnesses, and it is not the duty or obligation of this Court, under the proper standard of review, to reweigh the facts in question. If an attack to the credibility of the witnesses on this matter is the only criticism the MESC offers against the employees on this issue, the employees presented substantial evidence that, often times, people would get on a register only after obtaining knowledge that they would receive the position or promotion.

■ ¶ 38. The record provides substantial evidence that promotions were often based on favoritism or bias and not upon the qualifications of the individuals. Because the EAB’s ruling was based upon substantial evidence, we will not disturb it on appeal. The circuit court is affirmed as to this issue.

IV. WHETHER THE EAB PROPERLY AWARDED BACK PAY TO THE EMPLOYEES.

¶ 39. The MESC raises several reasons why the employees should not have been awarded promotions retroactively for three years prior to the filing of their grievances and should not have been awarded back pay, pursuant to the salary of these promotions, for the past three years. The MESC asserts that these promotions and back pay should not have been awarded because Jones was promoted to a position she held as of November 1, 1996, a few months after her appeal was filed with the EAB; because Staples and McMinn had falsified information on their applications; and because McMinn was promoted to a position, the title of which did not exist; among other complaints.

¶ 40. Under section 10, “Grievances and Appeals,” of the MSPB rules, rule 10.40.21(A), “Relief to be Granted,” states,

The Employee Appeals Board may reinstate a prevailing party into employment with his or her responding agency and restore all his or her employee rights and benefits including back pay, medical leave and personal leave. The Board may also restore retirement benefits provided the integrity of such benefits remains uncompromised in accordance with all applicable laws, policies, rules and regulations.

¶ 41. From the rules, the EAB clearly had the authority to award the employees back pay. The errors mentioned above do not amount to significant error sufficient to overturn the EAB’s and circuit court’s decisions. For example, the fact that Jones, was “promoted” by the EAB to the position she acquired a few months after her grievance was filed does not make the EAB’s ruling arbitrary or capricious. It is important to note, however, that the EAB awarded Jones back pay equal to this position for three years prior to the filing of her EAB appeal, which would be an award of back pay for this position starting in 1993. The fact that Jones did in fact receive this position in November of 1996 hardly matters. The MESC does not indicate, and the record does not reflect, that Jones’s award of back pay was duplicative of pay she had already received. The MESC just argues that the EAB misunderstood the facts by awarding Jones a position she already had. As stated above, Jones was awarded back pay retroactively for this promotion for three previous years. This was harmless error by the EAB.

¶ 42. Brenda Kuriger testified that she had reprimanded Staples and McMinn because they were given opportunities to correct their applications, concerning their educational background and did not do so. McMinn stated that she did not receive the original information to correct her application. Staples and McMinn both refused to sign the reprimands. Staples testified that she was not sure about the number of college credits she had received and ventured a guess on her application. She also testified that she later submitted a transcript to correct the error. From the record, it does not appear that this “falsification” is significant enough to.require reversing the EAB’s orders.

¶43. The EAB’s granting of a promotion to McMinn that did not exist also appears to be harmless error. In light of the MSPB rule § 10.40.21(A), the EAB clearly had the authority to award promotions and back pay. The fact that the position of “claims specialist” did not exist, as the EAB has similar titles dealing with “claims,” was harmless error on the part of the EAB, and a simple clarification of the order could have been made. This error is not significant enough to warrant reversal of the EAB’s order.

¶ 44. The MESC further asserts that the employees should not be awarded back pay because of Miss. Const, art. 4, § 96, which states,

The legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections.

Miss. Const, art. 4, § 96.

¶ 45. The MESC supports this assertion by relying on the case of Brame v. Wyatt, 197 Miss. 679, 690, 20 So.2d 667, 668 (1945), which held that a law which allowed for an increase in compensation for tax collectors could not be applied retroactively, or it would violate Section 96. However, in a situation closer to the present one, the Attorney General issued an opinion which stated that “Section 96 of the Mississippi Constitution of 1890 strictly forbids payment of ‘retroactive raises’ to any public employee unless such payment is clearly shown to be ‘back pay’ previously due, but unpaid because of administrative error.” Miss. Atty. Gen. Op., No.1997-0580 (Cofer). The EAB’s award of back pay can easily be considered payment in lieu of an administrative error on behalf of the MESC, as the EAB found that the employees should have been awarded these promotions and payments.

¶ 46. Alternatively, it appears that the awarding of back pay in this case was not in violation of section 96, as the pay was not for services rendered. On the contrary, this back pay was to be the equivalent pay for the promotions given to the employees, which were also retroactively awarded. Therefore, this back pay was not for services previously rendered, but for promotions granted by the EAB. Article 4, section 96 does not apply, and the EAB clearly had the authority to grant the award pursuant to MSPB rule 21. The award of back pay is affirmed.

V. WHETHER THE EAB HAD JURISDICTION OR AUTHORITY TO AWARD ATTORNEYS’ FEES.

¶ 47. Each employee was awarded an amount of attorneys’ fees by the EAB, which was affirmed by the full board and the circuit court. Each employee received $17,500.00 in attorneys’ fees, plus an additional $50.00 for reimbursement of their filing fee. The MESC argues that the award of attorneys’ fees to the appellees in this case was improper because the EAB lacked the authority and jurisdiction to award the fees. We agree. The EAB is a creature of statute, and nowhere in the statutory scheme is the EAB empowered to award attorneys’ fees. In this case, the EAB held that the Litigation Accountability Act of 1988, Miss.Code Ann. §§ 11-55-1 to -15 (2002), allows it to award attorneys’ fees. However, that Act allows only a court, not an administrative board, to award attorneys’ fees:

Except as otherwise provided in this chapter, in any civil action commenced or appealed in any court of record in this state, the court shall' award as part of its judgment ... reasonable attorney’s fees and costs.

Miss.Code Ann. § 11-55-5(1) (emphasis added). The only actual authority for awarding attorneys’ fees is set out by Miss.Code Ann § 11-55-5(1).

¶ 48. The case at bar was appealed to the circuit court. However, the circuit court dealt summarily with the attorneys’ fees issue, in one short paragraph, merely inserting the determination of the EAB almost verbatim (except for seven minor words) into the court’s Memorandum Opinion and Order, as follows:

The record further indicates that with regard to the award of Attorneys fees, the Board decided that the Appellees had to retain counsel to vindicate their rights in regards to the denial of promotions for failure to follow the rules. Extensive pre-trial discovery, numerous motions and numerous witnesses were called at trial that lasted nearly three weeks. The Litigation Accountability Act allows the award where the prevailing party encountered unnecessary expenses in order to vindicate a state protected right. The Appellees had the right to expect that the promotion process would be fair and equal and that all appointments would be done according to the rules and regulations of the Mississippi State Personnel Board Policy and Procedure Manual.

¶ 49. The circuit court did not question the Board’s authority to award the fees, nor did it make any independent analysis as required under the Litigation Accountability Act. Thus, we reverse and remand as to this issue only, in order for the circuit court to review the record according to the mandatory requirements of the Act, which reads in pertinent part as follows:

When granting an award of costs and attorney’s fees, the court shall specifically set forth the reasons for such award and shall consider the following factors, among others, in determining whether to assess attorney’s fees and costs and the amount to be assessed:
(a) The extent to which any effort was made to determine the validity of any action, claim or defense before it was asserted, and the time remaining within which the claim or defense could be filed;
(b) The extent of any effort made after the commencement of an action to reduce the number of claims being asserted or to dismiss claims that have been found not to be valid;
(c) The availability of facts to assist in determining the validity of an action, claim or defense;
(d) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose;
(e) Whether or not issues of fact, determinative of the validity of a party’s claim or defense, were reasonably in conflict;
(f) The extent to which the party prevailed with respect to the amount of and number of claims or defenses in controversy;
(g) The extent to which any action, claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in the state, which purpose was made known to the court at the time of filing;
(h) The amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court;
(i) The extent to which a reasonable effort was made to determine prior to the time of filing of an action or claim that all parties sued or joined were proper parties owing a legally defined duty to any party or parties asserting the claim or action;
(j) The extent of any effort made after the commencement of a n action to reduce the number of parties in the action; and
(k) The period of time available to the attorney for the party asserting any defense before such defense was interposed.

Miss.Code Ann. § ll-55-7(emphasis added).

¶50. The MESC correctly states that the EAB has only limited authority under Miss.Code Ann. § 25-9-131 (1999), and that the awarding of attorneys’ fees is not one of its enumerated powers.

¶ 51. Mississippi has no cases on point that answer whether the EAB has the authority or jurisdiction to award attorneys’ fees. This issue was brought to this Court in a 1999 case, but it was not decided because the State failed to cross-appeal the award of attorneys’ fees. Tillmon v. Miss. Dep’t of Health, 749 So.2d 1017, 1018 (Miss.1999). However, the award of attorneys’ fees by the EAB in Tillmon was allowed to stand because of a procedural bar. That bar does not exist in the present case, thus the employees’ reliance on it is misplaced. Simply put, there is no authority for the EAB to award attorneys’ fees; however, on appeal the litigants may claim the accountability act that is delegated to the Court.

CONCLUSION

¶ 52. The findings of the circuit court and of the EAB, on all issues except attorneys’ fees, were based upon substantial evidence and are not arbitrary or capricious. Therefore, those judgments of the circuit court and the EAB are affirmed. As to the judgment awarding attorneys’ fees, we reverse and remand to the circuit court for further proceedings consistent with this opinion.

¶ 53. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, DIAZ, CARLSON, AND GRAVES, JJ., CONCUR. EASLEY, J„ CONCURS IN PART AND IN RESULT.

      . Bonnie Jones testified that six years of experience could compensate for not having a college degree for the position of ES Program Specialist.


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Edward A. DAVIS, Deceased. Diana B. Davis, Appellant, v. Sidney D. Davis, Jr., Phillip Davis, Deborah Ammann, Jean Cockrell, Marty Steinberger, Nell Mathis, Lisa McDaniels, and Estate of Sidney D. Davis, Sr., Deceased, Deborah Ammann, Executrix, Appellees.
    No. 2000-CA-01232-COA.
    Court of Appeals of Mississippi.
    Nov. 27, 2001.
    Rehearing Denied Feb. 12, 2002.

      Orbie S. Craft, Brandon, Attorney for Appellant.
    Robert Russell, Williard W. Terrell Stubbs, Attorneys for Appellees.
    Before McMILLIN, C.J., BRIDGES, and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

PROCEDURAL HISTORY

FACTS

¶ 1. Edward A. Davis died on December 9, 1995, leaving behind a will and a codicil. The will allocated Davis’s assets to a large group, including his nieces and nephews, his caretakers, the March of Dimes, and the American Cancer Society; however, the will left nothing to his wife, Diana B. Davis. The codicil, however, stated that Diana Davis should be given a very fair treatment and consideration in the division of the estate. The will was presented for probate and the Simpson County Chancery Court issued an order admitting the will to probate and granting letters testamentary. Thereafter, Ms. Davis petitioned for widow’s support and statutory renunciation of the will. Moreover, she brought a lawsuit contesting the will on the grounds that Edward Davis lacked the mental capacity necessary to execute the will, that the heirs under the will exerted undue influence over Edward Davis, and that several of the heirs conspired to intentionally interfere with Diana and Edward’s marital relationship. The will contest was tried before a jury and the jury found against Ms. Davis.

¶ 2. On April 15, 1997, the chancery court held a hearing pertaining to the widow’s allowance and ordered that $2,500 per month be paid Ms. Davis for one year. Thereafter, the court entered an order, to which both parties agreed, staying the payment of the widow’s allowance and preserving the heirs’ rights to interlocutory appeal.

¶ 3. On April 10, 2000, all remaining issues were to go to trial before the Simpson Country Chancery Court. That day, the parties entered into settlement negotiations, and two days later, announced in court that they had reached a settlement. The chancellor asked the parties to dictate the settlement into the record and stated that “[ojnce it’s dictated and there’s that agreement, once we leave today, it’s over.”

¶ 4. During the hearing, Ms. Davis expressed concern over the potential tax consequences of the $600,000 she was to receive as part of the agreement. The chancellor responded by stating no one could guarantee that the money would be tax free. However, the parties agreed that “every reasonable effort” would be made to see that the $600,000 from the estate would be tax free; neither Ms. Davis nor her attorneys continued their objection. Ms. Davis also objected to any agreement which released and protected her former attorney from future malpractice claims; however, the chancellor clarified that the release did not include Ms. Davis’s former attorney. Thereafter, without an objection from any party, the chancellor announced that he approved the settlement.

¶ 5. The attorneys drafted an agreed order pursuant to the terms of the settlement agreement. Ms. Davis then declined to sign the agreement and refused to comply with its terms. On June 22, 2000, the chancellor compelled entry of the previous agreement that had been dictated into the record. During this hearing, Ms. Davis objected to the enforcement of the agreement. The chancellor allowed her to read a prepared statement into the record that reiterated her previous arguments and alleged economic duress. The chancellor, finding that an agreement had been reached at the previous hearing, entered final judgment.

STATEMENT OF THE ISSUES

STANDARD OF REVIEW

¶ 6. Diana Davis makes the following assignments of error:

I. WHETHER THE CHANCELLOR ERRED IN ENTERING THE AGREED ORDER.
II. WHETHER THE TERMS OF THE AGREED ORDER WERE THOSE CONTEMPLATED BY THE PARTIES.

¶ 7. We will not disturb the findings of a chancellor unless the chancellor was manifestly wrong or clearly erroneous. Bowers Window and Door Co., Inc. v. Dearman, 549 So.2d 1309, 1312-13 (Miss.1989). In other words, where the chancellor’s factual findings are supported by trustworthy evidence, they are insulated from reversal on appellate review. Jones v. Jones, 532 So.2d 574, 581 (Miss.1988).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN ENFORCING THE AGREEMENT.

A. Was there a meeting of the minds?

¶ 8. Diana Davis argues that the agreement should not be enforced as there was no meeting of the minds. Specifically, she laments that her in-court assertions, taken with her refusal to sign the agreed order, amounted to nothing more than “an agreement to agree later.” The heirs, however, insist that the agreement was dictated into the record after extensive negotiation and consultation with legal counsel and family members; therefore, the agreement became binding despite the fact that after it had been reduced to writing Ms. Davis refused to sign it. After careful inspection of the record before us, this Court concludes that the chancellor did not commit manifest error when he determined that the parties were bound by the agreement.

¶ 9. It is well established that settlement agreements are contracts. See McManus v. Howard, 569 So.2d 1213, 1215 (Miss.1990); East v. East, 493 So.2d 927, 931-32 (Miss.1986). As a contract, the settlement agreement must contain an offer, acceptance, and consideration. Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023, 1029(¶ 20) & n. 3 (Miss.2000). Consideration and a meeting of the minds between competent contracting parties are the essential elements of a valid, binding agreement. Viverette v. State Highway Comm’n of Mississippi, 656 So.2d 102, 102 (Miss.1995); Brooks v. Brooks, 145 Miss. 845, 850, 111 So. 376, 377 (1927). This Court has noted there cannot be a meeting of the minds until the offeree accepts the provisions and terms set out by the offer. Edwards v. Wurster Oil Co., Inc., 688 So.2d 772, 775 (Miss.1997); Anderton v. Business Aircraft Inc., 650 So.2d 473, 476 (Miss.1995)(stating that “[fjailure to communicate acceptance of an offer is fatal to creation of a valid contract.”).

¶ 10. An offeree may accept an offer in a number of different ways. See Edwards, 688 So.2d at 775; Gatlin, 772 So.2d at 1029(¶ 20)(noting that acceptance often comes in the form of unwritten agreements). This Court has held that a meeting of the minds could be inferred where the parties to a settlement announce in court that an agreement has been reached and subsequently read the agreement into the trial court record. Carroll v. Henry, 798 So.2d 560 (¶ 5) (Miss.Ct.App.2001). See also Palmere v. Curtis, 789 So.2d 126, 131(¶ 10) (Miss.Ct.App.2001)(stating that the dictation of an agreement into the trial court record can constitute evidence of acceptance).

¶ 11. As in Carroll and Palmere, the two parties in the present ease announced to the court that an agreement had been reached. Furthermore, they proceeded to read the agreement into the record. However, after the agreement had been read into the record but before the chancellor had approved it, Ms. Davis raised concerns over whether the $600,000 she was to receive would be tax free.

¶ 12. According to Ms. Davis, she made it clear that no agreement was possible unless the money she was to receive would be tax free. However, Mr. Stubbs, attorney for the heirs, addressed the tax consequences of the money as he read the agreement into the record. Mr. Stubbs stated:

And also, Judge, every reasonable effort will be made by, I’m going to say, all parties in this matter to see that the payment of the $600,000 from the E.A. Davis estate to Diana Davis is tax free. They’ll make every reasonable effort. But they make no representations, no guarantees that — the Davis heirs, being Phillip Davis, Deborah Ammann, Jean Cockrell, Marty Steinberger and Sid-Davis, Jr. make no representation or guarantees or assurances of any kind or sort to Ms. Diana Davis that this will be tax free.

When this provision was read into the record, neither Ms. Davis nor her attorneys objected. In fact, Mr. Howell, one of Ms. Davis’s attorneys, proceeded to a wholly different issue as though the tax provision was not even in dispute.

¶ 13. Ms. Davis’s acquiescence to the tax provision can also be inferred throughout other sections of the record. For instance, before Ms. Davis raised any concern, her own attorney asked the chancellor to verbally approve the settlement, indicating no objection to the tax provision. Likewise, once the chancellor approved the settlement, neither Ms. Davis nor her attorneys objected. Finally, at the end of the hearing, the chancellor invited anyone within the courtroom to raise any further issue they might have had with the agreement; again, no one objected.

¶ 14. Ms. Davis also expressed concern over the release provisions of the agreement, specifically that her former attorney would be immune from any future action she might bring against him. However, the chancellor made it clear that the mutual release only pertained to the present parties and not her former attorney. Thereafter, Ms. Davis appeared to retract her disapproval, at least through her silence and willingness to let her attorneys conclude the hearing. Therefore, we find that any concern Ms. Davis had over the release provisions of the agreement was answered to her satisfaction, at least at that moment, by the chancellor.

¶ 15. Ms. Davis had the right to express concern, and even object to the taxa-bility of the $600,000; furthermore, we concede that it is not always clear in the record as to what the intentions of the parties really were. Nonetheless, our analysis is objective, in this case limited to the record, and we find that Ms. Davis’s interjections were merely questions and concerns that did not amount to a rejection of the agreement. In reaching this decision we note that the chancellor, with more than just the record in front of him, was in the best position to determine whether an agreement had been reached. The chancellor, along with everyone else in the courtroom, including Ms. Davis’s family and attorneys, went to great lengths to address her comments, to the point that, she gave every indication that her misgivings were abated at the hearing’s conclusion. As such, we find that the chancellor did not commit manifest error when he found that there was a meeting of the minds between the parties.

B. Was the agreement void because of economic duress?

¶ 16. Ms. Davis argues that, in the event there was a meeting of the minds, the agreement should be set aside on the ground of economic duress. Specifically, she argues that the estate delayed payment of the widow’s allowance for more than four and one-half years; thus, the estate starved her into “considering a settlement, simply to get that to which she had already been adjudged entitled to get, the money she so desperately needed.” We find this claim without merit as it fails to establish one of the necessary elements comprising a claim of economic duress.

¶ 17. When a court is presented with a claim of economic duress, it must ultimately determine whether the specific conduct by the dominant party dispossessed the complaining party of all volition. Duckworth v. Allis-Chalmers Mfg. Co., 247 Miss. 198, 203, 150 So.2d 163, 165 (1963). See also Kelso v. McGowan, 604 So.2d 726, 732 (Miss.1992); Crase v. Hahn, 754 So.2d 471, 475(¶ 12) (Miss.Ct.App.1999). However, “[i]t is not sufficient that one party insisted upon a legal right and the other party yielded to such insistence. [Economic duress] cannot be predicated upon a demand which a party has a legal right to do.” Duckworth, 247 Miss, at 203-04, 150 So.2d at 163. See also McGehee v. McGehee, 227 Miss. 170, 183, 85 So.2d 799, 804 (1956)(noting that “[i]t is never duress to threaten to do that which a party has a legal right to do.... ”).

¶ 18. The chancellor issued an order, to which both parties consented, staying the payment of the widow’s allowance until the final outcome of all issues pertaining to the action. Furthermore, he ordered the attorney for the estate to place the funds into an interest bearing account until a final judgment had been rendered. According to the heirs:

The parties and the lower court judge wish[ed] to reserve the rights to appeal on the issue of the widow’s allowance until the trial of the merits on all issues involved in this case in order that one appeal to the Supreme Court could be had instead of delaying the case pending the outcome of an interlocutory appeal at that time.

Regardless of the reason for the order, the attorney for the estate was specifically ordered to withhold payment of the widow’s allowance. To act otherwise would have been a flagrant disregard toward a direct order issued by the chancellor. See Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997) (stating that a willful and deliberate disregard of a court order constitutes contempt of court). See also Miss.Code Ann. § 9-1-17 (Supp.2000). The parties had a legal right to seek this order and were legally obligated to comply with the chancellor’s order; as such, Ms. Davis fails to establish the illegality element of economic duress.

II. WERE THE TERMS OF THE FINAL AGREEMENT CONSISTENT WITH THE TERMS CONTEMPLATED BY THE PARTIES?

¶ 19. Ms. Davis argues that the final agreement signed by the chancellor failed to incorporate a particular provision pertaining to the receipt of stock dividends that the original agreement contained. This, according to Ms. Davis, resulted in an agreement not contemplated by the parties. See Ivison v. Ivison, 162 So.2d 329, 336(¶ 23) (Miss.2000). However, this Court finds that the terms of the agreement as dictated into the record control and are consistent with the chancellor’s final order; therefore, Ms. Davis’s claims are without merit.

¶ 20. Again we turn to the Palmere decision for guidance. Palmere involved a purported settlement agreement over the custody and child support payments pursuant to a divorce. Palmere, 789 So.2d at 128(¶ 1). As the issues were set for trial, the parties announced that a settlement had been reached and read the settlement into the record. Id. at 128(¶ 2). However, following the agreement, the chancellor entered a final decree that added language to a fundamental term within the initial agreement. Id. at 132(¶ 12). This Court concluded that once the agreement had been dictated into the trial court record, it became binding upon the parties. Id. at 131(¶ 10). Therefore, this Court remanded the case to the chancellor in order that he enter a judgment consistent with the agreement that had been read into the record. Id. at 132(¶ 13).

¶ 21. Unlike the judgment in Palmere, the judgment issued by the chancellor in the case at bar does not detract or add to the essential obligations of the original agreement. Furthermore, neither the heirs nor the estate contest the absence of the collateral language absent in the final judgment. As the attorney for the heirs made clear, Ms. Davis would be entitled to the stock dividends as long as she had legal title to the stock. Finally, the final judgment was entered on June 28, 2000. According to the terms of the final judgment, Ms. Davis was to tender the stock to the court’s registry by July 5, 2000. Therefore, she was no longer entitled to the dividends, under the terms of her own agreement, after July 5, 2000. Ms. Davis offers no evidence showing that the dividends were withheld from her during the seven days after the entry of the final judgment. As such, we dismiss Ms. Davis’s claim as meritless.

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

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


author: BRANTLEY, J.,

text:
    Christopher Alan MYERS a/k/a Christopher Myers, Appellant, v. STATE of Mississippi, Appellee.
    No. 2000-KA-01532-COA.
    Court of Appeals of Mississippi.
    March 5, 2002.
    Rehearing Denied June 18, 2002.
    Certiorari Denied Dec. 5, 2002.

      James A. Williams, Meridian, attorney for appellant.
    Office of the Attorney General by Dewitt T. Allred III, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES, and BRANTLEY, JJ.
   BRANTLEY, J.,

for the court.

¶ 1. Christopher Myers was convicted in the Lauderdale County Circuit Court of murder. Myers appeals, arguing that the court erred in instructing the jury, allowing testimony that referenced a suppressed confession and denying the motion for a judgment notwithstanding the verdict or in the alternative a new trial. In addition, he argues that he received ineffective assistance of counsel in the selection of the jury. However, the State argues that the verdict should be affirmed as the evidence supported the conviction and that the trial court did not err. Finding no error, we affirm.

FACTS

¶ 2. On August 27, 1999, the Lauderdale County Sheriffs Department responded to a report of the discovery of a dead body. After identifying the victim as Tony Davis, the investigators interviewed Danny Williams who Davis’s family indicated was associated with Davis. Williams told the investigators that he was with Myers and Davis when Myers shot Davis.

¶ 3. Two guns and ammunition were found in the freezer at Myers’s brother’s home, where Myers lived. One of the guns was tested and was determined to be the one involved in the death of Davis. Myers’s fingerprints were also found on that weapon.

¶4. During the trial, Williams testified that Davis joined him and Myers while riding in Myers’s car on the night of August 26, 1999. They drove down a dirt road where they parked. The three men stood outside the car talking and laughing. Williams then got in the back seat of the car, A few minutes later he heard a gunshot, Davis saying “Stop, Leave me alone” and more gunshots. Myers jumped in the car, drove off, turned around, fired two more shots and drove away.

¶ 5. Myers’s brother testified that early on the morning that the body was found, Myers asked him if he wanted to see a body. He told his brother that he had killed someone and if he did not believe him then he should look in the freezer because that is where he hid the gun.

¶6. At the close of the State’s case, Myers moved for a directed verdict which the judge denied. The defense rested without putting on any evidence. After the verdict, Myers filed a motion for a JNOV or in the alternative a new trail. Both were denied.

DISCUSSION OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GIVE CIRCUMSTANTIAL EVIDENCE AND MANSLAUGHTER INSTRUCTIONS.

A. Circumstantial evidence instnction

¶ 7. Myers argues that the court erred in failing to grant a circumstantial evidence instruction because there was no evidence of Myers’s reckless disregard to life. Circumstantial evidence instructions are only given when the State is without a confession or eyewitness to the offense charged. Moore v. State, 787 So.2d 1282, 1288(¶ 18) (Miss.2001). Direct evidence excludes any necessity for a circumstantial evidence instruction. Sullivan v. State, 749 So.2d 983, 992(¶ 20) (Miss.1999).

¶ 8. Here, Myers confessed shooting Davis to his brother. Additionally, Williams testified that he, Davis and Williams were together that night and he heard the shots. Then, after Myers drove away in the car with Williams, Myers turned around and Williams saw Myers shoot out of the car window. There was direct evidence presented at trial and a circumstantial evidence instruction was not warranted.

B. Manslaughter instruction

¶ 9. Myers also argues that as a matter of policy the court should give a manslaughter instruction automatically whenever a depraved-heart murder instruction is given. Whether, as a matter of policy, a manslaughter instruction should automatically be given was not asserted in the trial court below and will not be addressed here. However, we will address whether a manslaughter instruction should have been given in this case. The State argues that the court properly denied the heat-of-passion manslaughter instruction because no evidence supported the giving of such an instruction.

¶ 10. The trial court may refuse an instruction when it incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Agnew v. State, 783 So.2d 699, 702(¶ 6) (Miss.2001) (citing Humphrey v. State, 759 So.2d 368, 380(¶ 33) (Miss.2000)). Heat of passion is defined as a violent uncontrollable rage, hatred, resentment or terror. Agnew, 783 So.2d at 703 (citing Graham v. State, 582 So.2d 1014, 1017 (Miss.1991)). However, words alone or mere disagreements are not enough to require a heat-of-passion instruction. Gates v. State, 484 So.2d 1002, 1005 (Miss.1986).

¶ 11. Here, there is no evidence of a disagreement between Davis and Myers. Williams testified that he did not hear any argument between the two men before hearing the shots ring out. Davis testified that before he got into the car, the three of them were talking and laughing. Additionally, Myers’s brother testified that Myers had killed Davis because he “pissed him off’, but such testimony without more is not enough evidence to necessitate a manslaughter instruction.

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING TESTIMONY REFERENCING THE SUPPRESSED CONFESSION.

¶ 12. During cross-examination of the investigator, the defense questioned why Williams’s fingerprints were not compared to those found on the weapon and why no one else was charged or investigated. On redirect, the State asked if they had any reason to believe anyone else was involved. The investigator responded that Williams had been cooperative in explaining what had occurred and that “we had already spoken with Mr. Myers, who had told us his version.” The defense objected and the judge sustained the objection, admonishing the jury to disregard the statement.

¶ 13. Myers does not fully explain this assignment of error and only cites authority dealing with the voluntariness of a confession. Here, the lower court had already ruled that Myers’s confession was inadmissible. If the assignment of error is that the trial court erred in failing to grant a mistrial, then Myers has failed to cite to any authority on this issue. This Court will not review any issues where the party has failed to cite relevant authority. Williams v. State, 708 So.2d 1358, 1360-61 (¶ 12) (Miss.1998). Therefore, we will not further address this issue.

III. WHETHER THE JURY INSTRUCTION IMPROPERLY INSTRUCTED THE JURY ON ELEMENTS OF CRIME.

¶ 14. Myers argues that the depraved-heart murder instruction given to the jury contained assumptions of material facts and that his conviction should be reversed and remanded for a new trial. However, this argument was not made below to the trial court. This Court will not address an issue first raised on appeal. Holland v. State, 705 So.2d 307, 352 (Miss.1997). Therefore, this issue is proeedurally barred.

IV. .WHETHER MYERS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 15. Myers argues that he received ineffective assistance of counsel because of his trial attorney’s failure to agree with the judge to strike certain jurors for cause. During voir dire, eight veniremen stated that they had read an article about the case. When asked, three of the eight stated that they could not disregard the article and were struck for cause along with two others of the eight. The judge proposed that he would strike the remaining three. Both sides objected and stated that the veniremen had been honest in stating that they had read the article, but could disregard it and only look at the evidence presented at trial. One of the remaining three veniremen was placed on the jury.

¶ 16. Myers has failed to cite to any relevant authority dealing with ineffective assistance of counsel, but cites to authority dealing with change of venue. As stated above, this Court will not address any issue where a party has failed to cite to any relevant authority. Williams, 708 So.2d at 1360-61 (¶ 12). Therefore, we will not address this issue.

V. WHETHER THE CONVICTION WAS AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

' ¶ 17. The standard of review for sufficiency of evidence is well settled by our Court. This Court will not reverse a jury verdict unless when reviewing the evidence in a light most favorable to the verdict, no reasonable juror could find the defendant guilty beyond a reasonable doubt. Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998). In addition, it is the jury’s duty to determine the weight and credibility of the evidence. Id.

¶ 18. Myers argues that he should have been granted a new trial. A new trial will not be granted, unless “the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Whether to grant or deny a motion for a new trial is in the discretion of the trial court, and will not be reversed unless this discretion was abused. Catchings v. State, 684 So.2d 591, 600 (Miss.1996).

¶ 19. Myers’s brother testified that Myers confessed to him. The gun was found exactly where Myers told his brother the gun was located and was identified as the weapon involved in the death of Davis. Williams testified that Davis and Myers did not argue, but they were all laughing and -talking together right before Williams returned to the car and heard the shots. Williams also testified that Myers drove off, turned around and fired a couple of more shots at Davis from the car window. The weight and sufficiency of the evidence supports the conviction. Finding no errors, we affirm.

¶ 20. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO LAUDER-DALE COUNTY.

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


author: KING, P.J.,

text:
    Michael L. RHOADES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KM-00130-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Rehearing Denied Aug. 27, 2002.
    Certiorari Denied Dec. 5, 2002.

      Anthony L. Farese, David Lee Robinson, Ashland, attorneys for appellant.
    Office of the Attorney General by Dewitt T. Allred, III, attorney for appellee.
    Before KING, P.J., BRIDGES, and CHANDLER, JJ.
   KING, P.J.,

for the court.

¶ 1. Michael L. Rhoades was originally convicted of DUI First Offense in the Justice Court of Lafayette County, Mississippi. He appealed this conviction to the Lafayette County Circuit Court which affirmed the justice court’s conviction in a de novo bench trial. He now appeals that decision and assigns the following issues as error:

I. Whether there was sufficient evidence to support a DUI-First Offense conviction.

II. Whether the trial judge committed reversible error by admitting evidence of the horizontal gaze nystag-mus (HGN) test given to Rhoades.

FACTS

¶ 2. On January 28, 1998, at approximately 2:00 a.m., University Police Officer Libby Lytle was on foot patrol near a male dormitory on the University of Mississippi campus. While inside the lobby, Officer Lytle heard loud music coming from a vehicle in the parking lot. Officer Lytle observed a vehicle drive up to the curb in a “no parking” area. The officer went out to speak to the driver, Michael Rhoades, and instruct him to turn the music down. As Officer Lytle approached the vehicle, she saw him “sitting there with an open can of beer in his hand.” At that time, the officer also observed in plain view a twelve-pack of beer on the passenger seat.

¶3. Officer Lytle testified that, as she spoke with Rhoades, she noticed that he had “redness of the eyes.” She also noted that his pupils were dilated, his speech was slurred, and the odor of alcohol emanated from his breath. Having made these observations, Officer Lytle asked Rhoades to step out of the vehicle to determine “if he was under the influence of an intoxicating beverage or not.” At this point, Rhoades agreed to perform some field sobriety tests.

¶ 4. Officer Lytle administered the HGN test, the walk and turn test, and the one legged stand test. Officer Lytle testified that Rhoades lost his balance while performing the “walk and turn” test, and also failed the one legged stand.

¶ 5. Based upon her observations, Officer Lytle determined that Rhoades had driven a vehicle under the influence of an intoxicating beverage. She placed Rhoades in custody to offer him the Intoxi-lyzer 5000 at the Lafayette County Detention Center.

¶ 6. Officer Lytle retrieved the alcohol from the vehicle, inventoried it as evidence and then radioed for transportation. Officer Hernandez arrived and transported Officer Lytle and Rhoades to the detention center. Upon arrival, Officer Hernandez prepared the intoxilyzer machine. Officer Hernandez read Rhoades the intoxilyzer checklist statement several times. Thereafter, Rhoades refused to take the intoxi-lyzer test and was placed under arrest for possession of alcohol by a minor and DUI.

¶ 7. During trial, Officers Lytle and Hernandez testified that they observed signs of intoxication by Rhoades.

¶ 8. In a non-jury trial, on January 19, 2001, the court found that the State had failed to prove the possession of beer, but did find Rhoades guilty of DUI First Offense. Rhoades was sentenced to serve a term of forty-eight hours in the county jail, ordered to pay a $750 fine and all other costs and assessments, with the jail time being suspended upon payment of the fine, fees and costs.

ISSUES AND ANALYSIS

I.

Whether there was sufficient evidence to support a DUI First Offense conviction.

¶ 9. Rhoades contends that there was not sufficient evidence to support a DUI First Offense conviction. To determine whether there was sufficient evidence to support the conviction, this Court adheres to the following standard:

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

Porter v. State, 749 So.2d 250 (¶ 22) (Miss.Ct.App.1999) (citations omitted).

¶ 10. In his brief, Rhoades acknowledges that the State proved the first element of the offense regarding whether he was operating a vehicle. However, Rhoades contends that the State did not prove “beyond a reasonable doubt” that he was under the influence of intoxicating liquor.

¶ 11. The State’s witnesses testified as to their observations of Rhoades and the field sobriety tests given. Officer Lytle testified that she observed Rhoades drive up to the “no parking” area. The- officer further stated that while talking with Rhoades, she noticed that he had an open can of beer in his hand, there was a twelve-pack of beer on the passenger side in plain view, his eyes were red, his pupils were dilated, his speech was slurred and he had an odor of an intoxicating beverage on his breathe. Officer Lytle also indicated that Rhoades failed the sobriety tests given.

¶ 12. While talking with Rhoades, Officer Hernandez observed that Rhoades had slurred speech, unsteadiness on his feet, the smell of an intoxicating beverage on his breathe and had trouble understanding the intoxilyzer checklist statement which was read to him.

¶ 13. The trial judge has sole authority to determine the credibility of a witness when sitting as the trier of fact in a bench trial. Nix v. State, 763 So.2d 896(¶ 6) (Miss.Ct.App.2000). The trial judge stated that “I don’t think that I have any other choice under the law and under the proof that has been presented here today but to find that Mr. Rhoades was intoxicated and that he was driving an automobile while under the influence of alcohol and that will be the judgment of this court....”

¶ 14. We find that the State did show pursuant to Miss.Code Ann. Section 63-ll-30(l)(a) (Rev.1996) that Rhoades was driving or operating a vehicle, through Officer Lytle’s testimony. The State also showed, through the testimony of Officers Lytle and Hernandez regarding their observations of Rhoades and the sobriety tests given, that Rhoades was “under the influence” of an intoxicating beverage while operating a vehicle. There is accordingly sufficient evidence to support the conviction.

II.

Whether the trial judge committed reversible error by admitting evidence of the horizontal gaze nystagmus (HGN) test given to Rhoades.

¶ 15. Rhoades’ claims that the trial judge committed reversible error in allowing testimony of the horizontal gaze nys-tagmus test given to Rhoades. This Court has set forth the following standard of review regarding the admission of evidence:

Under the Supreme Court’s standard of review, the admissibility of evidence rests within the discretion of the trial court. However, this Court must also determine whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility. If in fact the trial court has incorrectly perceived the applicable legal standard in its fact findings, the Court applies a substantially broader standard of review. However, a denial of a substantial right of the defendant must have been affected by the court’s evidentiary ruling. Furthermore, the trial court’s discretion must be exercised within the scope of the Mississippi Rules of Evidence and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs. We have also stated that “[t]he mere fact that the trial court committed error in an evidentiary ruling does not by itself warrant a reversal by this Court.”

Young v. City of Brookhaven, 693 So.2d 1355, 1358 (Miss.1997) (citations omitted).

¶ 16. In this matter, the prosecutor asked Officer Lytle which tests she administered to Rhoades. The officer testified that she offered Rhoades the HGN test, but did not testify as to the numerical results of the HGN test. Officer Lytle testified that as a result of administering this test, she found probable cause to give the other tests previously mentioned.

¶ 17. According to the record, there was no testimony as to the numerical result of the HGN test, nor that this was the only test relied upon. The test results were not admitted into evidence. For these reasons, we find that the trial court did not commit reversible error regarding the HGN test.

¶ 18. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF CONVICTION OF DUI-FIRST OFFENSE AND SENTENCE OF FORTY EIGHT HOURS IN THE LAFAYETTE COUNTY DETENTION CENTER, WITH JAIL TIME SUSPENDED UPON PAYMENT OF $750 FINE AND OTHER COSTS IS AFFIRMED. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: IRVING, J.,

text:
    KEMPER COUNTY SCHOOL DISTRICT, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2001-CC-00303-COA.
    Court of Appeals of Mississippi.
    May 14, 2002.
    Rehearing Denied Aug. 6, 2002.
    Certiorari Denied Dec. 5, 2002.
    Bennie L. Jones, Jr., West Point, attorney for appellant.
    Albert B. White, Madison, John Wesley Garrett, Jr., Clinton, attorneys for appel-lee.
    Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.
   IRVING, J.,

for the court.

¶ 1. This appeal arises from a judgment of the Kemper County Circuit Court affirming the Board of Review of the Mississippi Employment Security Commission (the Commission) which granted unemployment benefits to Donald Griffin, a former employee of Kemper County School District (District). Only one issue is posited for appellate review: whether the trial court erred in affirming the Commission’s grant of unemployment benefits to Griffin.

¶ 2. We find no error, therefore, we affirm the judgment of the trial court.

FACTS

¶ 3. Griffin was employed for eleven and one half years as the food manager with the Kemper County School District in De-kalb, Mississippi. He was terminated on March 27, 2000, for failure to follow work policies and procedures and because of a lack of accountability for the property under his supervision. Prior to his termination, audits by the Mississippi Department of Education for fiscal years 1996-97 and 1997-98 revealed deficiencies in inventory controls, expenditure, purchasing practices, proper documentation of production records and internal controls.

¶ 4. In a memo to the District’s board dated June 18, 1999, Ms. Rosie Clifton, then superintendent of the District, had recommended to the District that Griffin be re-employed on a probationary status with a ninety-day plan of improvement. The plan of improvement indicated a need for improvement in (1) treating all employees with respect, (2) monitoring all areas of food purchasing to ensure adequate profit is generated, (3) abiding by all board policies and procedures for purchasing, (4) signing all requisitions with his original signature, (5) monitoring cash variances and investigating any shortages or overages, (6) proofing all figures to ensure there would be no over-claims on future reports, (7) maintaining and submitting on a monthly basis a current inventory, and (8) ensuring the accuracy of indirect cost calculations and submitting them in a timely fashion. Additionally, Griffin was directed to cease claiming in-district travel not authorized by the board. Finally, Griffin was to be reconsidered for employment and a pay increase in October 1999.

¶ 5. As previously stated, Griffin was fired on March 27, 2000. He filed a claim for unemployment benefits and the claims examiner determined that he was not qualified for benefits due to misconduct. Griffin appealed. On appeal, the appeals referee determined that Griffin was discharged for unsatisfactory job performance in that Griffin failed to take reasonable actions to follow policies and standards of the school district, the Mississippi Department of Education, and the Office of Child Nutrition. The referee also determined that Griffin’s failure to do so constituted misconduct and affirmed the decision of the claims examiner. Griffin appealed to the Board of Review which reversed the decision of the appeals referee. The Board of Review concluded that the evidence was insufficient to support a finding that Griffin’s lack of performance showed a willful wanton disregard for his employer’s interest, or a deliberate disregard of the standard of behavior that his employer had the right to expect from him. Moreover, the Board of Review found that the evidence did not show a carelessness and negligence by Griffin sufficient to manifest culpability, wrongful intent, or evil design or to show intentional and wanton disregard of the school district’s interest. Finally, the Board of Review found that the evidence did not show that Griffin’s unsatisfactory performance rose to the level of misconduct as it is used within the law to warrant a disqualification of eligibility for unemployment benefits.

¶ 6. The District appealed to the Circuit Court of Kemper County, and that court entered an order finding that there was sufficient evidence to support the decision of the Board of Review. It is from this order that this appeal emanates.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. The District has listed a plethora of tasks which, according to the District, Griffin failed to accomplish. However, there is no need for us to list them. We accept the District’s contention that Griffin indeed failed to accomplish the various tasks. So far as we can tell, the Commission did not dispute that Griffin performed poorly, but, concluded, as stated, that Griffin’s lack of performance and failures did not amount to misconduct such as would disqualify him from receiving unemployment benefits.

¶ 8. The standard of review of decisions made by an administrative agency is well-defined under Mississippi law. “An agency’s conclusions must remain undisturbed unless the agency’s order is not supported by substantial evidence, is arbitrary or capricious, is beyond the scope or power granted to the agency, or violates one’s constitutional rights.” Allen v. Mississippi Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994) (citing Mississippi Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)).

¶ 9. In Wheeler v. Arriola, 408 So.2d 1381 (Miss.1982), the Mississippi Supreme Court defined “misconduct” as “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Id. at 1383. “Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered ‘misconduct’ within the meaning of the statute.” Id.

¶ 10. The District received audits as early as 1995 that revealed deficiencies in Griffin’s work performance. The District was aware that there were problems within inventory controls, expenditure, purchasing practices, proper documentation of production records and internal controls. However, Griffin was not terminated at that time. Additionally, the record indicates that, prior to being placed on probation, Griffin had been reprimanded for failure to have the cashier make daily deposits. Nevertheless, Clifton still recommended him as food service director for the following school term. While it is true that the recommendation was for re-employment in a probationary status, coupled with a ninety-day plan of improvement, there is no evidence in the record indicating that anyone, including Clifton, followed up with Griffin to determine his progress.

¶ 11. In a correspondence dated February 29, 2000, from Griffin to the District’s attorney, Griffin discussed his probationary status, requested that it be lifted, and further requested that he receive his pay increase. Griffin also discussed improvements that he had made in the nine areas designated in the plan of improvement. The record does not reveal any response by the District’s attorney to Griffin’s inquiry. Apparently, Griffin’s termination, a little over a month later, was the District’s response.

¶ 12. We certainly understand and agree that the District had ample reason to terminate Griffin. However, a termination for cause does not necessarily mandate that unemployment benefits be denied. As we have already pointed out, the conduct, giving rise to the termination, must be willful and in wanton disregard of the employer’s interest or in deliberate violation or disregard of standards of behavior which the employer has the right to expect from his employee. We cannot say that the record is devoid of evidence supporting the Commission’s determination that Griffin’s poor performance does not rise to the requisite level such as would justify a disqualification of unemployment benefits.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF KEMPER COUNTY IS AFFIRMED.

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