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

text:
    Charlie MORRIS and Phyllis Allen, Appellants, v. Inez WALDEN and Linda Walden, Appellees.
    No. 2002-CA-00084-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      Barry Bridgforth, Southaven, Philip David Bridges, attorneys for appellants.
    Minor F. Buchanan, Jackson, attorney for appellees.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. The defendants were found guilty of criminal contempt in an ongoing chancery suit. They were ordered to pay $3,600 in actual damages, the plaintiffs’ reasonable attorney’s fees, and $30,000 as a penalty, all payable to the plaintiffs. Undecided was an underlying contract dispute. This is an appeal solely from the award of attorney’s fees and the sanctions for contempt. We find that this interlocutory appeal was never perfected. We therefore dismiss the appeal.

STATEMENT OF FACTS

•¶ 2. Charlie Morris and Phyllis Allen granted a lease of real property in Holmes County to Inez Walden and Linda Walden. The lease commenced on June 30, 1997. The property was commonly known as “The Goodman Racetrack & Park.” It was the site of concerts and other public gatherings. A dispute arose over whether the lessors’ continued use of the land for events and related purposes such as for concession stands, interfered with the lessees’ rights of exclusive use and possession. The Waldens filed suit against Morris and Allen on May 5, 2000. The basis was tortious interference with business activities and breach of contract. That same day, the chancellor issued a temporary restraining order enjoining Morris and Allen from further interference of the Wal-dens’ use of the property. On June 30, 2000, the chancellor issued a preliminary injunction ordering Morris and Allen to cease interference with the Waldens leasehold rights.

¶ 3. On April 19, 2001, the Waldens filed a motion for criminal contempt against Morris and Allen for violations of the injunction. The chancery court, on December 17, 2001, found Morris and Allen in criminal contempt, and ordered them to pay $3,600 in actual damages, reasonable attorney’s fees, and $30,000 in sanctions. The sanctions were to be paid to the Wal-dens. Morris and Allen appeal the attorney’s fees and sanctions, but they do not appeal the finding they were in contempt or the payment of actual damages. According to the record before us, a final judgment on the tort and breach of contract claims has not been entered.

DISCUSSION

1. Premature appeal

¶ 4. On January 15, 2002, Morris and Allen filed a motion to reconsider the ruling on contempt, for clarification and for certification of interlocutory appeal. On the same day, they filed a notice of appeal “from that final judgment.” A “notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.” M.R.A.P. 4(d). There is no order in the record denying the post-trial motion. Issues about the excessiveness of the penalty and other matters should have first been addressed by the trial court. Perhaps they were but only after the completion of the appellate record.

¶ 5. In a similar situation, this Court dismissed an appeal because there was no evidence that the appellant’s motion had been granted to permit an out-of-time appeal. Forkner v. State, 852 So.2d 604 (¶ 8) (Miss.Ct.App.2002). The Supreme Court overturned the decision after granting a writ of certiorari. It ordered that the trial court clerk supplement the record with any order on the motion entered after the earlier certification of the trial record, or if no order existed, required that the appellant seek a ruling on the motion and provide a copy to the court. Forkner v. State, 2001-CT-00754-SCT (Miss. July 24, 2003) (order requiring supplementation of record).

¶ 6. Based on the Supreme Court’s action in Forkner, we have considered entering an order here to determine whether the motion for reconsideration has ever been ruled upon. However, we find certain distinctions that cause us to take a different approach.

¶ 7. First, a party found in contempt has a right to appeal from that decision even though the merits of the litigation in which the contempt order was entered have not yet been resolved. If the party is found in criminal contempt, this is the statute that may be utilized:

(1) A person ordered by any tribunal, except the supreme court, to be punished for a contempt, may appeal to the court to which other cases are appeal-able from said tribunal. Where the punishment is either a fine only, or jail confinement only, the appeal shall be allowed upon the posting of a bond ... [of $1,000.00].

Miss.Code Ann. § 11-51-11 (Rev.2002). Similar rights exist if parties are found to be guilty of civil contempt. Miss.Code Ann. § 11-51-12 (Rev.2002). What the statute does not explicitly state is whether the appeal may be taken immediately from ongoing litigation, or whether there must be a final judgment in the entire case. It appears the statute has been utilized for the salutary purpose of allowing immediate appeal from the contempt order. See Purvis v. Purvis, 657 So.2d 794, 796 (Miss.1995) (appeal taken directly from contempt order during divorce proceedings). We interpret the statute to provide a right of immediate appeal. However, these statutes were not validly invoked. Morris and Allen filed a notice of appeal, did so before receiving a ruling on their motion for reconsideration, and failed to post a bond. These parties who wished to appeal employed a statute that granted them that right, filed the notice before a ruling on a reconsideration motion, and paid the estimated costs other than for the bond. The statutes on appeal from a contempt do not establish a time limit for when the bond must be acquired. These defects do not create grounds for mandatory dismissal. See M.R.A.P. 2(a)(1). Nonetheless, we do dismiss. There is more to correct here than in Forkner, but that is not the reason that we decline simply to stay our ruling until the perfection of the appeal occurs. We explain the other factor next.

¶ 8. Permitting a party to correct certain non-jurisdictional deficiencies in the appeal rests on the sound discretion of the appellate court. M.R.A.P. 2(a)(2). Permitting a bond to be acquired now and acquiring proof of a ruling on the reconsideration motion would allow the appeal to proceed. However, it is obvious on this record that still other matters must be addressed before a final resolution of the contempt issue may be reached. We turn to those now.

2.Contempt

¶ 9. Morris and Allen allege that the chancellor awarded too much as a penalty and also erred in having the penalty paid to the Waldens instead of to the court. The chancellor ordered Morris and Allen to pay the Waldens “$30,000 as sanctions for wilfully, wantonly and contumaciously violating the Preliminary Judgment.” Morris and Allen argue that the court cannot award the Waldens another amount that exceeds their actual damages of $3,600. They argue that a fine for criminal contempt is to be paid to the court, not the private party.

¶ 10. Criminal contempt differs from civil contempt in several ways. In criminal contempt, it is the dignity of a court that is at stake and any fine should be paid to the court. Ill. Cent. R.R. Co. v. Winters, 815 So.2d 1168, 1180(¶47) (Miss.2002). On the other hand, “fines in civil contempt are payable to the party injured by noncompliance with the court’s order and are related to, and ordinarily should not exceed, the injured party’s proved losses and litigation expenses, including counsel fees.” Id., quoting Hyde Constr. Co. v. Koehring Co., 387 F.Supp. 702, 715-16 (S.D.Miss.1974) (footnotes omitted), aff'd as modified in part and rev’d in part on other grounds sub nom. Dunn v. Koehring Co., 546 F.2d 1193 (5th Cir.1977), clarified on rehearing, 551 F.2d 73 (5th Cir.1977). The fine here was in addition to recompense for the Waldens’ actual losses.

¶ 11. The decree from which the attempt to appeal was taken creates these ambiguities as to whether the chancellor intended to enter an order of criminal or civil contempt:

1. In the petition for contempt, the Wal-dens requested criminal contempt.

2. In the contempt hearing, the chancellor noted that criminal contempt was requested.

3. However, the “conclusions of law” section of the chancellor’s opinion sets out the legal standards for civil contempt.

4. The decree concludes by holding the defendants in “contempt” and awarding the plaintiffs $30,000.

5. The $30,000 sanction is punitive in nature. The chancellor made a specific finding of actual damages in the amount of $3600, and made that award. The record and the briefs establish actual damages as $3000 in proceeds from land rental for a cellular tower and $600 (60 people at $10 per ticket) from a rap concert.

¶ 12. Most but not all of the decree is directed towards considerations of criminal contempt. If that was the purpose, it would have been error to require those in contempt to pay sanctions to the other parties. The court had ordered Morris and Allen to refrain from interfering with the Waldens’ use of the property and their leasehold rights. The defendants violated the orders that restrained them by interfering with the Waldens’ rights concerning the property. The penalty appears to be a criminal sanction for the violation of these court orders.

¶ 13. Even were we to suspend the rules and allow perfection of the appeal at this late date, the just-noted ambiguities of the decree would remain. If the chancellor intended this to be criminal contempt, then changing the payee of the fine also might cause reconsideration of the amount of the fine. Other considerations might arise. We find that it necessary for those options to be considered and rulings made before we evaluate the contempt on the merits.

¶ 14. Morris and Allen’s perception that they need to pursue this statutorily permitted but interlocutory appeal just on the contempt issue might also be re-evaluated once the chancellor reconsiders the matters that we have discussed.

S. Attorney’s fees

¶ 15. Morris and Allen also contest the attorney’s fees award. Since we are dismissing the appeal, we only note this additional issue. The chancellor in addressing the other matters necessary for our review may also consider whether there is any merit to the objections to the fees that have been raised by the defendants.

¶ 16. THE APPEAL FROM THE JUDGMENT OF CONTEMPT AND AWARD OF ATTORNEY’S FEES MADE BY THE CHANCERY COURT OF HOLMES COUNTY IS DISMISSED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.

McMILLIN, C.J., BRIDGES, LEE, IRVING, AND GRIFFIS, JJ., CONCUR. KING, P.J., CONCURS IN RESULT ONLY. MYERS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY THOMAS AND CHANDLER, JJ.

MYERS, J.,

Dissenting:

¶ 17. The majority acknowledges that the appellants have a statutory right to appeal an order of contempt despite the fact that the merits of the litigation from which the contempt order generates have not been resolved. In addition, the majority acknowledges that the deficiencies preventing this statutory right from being invoked do not require mandatory dismissal. However, the majority holds that dismissal is nevertheless required because other matters must be addressed before a final resolution of the contempt issue may be reached.

¶ 18. The majority finds two matters that must be addressed by the lower court. First, the majority finds that ambiguities in the chancellor’s contempt decree require reconsideration of whether the chancellor intended this to be criminal contempt or civil contempt. If the chancellor intended this to be criminal contempt, then the court is the proper recipient of the sanction. Second, the majority finds that changing the payee of the sanction also requires reconsideration of the amount of the sanction.

¶ 19. I agree with the majority that the chancellor erred in awarding the Waldens the sanction. I also agree with the majority that the proper recipient of a sanction for criminal contempt is the court. However, I find it unnecessary for the lower court to reconsider these above stated matters before we can consider the contempt on the merits. Therefore, I respectfully dissent.

1. Ambiguities in the Contempt Decree

¶ 20. The majority acknowledges that most of the decree is “directed towards considerations of criminal contempt” but holds that the “conclusions of law” portion of the decree stating the legal standard for civil contempt creates an ambiguity as to whether the chancellor intended to enter an order of criminal or civil contempt. As a result, the majority holds that this ambiguity must be reconsidered by the lower court as a prerequisite for review of the contempt on the merits. I respectfully disagree.

¶ 21. In their motion for contempt, the Waldens asked the court to hold the appellants in criminal contempt. Likewise, at the contempt hearing, the chancellor stated that criminal contempt was requested. I agree that the purpose of criminal contempt is to “vindicate the dignity and authority of the court.” Ill. Cent. R.R. Co. v. Winters, 815 So.2d 1168, 1179 (¶ 45) (Miss.2002) (quoting Premeaux v. Smith, 569 So.2d 681, 684 (Miss.1990)). I also agree that the “conclusions of law5’ portion of the contempt decree sets out some of the legal standards for civil contempt. However, I find this ambiguity insufficient to require dismissal.

¶ 22. As stated in Illinois Central Railroad Co., “[a] citation for criminal contempt is proper only when the contemnor has willfully, deliberately and contumaciously ignored the court.” Ill. Cent. R.R. Co., 815 So.2d at 1179 (¶45). The Wal-dens asked the court to impose criminal contempt both in the motion and at the hearing. Morris and Allen violated not only the temporary restraining order but also the preliminary injunction. In the “analysis” portion of the contempt decree, the chancellor noted that “[t]he testimony reveals that the [defendants have continued to engage in a pattern of intentional, willful behavior amounting to violations of the [cjourt’s [i]njunctive [ojrder.” In addition, the exact language of the chancellor’s order states that Morris and Allen are required to pay sanctions for “willfully, wantonly and contumaciously violating the [preliminary [injunction.” The very purpose of criminal contempt is to prohibit such obstinate behavior. The language in the motion for contempt, the contempt hearing and the decree show that this was the chancellor’s understanding as well. While the one portion of the chancellor’s decree that mentions civil contempt does lead to some confusion, I find that this does not create enough doubt to warrant dismissal of this appeal.

2. Reconsideration of the amount of the sanction

¶ 23. The majority also reasons that the fact the chancellor awarded criminal sanctions to a party lends support to the notion that the chancellor was operating under an incorrect legal standard. The majority holds that “[i]f the chancellor intended this to be criminal contempt,” the proper recipient of the sanction is the court. I agree. However, I do not agree with the majority that a change in payee mandates a reconsideration of the amount of the sanction.

¶ 24. The purpose of an order of criminal contempt would be to punish Morris and Allen not to compensate the Waldens. The fact that the chancellor mistakenly named the Waldens as payee does not prove that she was applying the incorrect legal standard. Therefore, I would affirm the judgment of criminal contempt of court but I would reverse and render to the extent that the sanctions for criminal contempt of court are to be paid to the Chancery Court of Holmes County.

3. Attorney Fees

¶ 25. Since I respectfully disagree with the majority with regards to dismissal of this appeal, I would review Morris and Allen’s claim that the award of attorney’s fees lacked specificity as to the amount. Uniform Chancery Court Rule 5.02 states: “Every Judgment shall be so drawn as to be definite and certain in all its terms and provisions.” The chancellor’s decree simply orders Morris and Allen to pay “reasonable attorney fees.” Such a decree is not “definite and certain.” The Waldens’ counsel even brought up the fact that he had not offered proof of his fees during the hearing. Instead of receiving evidence of the fees, or even taking judicial notice of typical fees in that area, the chancellor simply awarded “reasonable fees.” In determining just what is “reasonable attorney fees,” the chancellor should consider the relative financial ability of the parties, the skill and standing of the attorney employed, the nature of the case and novelty and difficulty of the questions at issue, as well as the degree of responsibility involved in the management of the cause, the time and labor required, the usual and customary charge in the community, and the preclusion of other employment by the attorney due to the acceptance of the ease. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). The chancellor’s ruling should have considered these factors in awarding attorney’s fees. I would therefore affirm the judgment awarding attorney’s fees, but reverse and remand for a determination of the correct amount.

THOMAS AND CHANDLER, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


source: Caselaw Access Project

author: KING, P.J.,

license: Public Domain

text:
    Perry L. ROACH, Appellant/Cross-Appellee, v. Arlene K. GOEBEL and Salesha K. Trussell, Appellees/Cross-Appellants.
    No. 2002-CA-00106-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      Patricia C. Champagne, Gulfport, attorney for appellant.
    Roland F. Samson, Gulfport, Sonia Lee Shurden, attorneys for appellees.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the Court.

¶ 1. Perry L. Roach filed a complaint to confirm tax titles and cancel clouds on certain property against Arlene K. Goebel and Salesha K. Trussell and various other defendants in the Chancery Court of Hancock County, Mississippi. The chancellor set aside the tax conveyance from the municipal clerk as well as the chancery clerk’s conveyance. Aggrieved by the chancellor’s ruling, Roach has appealed and raised the following issue which we quote verbatim:

Whether the chancery clerk met the statutory requirement of “further search and inquiry” under Miss.Code Ann. § 27-43-3 after the first attempt to notice the reputed landowner by mail was returned undelivered, thereby meeting the notice requirement and rendering the tax conveyance valid.

¶ 2. This Court affirms the chancellor’s decision.

¶ 3. Goebel and Trussell have also cross-appealed. Because we affirm on direct appeal, the cross-appeal is rendered moot.

FACTS

¶ 4. In 1993, Ms. Arlene Kosbab Goebel, as trustee under a declaration of trust for Richard E. Kosbab, received a warranty deed on the following property:

Lots 19 and 20, Square 800, Shoreline Park Subdivision, Unit 8, a subdivision of Hancock County, Mississippi, as per the official map or plat thereof on file and of record in the Office of the Chancery Clerk of [Hancock] County, Mississippi.

¶ 5. Under the provisions of that trust, Ms. Goebel was to hold the property until Mr. Kosbab’s daughter, Salesha Kosbab (Trussell) reached age twenty-five, at which time it was to be conveyed to her. The warranty deed noted that upon recor-dation it was to be returned to: Mrs. Goebel, 3950 Via Real Rd, Carpiuteria, CA 93013, 805-684-2861.

¶ 6. The street address of this property was 4147 Dolphin Street, Bay St. Louis, Mississippi.

¶ 7. Trussell resided full time on the property from 1993 to 1995. During the period from 1995 to 1997, Trussell attended the University of Southern Mississippi in Hattiesburg, but lived on the property during weekends, holidays, and spring and summer vacations.

¶ 8. In March 1995, Trussell filed an application for homestead exemption with the Hancock County Tax Assessors’ Office on this property. The application stated Trussell’s address as 4147 Dolphin Street, Bay St. Louis, Mississippi 39520.

¶ 9. In December 1995, Trussell paid the 1993 and 1994 county ad valorem taxes.

¶ 10. On August 26, 1996, the Tax Collector of the City of Bay St. Louis sold the property to Roach for unpaid ad valorem taxes owed to the City for 1995. That tax title would mature on August 26, 1998. When the property was not redeemed, the Municipal Clerk for the City of Bay St. Louis issued a tax deed to Roach. Charlene Rutledge, deputy municipal clerk of Bay St. Louis, testified that a notice of redemption dated June 15, 1998, was mailed to “Arlene K. Goebel, Trustee 3950 Via Real Road, Carpiuteria, CA 93013” and was returned “undeliverable.” She testified that she could not state whether any further effort was made to determine the name and/or address of the owner of this property, and provide them with notice of the imminent maturity of the tax title.

¶ 11. On August 26, 1996, the Hancock County Tax Collector sold the property to Roach for 1995 county ad valorem taxes, unless redeemed that sale would mature on August 26, 1998. The Hancock County Chancery Clerk sent by certified mail, return receipt requested, a notice of redemption dated April 15, 1998, to Arlene K. Goebel, Trustee at 3950 Via Real Rd, Car-piuteria, CA 93013, 805-684-2861. That notice was returned to the chancery clerk’s office, with the envelope marked “undeliverable.” The chancery clerk published the notice of redemption in the local newspaper. Deputy Chancery Clerk Janet Lad-ner signed an affidavit on July 9, 1998, which stated that the phone directories, land records, and tax rolls had been searched for the property owner’s most recent address. At trial, Ms. Ladner indicated that she did not perform the actual search but that Ms. Bonano, who was no longer employed with the chancery clerk’s office, had done so. Ladner also testified that the chancery clerk’s office did not request the Sheriff of Hancock County to serve a redemption notice upon the owner of this property.

¶ 12. Trussell lived in Jackson, Mississippi for approximately eight months starting in January 1998. However, during this period she rented the home on the property to Danny Collum. In September 1998, Trussell moved to Hattiesburg where she lived until October 2000, when she moved in with her mother at 10280 Whale Avenue, Bay St. Louis, Mississippi 39520.

¶ 13. The 1995 city and county taxes were not paid and on September 10, 1998, Roach received tax deeds from the Municipal Clerk of the City of Bay St. Louis and the Chancery Clerk of Hancock County, Mississippi.

¶ 14. When Trussell reached twenty-five years of age, Goebel conveyed the property to her by warranty deed which was dated March 24, 1999, and filed on March 29,1999.

¶ 15. On February 29, 2000, Roach filed a complaint to confirm tax title and cancel cloud upon five parcels of property, including “Lots 19 and 20, Square 800, Shoreline Park Subdivision, Unit 8, a subdivision of Hancock County, Mississippi, as per the official map or plat thereof on file and of record in the Office of the Chancery Clerk of Harrison County, Mississippi,” claimed by Trussell.

¶ 16. There was no contest as to three of the parcels and accordingly in August 2000, the chancellor entered judgment in favor of Roach on those three properties.

¶ 17. Goebel and Trussell contested Roach’s claim to “Lots 19 and 20, Square 800, Shoreline Park Subdivision, Unit 8, a subdivision of Hancock County, Mississippi,” alleging that neither Hancock County nor the City of Bay St. Louis followed proper notification procedures. The chancellor held that neither Hancock County nor the City of Bay St. Louis had complied with the statutory notice requirements, and therefore Roach’s deeds were void and ordered them cancelled. A judgment as to Trussell’s property was signed by the chancellor on July 5, 2001, and filed on July 11, 2001.

¶ 18. On July 11, 2001, Roach filed a motion to reconsider. On August 23, 2001, the chancellor denied Roach’s motion.

¶ 19. On September 21, 2001, Roach filed a motion for an extension of time to file notice of appeal, alleging that his attorney did not receive a copy of the order denying his motion to reconsider. This motion was granted on the same day. A notice of appeal was sent to the clerk within the allotted time of extension, but did not have the appropriate fees and was returned to Roach’s attorney on October 31, 2001. On November 6, 2001, another motion for an extension of time was filed because Roach’s attorney had failed to include the appropriate filing fees. On December 18, 2001, the chancellor entered a judgment regarding the final parcel involved in this cause of action. Roach filed his notice of appeal on January 18, 2002.

¶ 20. The chancellor’s voiding of the municipal tax deed has not been contested on appeal.

ISSUE AND ANALYSIS

Whether the chancery clerk met the statutory requirement of “further search and inquiry” under Mississippi Code Annotated Section 27-43-3 (Rev. 2000) after the first attempt to notice the reputed landowner by mail was returned undelivered, thereby meeting the notice requirement and rendering the tax conveyance valid.

¶ 21. The chancellor held the tax deed to Roach was void because the chan-eery clerk failed to comply with the statutory notice requirements related to the redemption of property sold at tax sales.

¶ 22. The statutory notice requirements regarding redemption of property sold at tax sales are covered by Mississippi Code Annotated Sections 27-43-1 and 27-43-3 (Rev.2000). These statutes cover notification as to resident property owners and nonresident property owners. Ms. Goebel, who was the record owner of the property lived out-of-state and, therefore, the chancery clerk was required to follow the notice requirements for a nonresident.

¶ 23. When property is sold for unpaid county or municipal ad valorem taxes, the property owner must be given notice of his right to redeem the property within 180 days of, but no less than 60 days prior to, the expiration of the redemption period. DeWeese Nelson Realty, Inc. v. Equity Services Co., 502 So.2d 310, 311 (Miss.1986). Because Ms. Goebel was a nonresident, the chancery clerk was required to do the following: (1) send notice to her by certified or registered mail of her right to redeem this property at her usual street address or in the absence of a street address her post office address; (2) since that notice was undeliverable as addressed, the clerk was then obligated to search and inquire further in an effort to find an accurate street or post office address for Ms. Goebel; that further search was required to be documented by an affidavit which specified the particular acts of search and inquiry and was to be maintained as part of the permanent record in the clerk’s office and noted on the tax sale records; and (3) if after further search and inquiry the clerk was still unable to determine an appropriate address for Ms. Goe-bel, he was required to file a second affidavit identifying the actions taken in seeking Ms. Goebel’s address and stating that he had been unsuccessful in his efforts to do so. That affidavit likewise was required to be maintained in the office records and noted on the tax sale records as well.

¶ 24. The chancery clerk sent to Ms. Goebel at 3950 Via Real Rd, Carpiuteria, CA 93013, 805-684-2861, by certified mail, return receipt requested, a redemption notice dated April 15, 1998. That notice was marked “undeliverable” and returned to the chancery clerk. The chancery clerk then caused to be published the notice of redemption in the Sea Coast Echo, a newspaper in general circulation in Hancock County. Janet Ladner, a deputy clerk in the Hancock County Chancery Clerk’s office, executed a July 9,1998 affidavit which claimed that phone directories, land records and tax rolls had been searched in an attempt to ascertain Ms. Goebel’s most recent address. At trial, Ms. Ladner testified that despite her affidavit, she had no personal knowledge of any further efforts to locate an appropriate address for Ms. Goebel since those actions were supposedly undertaken by Ms. Bonano, who was no longer employed in the clerk’s office.

¶ 25. The Hancock County Chancery Clerk’s office failed to comply with the statutory notice requirements. There is no affidavit from any person who actually undertook further search and inquiry to determine an appropriate address for Ms. Goebel. As noted earlier, there was an affidavit from Ms. Ladner in which it was claimed that Ms. Ladner personally examined the phone directories, land records and tax rolls. However, this affidavit was repudiated by Ms. Ladner at trial. In addition to the testimony of Ms. Ladner repudiating her affidavit, the record contains other evidence indicative of the failure of the Hancock County Chancery Clerk’s office to conduct further search and inquiry in an effort to obtain an appropriate address to notify Ms. Goebel or someone of the imminent maturity of the tax title and the need to redeem the property for the 1995 taxes.

¶ 26. Had the land and tax records been searched as alleged in Ms. Ladner’s affidavit, a diligent search should have indicated that on March 31, 1995, Trussell filed an application for homestead exemption. That application which was introduced into evidence as exhibit #4 shows Ms. Trussell as residing at 4147 Dolphin Street, Bay St. Louis, Mississippi, which is the actual street address of this property. Had further search and inquiry been conducted, the clerk, using the address from the homestead application, might possibly have given notice under the resident provisions to Ms. Trussell.

¶ 27. Under the resident notice requirements, the clerk is required to: (1) issue the redemption notice to the sheriff of the county of the owner’s residence, who is then required to effect personal notice and return his proof of service to the chancery clerk’s office; (2) mail a copy of the redemption notice to the owner’s street address or in the absence of a street address, her post office address and note such action on the tax sales record; (3) publish the name and address of the property owner and the legal description of the property in a local newspaper if available, otherwise publish in a newspaper having general circulation in the county where the property is located; publication should be done at least forty-five days prior to the expiration of the redemption period; and (4) if the notice by mail is returned “undeliverable” and personal notice has been returned by the sheriff as “not found,” then the clerk shall make further search and inquiry to determine the appropriate address. If an appropriate address is unable to be located, then the clerk shall file an affidavit following the same procedures noted for nonresidents.

¶ 28. The only resident notice requirement undertaken by the clerk was to publish notice in the Sea Coast Echo newspaper.

¶ 29. Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners. Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991). Any deviation from the statutorily mandated procedure renders the sale void. Hart v. Catoe, 390 So.2d 1001, 1003 (Miss.1980). In the present case, the chancellor found significant departures from the statutorily mandated procedure, and accordingly voided the sale and can-celled the tax deed.

¶ 30. There is substantial evidence in the record which supports the chancellor’s decision. Where the chancellor’s decision correctly applied the law and is supported by substantial evidence, we are obligated to affirm that decision. Carter v. Carter, 735 So.2d 1109(¶ 18) (Miss.Ct.App.1999).

¶ 31. This Court’s discussion of possible notice to Trussell under the resident provisions is not intended as a suggestion that such notice would have been legally effective. It is instead intended to merely indicate that no further inquiry was undertaken.

¶ 32. The redemption statutes, Mississippi Code Annotated Sections 27-43-1 and 27-43-5 (Rev.2000), mandate that notice be given to the record owner and any lien holder of record.

¶ 33. Homestead exemption, pursuant to Mississippi Code Annotated Section 27-33-3 (Rev.2000), is only available to residents of this State, who own and reside on the property claimed for homestead purposes. Had the Hancock County Chancery Clerk done further inquiry as mandated by law, he would have seen that Trussell, by her application for homestead exemption, claimed an ownership interest in this property.

¶ 34. THE JUDGMENT OF THE HANCOCK COUNTY CHANCERY COURT IS AFFIRMED AS TO DIRECT APPEAL. THE CROSS-APPEAL IS RENDERED MOOT. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


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

text:
    Nellie Lou SMITH, Appellant, v. John William SMITH, Appellee.
    No. 2002-CA-01657-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.

      Deedy Boland, Tupelo, attorney for appellant.
    C. Michael Malski, attorney for appellee.
   MYERS, J.,

for the Court:

¶ 1. Nellie Lou Smith was granted a divorce from her husband, John William Smith, on the ground of desertion. She disagrees with the chancellor’s equitable distribution of marital property and his decision regarding alimony. She appeals to this Court, stating the following issues for our consideration:

I. WHETHER THE CHANCELLOR FAILED TO MAKE AN EQUITABLE DIVISION OF THE MARITAL ESTATE BY FAILING TO PROPERLY CLASSIFY CERTAIN ASSETS, FAILING TO PROPERLY VALUE CERTAIN ASSETS, AND FAILING TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATING TO APPLICABLE FERGUSON FACTORS.
II. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD PERIODIC ALIMONY TO NELLIE SMITH.
III. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD ATTORNEY’S FEES TO NELLIE SMITH.

Facts and Procedural History

¶ 2. John William Smith filed for divorce from Nellie Lou Smith on October 22, 1997. He cited grounds of habitual cruel and inhuman treatment and adultery, or in the alternative, irreconcilable differences. Nellie Smith filed a counterclaim for divorce based on habitual cruel and inhuman treatment, abandonment and adultery, or in the alternative, irreconcilable differences.

¶ 3. The chancellor found no basis for John to be granted a divorce for either habitual cruel and inhuman treatment or adultery. John’s claim was denied. Nellie’s divorce was granted on the ground of willful, continued, and obstinate abandonment for one year.

¶ 4. The chancellor listed the following items of property as in dispute: the marital home, several pieces of real estate, and several vehicles. Additionally, the Smiths had an IRA worth approximately $44,484, a thrift plan worth $20,646, a retirement plan that paid John $253.80 a month, and a credit union account worth $101.

¶ 5. Nellie was awarded the home and the 18.63 acres on which it sat, the 63/100 acre used to gain access to the homestead, a 55 acre tract, 2 acres purchased at a sheriffs sale, a 50% interest in the two retirement accounts, and a 1987 Toyota Supra. John received numerous items of personal property; 1990 Dodge truck, a 1990 Dodge van, a 1992 GMC truck, a 50% interest in the retirement plans, and the $253.80 he received a month from his retirement accounts.

¶ 6. The chancellor denied alimony to Nellie as well as attorney’s fees.

I WHETHER THE CHANCELLOR FAILED TO MAKE AN EQUITABLE DIVISION OF THE MARITAL ESTATE BY FAILING TO PROPERLY CLASSIFY CERTAIN ASSETS, FAILING TO PROPERLY VALUE CERTAIN ASSETS, AND FAILING TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATING TO APPLICABLE FERGUSON FACTORS.

¶ 7-. The standard of review of all the issues presented is abuse of discretion. The chancellor is granted wide discretion in deciding domestic relations matters and we will reverse his decision only when his decision is shown to be manifestly wrong, clearly erroneous, or that he applied an incorrect legal standard. Barton v. Barton, 790 So.2d 169, 175(¶ 17) (Miss.2001) (citing Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)).

¶ 8. In dividing the property of the divorcing couple, the chancellor must first classify their assets and liabilities as belonging to the marriage, to the husband, or to the wife. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). Once this is done, the chancellor must look to the factors set out by the supreme court in Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). The Ferguson factors are used to determine how to divide the marital assets between the divorcing couple.

¶ 9. The chancellor listed the assets of the Smiths according to who held legal title to them. He did not identify them as assets of the husband, of the wife, or of the marriage. The chancellor did then distribute the assets, assigning some that were titled in John’s name, for example, to Nellie. However, without knowing what was marital property and what was the separate property of the spouses, we cannot fairly evaluate the equitable distribution. We therefore hold that the chancellor abused his discretion in classifying and distributing the assets of the marital estate.

II. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD PERIODIC ALIMONY TO NELLIE SMITH.

¶ 10. The factors to be considered when deciding whether periodic alimony is appropriate are: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal support order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; or (12) any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support. Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). These factors are used to determine whether alimony is proper in a case. The chancellor did not use these factors, but instead used the Hemsley factors, which are used to determine if alimony is reasonable. Hemsley, 639 So.2d at 912-13. Since he applied the wrong legal standard, the determination of alimony is reversed and remanded.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO AWARD ATTORNEY’S FEES TO NELLIE SMITH.

¶ 11. Since we have already reversed and remanded for the other two issues in this case, we also reverse and remand for a determination of the issue of attorney’s fees. The distribution of marital property and receipt of alimony, if any, will have a role in the determination of whether Nellie should receive attorney’s fees from John. Lauro v. Lauro, 847 So.2d 843, 850(¶ 18) (Miss.2003).

¶ 12. THE JUDGMENT OF THE CHANCERY COURT OF MONROE COUNTY IS AFFIRMED AS TO THE DIVORCE AND REVERSED AND REMANDED AS TO ALIMONY, ATTORNEY’S FEES AND DISTRIBUTION OF MARITAL PROPERTY. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, P.J., BRIDGES, THOMAS, LEE, AND CHANDLER, JJ., CONCUR.

SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., BRIDGES, LEE, IRVING, AND GRIFFIS, JJ.

SOUTHWICK, P.J.,

Concurring:

¶ 13. The majority reverses the alimony award because the chancellor pulled from his file the wrong set of factors to use. It is clear that the chancellor applied factors identified by the Supreme Court for determining the amount of alimony, but it was not the latest iteration of those considerations. I do not believe that any error occurred, as there is too little difference in the lists.

¶ 14. The chancellor considered nine factors set out in a 1994 precedent for making alimony determinations. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994). That case is better known for providing rules regarding marital property, but it also contains a list of considerations for the award of alimony. I do not understand the case to mean what the majority states, that Hemsley determines the reasonableness of the alimony award while the favored Armstrong case is for whether any alimony should be awarded at all. A chancellor determines both matters together, not in stages. Armstrong itself addresses the relationship between the cases, as I now explain.

¶ 15. The Supreme Court in Armstrong took the factors from a case that it decided the previous year. Armstrong v. Armstrong, 618 So.2d 1278, 1281 (Miss.1993), quoting Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992). The Armstrong court also cited the 1955 case from which Hemsley would take its nine factors. Armstrong, 618 So.2d at 1281, citing Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955). In a footnote to the Brabham citation, the court in Armstrong discussed the relationship between the different lists of needed considerations.

Hammonds revised and added factors for consideration. See Gammage v. Gammage, 599 So.2d 569, 573 (Miss.1992) and Cleveland v. Cleveland, 600 So.2d 193, 197 (Miss.1992), however, where the Brabham factors were again approved. Also see White v. White, 557 So.2d 480, 483 (Miss.1989) and Cheatham v. Cheatham, 537 So.2d 435, 438 (Miss.1988) for factors considered in awarding lump sum alimony.

Armstrong, 618 So.2d at 1281 n.1.

¶ 16. Hemsley was decided a year after Armstrong, and it referred to Brabham for its authority. Hemsley, 639 So.2d at 913. I accept that the twelve step program enumerated in Hammonds and Armstrong is now the recommended method for deciding alimony. Still, reversal should not flow solely from nine steps being used.

¶ 17. The majority quotes the twelve Hammonds-Armstrong considerations. I quote the nine Brabham-Hemsley ones: “(1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile, and (9) such other facts and cir-eumstances bearing on the subject that might be shown by the evidence.” Hemsley, 639 So.2d at 912-13, quoting Brabham, 84 So.2d at 153 (line breaks removed).

¶ 18. I do not find a reversible error measure of difference between the lists. Both have a catch-all provision that other relevant facts should be considered. Neither list therefore is exclusive. These factors are intended to guide the chancellors in making decisions and assist appellate courts in their review function. Our holding is perilously close to making the determinations little more than rituals, with af-firmance dependent on the correct chant being intoned by the trial judge. The Supreme Court through the factors for alimony and for other issues in divorce suits has sought to bring a formal system to the determinations. We should avoid, though, making the means dominate over the ends. The factors in each list are representative of what should be considered. This chancellor considered the proper broad issues, used a set of factors approved by the Supreme Court, and awarded a reasonable amount of alimony.

¶ 19. I nonetheless agree with setting the alimony determination aside since we are also, properly, setting aside the distribution of marital property. Changes in the allocation of property may alter the need for or the amount of alimony. Therefore even if the correct incantation had been performed, we should set the alimony award aside in order that all interrelated financial issues may be reconsidered.

McMILLIN, C.J., BRIDGES, LEE, IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.


author: IRVING, J., GRIFFIS, J.,

text:
    Curtis RILEY, Appellant, v. TOWN OF LAMBERT, Mississippi, Appellee.
    No. 2002-CA-01006-COA.
    Court of Appeals of Mississippi.
    Oct. 7, 2003.
    Azki Shah, Clarksdale, attorney for appellant.

      Jimmy L. Miller, Marks, attorney for appellee.
   IRVING, J.,

for the Court:

¶ 1. The Circuit Court of Quitman County dismissed, for want of prosecution, Curtis Riley’s appeal of his misdemeanor convictions in the Municipal Court of the Town of Lambert. Following a denial of his motion to reconsider the dismissal, Riley filed this appeal in which he alleges that the trial court erred in dismissing the appeal because it was dismissed via a procedure for dismissal of stale civil, not criminal cases.

¶ 2. We agree with Riley that the motion leading to the dismissal was improperly filed pursuant to rules of procedure which provide a procedural framework for the dismissal of stale civil cases only. Notwithstanding this procedural blip, we find that there is a legitimate basis for the dismissal of the appeal. Therefore, we affirm the trial court’s dismissal, although for a different reason.

FACTS

¶ 3. Curtis Riley was convicted on February 23, 1998, in the Municipal Court of the Town of Lambert, of contributing to the delinquency of a minor and allowing minors into his billiard hall lounge. On March 23, 1998, Riley filed, in the Circuit Court of Quitman County, a notice of appeal from his misdemeanor convictions in the municipal court. On April 21, 1998, almost thirty days past the thirty-day appeal time, he filed a cost bond. He did nothing thereafter to prosecute the appeal, and nothing occurred in the appeal until April 2000, when the Circuit Clerk of Quit-man County, acting pursuant to Rules 5 and 41 of the Mississippi Rules of Civil Procedure, filed a motion to dismiss the appeal for lack of prosecution.

¶ 4. According to the record, the clerk served the motion on Riley’s attorney on April 6, 2000. The motion advised Riley that the case would be dismissed “unless within thirty days of the date of [the service of the motion], action of record is taken, or written application is made to the Court and good cause shown why such case should not be dismissed.” The trial court did not sign the order of dismissal until January 8, 2001. The record does not reflect that Riley took any action in the interim. On February 6, 2002, approximately thirteen months after the order of dismissal was entered, Riley filed a motion to set aside the dismissal. In his motion, Riley argued that a defendant in a criminal case is under no obligation to set his case for trial and that the trial court never set a date for trial. This motion, as well as a motion to reconsider, was denied, leading to this appeal.

ANALYSIS OF THE ISSUE AND DISCUSSION OF THE LAW

¶ 5. Riley argues that the trial court erred in granting the clerk’s motion because the clerk had no authority to file such a motion in a criminal case. We agree with Riley that Rules 5 and 41 of the Mississippi Rules of Civil Procedure, which were the procedural foundation upon which the clerk operated, apply to civil and not criminal cases. However, we disagree that this procedural blunder means that the appeal should be reinstated.

¶ 6. As we have already noted, Riley filed a notice of appeal on March 23, 1998, from the judgments of conviction which were entered on February 23, 1998, but no cost bond was filed until April 21, 1998, almost two months following the date of the judgments.

¶ 7. Rule 12.02 of the Uniform Circuit and County Court Rules states in pertinent part that:

Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal and cost bond within 30 days of such judgment with the clerk of the circuit court having jurisdiction. The written notice of appeal and posting cost bond perfects the appeal. The failure to post any bond required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs.

URCCC 12.02(A) (emphasis added). Subsection (B) of Rule 12.02 requires the posting of an appearance bond. The applicable portion of this subsection provides:

Unless excused by the making of an affidavit as specified in § 99-35-7 of the Mississippi Code of 1972, bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, or of cash shall be given and conditioned on appearance before county or circuit court from day to day and term to term until the appeal is finally determined or dismissed.

URCCC 12.02(B).

¶ 8. A review of the record reveals that, in addition to the tardy filing of the cost bond, Riley never filed an appearance bond. A document styled as a supersede-as bond is found among the court papers, but that document is not approved by any official associated with either the circuit or municipal court. Moreover, this bond was also filed late, as it was also filed on April 21, 1998, approximately thirty days past the appeal period. Further, the contents of the document indicate that it is really a cost bond, not an appearance bond.

¶ 9. On these facts, two conclusions are inescapable. First, Riley’s appeal was not timely perfected, for the rule provides that the appeal is not perfected until two things occur: the filing of a written notice of appeal and a cost bond. Both of these filings are to be done within thirty days of the judgment from which the appeal is taken. Here, the written notice of appeal was filed within the thirty days permitted by the rule, but the cost bond was not filed until approximately sixty days after the municipal court judgment was entered. Therefore, it was not timely. Second, it is not debatable that an appearance bond was never filed. The rule provides that the failure to post any bond required by this rule shall be grounds for the court, on its own motion or by motion of another to dismiss the appeal with prejudice.

¶ 10. Therefore, since Riley failed to post one of the requisite bonds, the trial court, in its discretion, was empowered to dismiss the appeal on its own motion or by the motion of another. Here it was the clerk of the court, traveling in a civil procedure vehicle and invoking a different basis than that provided for in Rule 12.02, who asked that the appeal be dismissed. The trial court, embracing the message contained in the clerk’s invocation, utilized its discretion and dismissed the appeal. In deciding the appropriateness vel non of the trial judge’s action, we look not at the identity of the messenger or the type of procedural vehicle employed by the messenger to deliver the message, but at the totality of the factual circumstances to ascertain whether there is any legal basis which may properly justify the action taken by the trial judge in response to the message.

¶ 11. It is elemental law that appellate courts are authorized to affirm the judgment of the trial court on a different basis than that employed by the trial court. See Askew v. Askew, 699 So.2d 515, 519 n. 3 (Miss.1997); Stewart v. Walls, 534 So.2d 1033, 1035 (Miss.1988). We find that, based on the facts of this case, the trial judge’s decision to dismiss the appeal is one that reposes within the discretion granted him under Rule 12.02. He could have, and should have, dismissed the appeal because of Riley’s failure to comply with the requirement that both a cost and appearance bond be posted. Since Riley failed to post an appearance bond and faded to timely post a cost bond, we see no reason to conclude that the trial court abused its discretion in dismissing the appeal.

¶ 12. The dissent, citing Dixon v. State, 528 So.2d 832 (Miss.1988), Mitchell v. Parker, 804 So.2d 1066, 1072 (Miss.Ct.App.2001), and subsection “C” of Rule 12.02, argues that affirming the trial judge’s dismissal of this case runs afoul of subsection “C”. Also, the dissent, arguing that Riley had no obligation to bring himself to trial, blames the Town of Lambert for doing nothing following Riley’s filing of the notice of appeal.

¶ 13. Two points should be made regarding the dissent’s argument. First, the dissent apparently does not understand the nature of the appearance bond which Riley had a responsibility to file but failed to do. The appearance bond contains an initial date for appearance in court. Usually that date is the first day of the term of court following the posting of the bond. The appellant is required to appear in court on that date to await further orders of the court regarding the disposition of his appeal. Second, as we demonstrate in the remainder of this opinion, none of the authorities cited support the dissent’s view of the issue or contradict our holding. But before we address the matter of the cited authorities, we make some observations about some factual representations made by the dissent which are not supported by the record in this cause.

¶ 14. The dissent represents as a fact that on March 23,1998, Riley filed a notice of appeal and paid a filing fee to the Circuit Clerk of Quitman County. The record does not support this representation. The record reveals that a notice of appeal was filed on that date, but does not reveal that any fee or any money was paid. The index to the docket index also reflects that the notice of appeal was filed on March 23, 1998, but it too does not reflect a payment of any fees or any money on that date. Also, the dissent, while not representing as a fact that Riley presented the cost bond to the municipal judge for approval on March 14, 1998, embraces Riley’s argument that the municipal judge was the reason for the delay in posting the cost bond. Again, nothing in the record, which is the official instrument upon which we must rely for our facts, supports Riley’s argument in this regard. The fact that he and his sureties may have signed the bond on March 14, 1998, does not in the least prove that it was also presented to the judge on that day for approval. Even so, it was Riley’s responsibility to get his bond timely approved. We now turn to a discussion of the authorities cited by the dissent.

¶ 15. First, the dissent quotes only a portion of subsection “C” and gives an interpretation of this subsection that is totally out of context. We quote subsection “C” in its totality:

Upon the filing of the notice of appeal with the clerk, the prior judgment of conviction shall be stayed by the higher court upon receipt of the bonds required by this rule or excuse therefore.
The appeal shall be a trial de novo. In appeals from justice or municipal court when the maximum possible sentence is six months or less, the case may be tried without a jury at the court’s discretion. The record certified to the court on appeal from the lower court is competent evidence. However, no motions may be allowed which deprive the accused of the right to a trial on the merits. Amendments will be liberally allowed so as to bring the merits of a case fairly to trial.

¶ 16. Apparently, the dissent interprets the next to the last sentence in subsection “C” to mean that even if a defendant fails to perfect his appeal, he is nevertheless entitled to a trial de novo on the merits. This is flawed reasoning. It is obvious that the last sentence does not come into play until such time as there is a perfected appeal. The subsection gives an appellant, who has perfected an appeal, the right to a trial de novo, and no motion shall be allowed which defeats that right.

¶ 17. Dixon is clearly distinguishable on the facts. In Dixon, the appellant, appealing from a conviction in the Justice Court of Monroe County, signed and filed an appearance bond, but the bond did not contain the signatures of any sureties. Dixon, 528 So.2d at 832. The bond was approved by the justice court judge. Id. After the time for appealing had run, the State moved to dismiss the appeal because the bond did not comport with the requirements of law. Id. The trial court granted the State’s motion. Id. On appeal, the Mississippi Supreme Court reversed, holding that Dixon should have been allowed to amend his bond. Id.

¶ 18. It requires no exercise in legal gymnastics to realize that there is a vast difference between a case where the bond is timely-executed, approved, and filed but is deficient and a case where the cost bond is filed approximately thirty days past the appeal time and the appearance bond is not filed at all. In the latter case, there is no bond to amend because none of any sort was ever filed during the appeal time.

¶ 19. We do not take issue with the dissent’s interpretation of our holding in Mitchell. In fact Mitchell affirms that both a cost bond and an appearance bond are required in appeals from municipal courts. Mitchell, 804 So.2d at 1070 (¶¶ 16-17). If the bonds are not filed, it goes without saying they cannot be amended in accordance with the holding in Dixon. We know of no case which permits the filing of the required bonds past the thirty-day appeal time. Therefore, we affirm.

¶ 20. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY DISMISSING THE APPEAL IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

GRIFFIS, J.,

DISSENTING:

¶ 21. The majority disregards the basis for the circuit court’s dismissal and affirms on a completely different basis, not considered by the circuit court. The majority reasons that the appeal was never perfected because Riley failed to post an appearance bond and failed to timely post a cost bond. I disagree, and I am of the opinion that the trial court’s dismissal and the majority’s reasoning for affirmance is in error. Therefore, I dissent.

¶ 22. I agree with the majority on the principal issue before this Court. The circuit clerk lacked the authority to file and pursue a motion to dismiss a pending criminal case. The Mississippi Rules of Civil Procedure not govern criminal cases. Civil rules of procedure may not provide the legal basis for a motion to dismiss a criminal action. Simply stated, Rules 5 and 41 of the Mississippi Rules of Civil Procedure do not provide the circuit judge a legal basis or the authority to dismiss a criminal case.

¶ 23. In affirming the circuit judge, the majority relies on the Town of Lambert’s alternative argument, made here for the first time on appeal. The Town argues that the case was correctly dismissed because Riley failed to post an appearance bond and failed to timely post a cost bond, as required by Rule 12.02 of the Uniform Circuit and County Court Rules. I am of the opinion that Rule 12.02 does not support the majority’s decision.

¶ 24. The majority correctly states that the decision to dismiss a criminal case for failure to comply with Rule 12.02 is a “discretionary” decision vested solely in the circuit judge. Uniform Rules of Circuit and County Court 12.02(a) authorizes, but does not require, the circuit court to dismiss an appeal for failure to file the appropriate bonds in a timely manner. Uniform Rules of Circuit and County Court 12.02, in pertinent part, provides:

A.Notice and Filing. Any person adjudged guilty of a criminal offense by a justice or municipal court may appeal, to county court or, if there is no county court having jurisdiction, then to circuit court by filing simultaneously a written notice of appeal and cost bond within 30 days of such judgment with the clerk of the circuit court having jurisdiction. This written notice of appeal and posting cost bond perfects the appeal. The failure to post any bond required by this rule shall be grounds for the court, on its own motion or by motion of another, to dismiss the appeal with prejudice and with costs. The clerk of the court shall not accept, file and docket the written notice of appeal without the accompanying cost bond, unless the court has allowed the defendant to proceed in forma pauperis.
B. Bonds. Unless excused by the making of an affidavit as specified in §§ 99-35-7 of the Mississippi Code of 1972, bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, or of cash shall be given and conditioned on appearance before the county or circuit court from day to day and term to term until the appeal is finally determined or dismissed. If the defendant fails to appear at the time and place set by the court, the court may dismiss the appeal with prejudice and with costs.
Unless excused by the making of an affidavit of poverty as specified above, every defendant who appeals under this rule shall post a bond with sufficient resident sureties (or licensed guaranty companies), to be approved by the circuit clerk, or cash for all estimated court costs, incurred both in the appellate and lower courts. The amount of such bond shall be determined by the judge of the lower court payable to the state in an amount of not less than One Hundred Dollars ($100) nor more than One Thousand Dollars ($1000).
C. Proceedings. Upon the filing of the notice of appeal with the clerk, the prior judgment of conviction shall be stayed by the higher court upon receipt of the bonds required by this rule or excuse therefore.... However, no motions may be allowed which deprive the accused of the right to a trial on the merits. Amendments will be liberally allowed so as to bring the merits of a case fairly to trial.

(emphasis added).

¶ 25. The majority relies on Rule 12.02(A) and (B) to conclude that the case was correctly dismissed because Riley failed to properly perfect the appeal because he did not post an appearance bond and failed to timely post a cost bond. Rule 12.02(A) provides that the “written notice of appeal and posting cost bond perfects the appeal.” On March 23, 1998, Riley filed a notice of appeal with the circuit clerk. Along with the notice, Riley paid the circuit clerk a filing fee of $95.00. The notice was filed stamped and accepted by the clerk.

¶ 26. On April 21, 1998, Riley filed two other pleadings: (a) a “Cost Bond in a Appeal from Municipal Court to Circuit Court,” and (b) a “Supersedeas Bond in a Criminal Appeal from Municipal Court to Circuit Court.” The circuit clerk again accepted, filed and stamped each of these pleadings.

¶27. I will first address whether the notice of appeal was perfected. Rule 12.02(A) provides that “[t]he clerk of the court shall not accept, file and docket the written notice of appeal without the accompanying cost bond, unless the court has allowed the defendant to proceed in forma pauperis.” Here, the clerk accepted the notice of appeal, the $95 fifing fee, and the cost bond. Accordingly, upon acceptance, the clerk waived any objection to the cost bond and such may not now be used to deprive Riley his day in court.

¶ 28. Next, the majority disregards the cost bond that was filed, finding that it was tardy. The fact is that Riley prepared and filed a pleading styled “Cost Bond in a Appeal from Municipal Court to Circuit Court,” which was signed by the defendant and a surety on March 14, 1998. Riley argues that it was submitted to the municipal judge on March 14, 1998, but the municipal judge held it only to approve it thirty days later, on April 14,1998. Again, the circuit clerk accepted and filed the cost bond, which the majority argues should have been rejected under Rule 12.02(A). Riley argues that the untimeliness of the cost bond should be excused because the late fifing of the bond was solely due to the delay of the municipal court judge. On the face of the document, this appears to be a valid and persuasive argument. Indeed, the proper forum for this consideration is before the circuit judge. This is exactly the issue that the circuit judge should consider and use discretion in deciding whether it is sufficient rationale to excuse a tardy cost bond. The majority and I agree that Rule 12.02 allows the circuit judge that discretion.

¶ 29. The majority also contends that no appearance bond was “approved by any official associated with either the circuit or municipal court.” Riley did file a pleading styled “Supersedeas Bond in a Criminal Appeal from Municipal Court to Circuit Court.” This pleading is undated, but it was filed and accepted by the clerk on April 23, 1998, along with the cost bond. Riley again argues that this bond was untimely due to the delay of the municipal court judge. We also note that the record includes a notice of assignment of the appeal to Judge Kenneth Thomas, which was filed on September 23, 1998. Judge Thomas could not have considered the appearance bond until after he was assigned to the case, five months after the appearance bond was filed. Again, this argument appears valid and persuasive. This too is the type of issue that should be considered by and within the circuit court’s discretion.

¶ 30. I disagree with the majority because I am of the opinion that Uniform Rules of Circuit and County Court 12.02(C) guides our decision and the use of discretion by the circuit judge. Subsection (C) essentially provides that a defect in any bond, required under subsection (B), should be considered by the circuit court pursuant to a motion. A deficiency or defect in the bond does not automatically require dismissal. Indeed, Rule 12.02(C) allows no motion that would “deprive the accused of the right to a trial on the merits.” The majority’s action here will simply violate Rule 12.02(C) because it will deprive Riley of his right to a trial on the merits. Rule 12.02(C) goes even further; liberal amendments are specifically allowed as necessary “to bring the merits of a case fairly to trial.”

¶ 31. This issue was decided in Dixon v. State, 528 So.2d 832 (Miss.1988). I quote the entire opinion:

Cliff Dixon was convicted for petit larceny in justice court in Monroe County and fined $50 on June 10,1983. He duly noticed his appeal to the circuit court and filed an appearance bond in the amount of $250. Dixon signed the bond, but no signatures of sureties appear on the bond. The bond was approved, however, by the justice court judge.
After appeal time had run, the State moved to dismiss the appeal for lack of jurisdiction, in that the bond did not comport with the requirements of §§ 99-35-3, Miss.Code Ann. (1972). The circuit judge granted the State’s motion, denying an ore tenus motion by Dixon to amend the bond. Aggrieved, Dixon appeals, arguing that the lower court erred in dismissing his bond. We agree, and reverse the decision of the circuit court to deny Dixon time to amend his bond. Here, the bond, though imperfect, was filed and approved by the justice court judge. The circuit court, upon Dixon’s request, should have granted him a hearing and an opportunity to correct any deficiencies. See, Smith v. Boykin, 61 Miss. 110 (1883).
We reverse and remand to the circuit court for reinstatement of Dixon’s appeal to that court. Dixon is granted thirty (30) days from the date of this opinion in which to tender proper bond, failing which his appeal will be properly dismissed.

Id. at 832-33. The majority attempts to distinguish Dixon. However, Dixon is no different than this appeal. There was a deficiency in the bond, and the supreme court reversed and remanded to allow an “opportunity to correct any deficiencies.” Id. at 833.

¶ 32. Likewise, in Mitchell v. Parker, 804 So.2d 1066, 1072 (Miss.Ct.App.2001), we cited Dixon for the proposition that “a criminal defendant may file a motion with the circuit court on appeal from a justice or municipal court to correct deficiencies in his appearance bond.” Yet here, we will usurp the discretionary decision of the circuit judge and deny a criminal defendant the opportunity to file a motion to correct a deficiency in his appearance bond.

¶ 33. For almost three years, the Town of Lambert failed to timely prosecute this appeal. The Town, in its role as the prosecutor of this criminal appeal, took absolutely no action to challenge any deficiency or defect in the cost or appearance bond or to bring this case to a speedy trial. Now, the Town has convinced this Court to disregard the Town’s failure to timely prosecute this action and thereby deprive Riley of his right to a fair trial on the merits. As the supreme court held in Dixon and we held in Mitchell, Riley should have been allowed an opportunity to correct any deficiency or defect in the bond by the trial court.

¶ 34. The majority finds my analysis to be an “exercise in legal gymnastics.” I see it as an exercise in logic. Dixon and Mitchell stand for the proposition that a criminal defendant, in justice or municipal court appeals, should have an opportunity to correct a deficiency in any required bond. Rule 12.02(C) of the Uniform Circuit and County Court Rules provides, in no uncertain terms, that Mississippi law on appeals from justice or municipal courts, must be interpreted to allow liberal amendments and may not deprive a criminal defendant of a trial on the merits. Instead, the majority here takes a hard line approach and usurps the discretionary decision of the circuit court. Appeals from justice and municipal courts require a difficult and awkward procedure, as compared to appeals from county, circuit or chancery courts, and the involvement of several different players. The last sentence of Rule 12.02 is similar to Rule 15 of the Mississippi Rules of Civil Procedure. Liberal amendments are to be allowed. Trials on the merits are preferred, and substance prevails over form. Here, liberal amendments require that Riley be given an opportunity to correct the deficiencies and the circuit court has the discretion to decide whether the appeal may proceed to a trial on the merits.

¶ 35. This Court should reverse and remand this case to the circuit court for further proceedings consistent herewith.

McMILLIN, C.J. AND SOUTHWICK, P.J., JOIN THIS SEPARATE OPINION.

      . Riley argues in his appellate brief that he paid a filing fee of $95. Since the payment is not reflected among the clerk papers nor in the index of the docket, a bill of particulars should have been obtained in order to place that fact before us. It is well-settled law that we do not decide cases based upon unsupported representations made by the parties in their briefs. See Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989). Riley had a responsibility to present an appellate record which is sufficient to support his allegations of error. Queen v. Queen, 551 So.2d 197, 199 (Miss.1989).


author: McMILLIN, C.J.,

text:
    C.K. GARNER, Appellant, v. STATE of MISSISSIPPI, Appellee.
    No. 2002-KA-00391-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      George T. Kelly, Marie Wilson, attorneys for appellant.
    Office of the Attorney General by: Billy Gore, attorney for appellee.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   McMILLIN, C.J.,

for the court.

¶ 1. C.K. Garner, having been convicted in Sunflower County Circuit Court of the armed robbery of Ora Smith, has appealed that conviction to this Court. The appeal presents the following issues: (a) whether the trial court erred in excluding evidence of the acquittal of Garner’s co-indictee in an earlier trial, (b) whether the trial court erred in refusing to suppress the victim’s in-court identification of the defendant as her assailant because it was based on an impermissibly suggestive show-up, (c) whether the trial court should have allowed a pre-trial lineup on the defendant’s motion, and (d) whether the indictment was fatally defective for failure to properly charge venue. Garner also makes an attack on the State’s evidence, although it is unclear whether he contends that the evidence was insufficient as a matter of law to sustain a guilty verdict or that the verdict was against the weight of the evidence. Finally, Garner suggests the need to overturn his conviction based on the cumulative weight of the various errors alleged in his appeal.

¶ 2. We find none of Garner’s issues to have merit and, as a result, affirm his conviction and resulting judgment of sentence.

I.

Facts

¶ 3. Smith testified to being accosted in the parking lot of a grocery store in Sunflower County by two black males. One struck her in the head with a hard object and the other threatened her with a firearm. The two assailants took from her a sum of money she had been carrying in her hand, after which they were picked up by a third individual driving an older model light blue vehicle.

¶ 4. Based on Smith’s description of her assailants and the get-away vehicle, Garner became a suspect and investigating officers brought him to the police station as a part of their inquiry. Smith was still in the station when Garner was brought in. Smith observed Garner in the hall and identified him as one of the robbers. He was subsequently required to remove an outer pair of camouflage-patterned trousers, which revealed that he was wearing a pair of black “windbreaker” shorts underneath. Smith had previously reported that her assailant had worn a pair of black windbreaker pants.

¶ 5. Gamer was indicted along with Frederick Washington for the crime. The trials of the two defendants were severed on Garner’s motion, and Washington was tried first. The record of that trial is not before us, but Garner contended at his trial that Smith testified for the prosecution at Washington’s trial and positively identified Washington as one of the two assailants. Further, according to Garner’s representations, Washington presented some form of alibi evidence in his defense and was ultimately acquitted by the jury in that case. The trial court refused to permit evidence of these facts to be presented to the jury trying Garner.

II.

Evidence of Washington’s Acquittal in a Separate Trial

¶ 6. The State successfully pursued a motion in limine to exclude any evidence that Washington had been acquitted in an earlier trial. On appeal, Gamer contends that the exclusion of this evidence was prejudicial to the defense since it tended to impeach the credibility of Smith’s claim that she could identify her assailants.

¶ 7. Evidence is generally admissible if it is relevant. M.R.E. 402. Mississippi’s Rules of Evidence set out the test for determining relevancy as follows:

“Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

M.R.E. 401.

¶ 8. The issue before this Court is whether a prior jury’s acquittal of a co-defendant, in the situation where an eyewitness testified to having identified that defendant as one of the perpetrators, is relevant to that witness’s ability to identify the defendant on trial. In the opposite situation, where the co-defendant was convicted, the law is clear.

The law is well settled in this state that where two or more persons are jointly indicted for the same offense but are separately tried, a judgment of conviction against one of them is not competent evidence on the trial of the other because such ... conviction is no evidence of the guilt of the party being tried.

Buckley v. State, 223 So.2d 524, 528 (Miss.1969). Certainly, had Washington been convicted in his separate trial, it would have been reversible error for the State to inject proof of that conviction in Garner’s trial in order to bolster its case. We see no principled reason to apply a different rule when, as here, the result of the earlier trial is favorable, rather than prejudicial, to the defense.

¶ 9. Garner attempts to narrow the purpose of the evidence to say that the verdict of acquittal bears at least indirectly on the victim’s credibility. The jury charged with trying a particular case, sitting as finder of fact, is the sole judge of the credibility of the witnesses presented at trial. Barnett v. State, 757 So.2d 323, 331(¶ 25) (Miss.Ct.App.2000) (citing Harris v. State, 527 So.2d 647, 649 (Miss.1988)). A jury trying a criminal case normally must sort through substantial amounts of evidence, some portions tending to indicate guilt and other portions tending to exonerate the defendant. In that situation, it would be essentially impossible to draw a direct link between the verdict of acquittal and any particular aspect of the proof. Even if it is assumed that the prior verdict speaks, in some indirect way, to that jury’s assessment of the victim’s credibility, it would be improper to afford the subsequent jury that information. To do that would, in effect, install the earlier jury as an advisory body offering its own view as to Smith’s credibility and would tend to usurp, or at the very least, improperly influence the deliberations of the jury on issues that are solely within the province of the finders of fact. The trial court, did not err in excluding this evidence.

III.

Show-up Identification and In-court Identification

¶ 10. Garner sought to suppress any identification of him by the victim based on the assertion that he was initially identified as the assailant through an im-permissibly suggestive show-up and that this rendered untrustworthy both Smith’s initial identification and her subsequent in-court identification. The trial court refused to suppress that testimony. As a result, at trial, Smith was permitted to testify that, shortly after she arrived at the police station where she had gone to report the crime, she saw Garner in the hall. Garner, who resided near the police station, had been brought in for questioning soon after Smith’s initial report because one of the investigating officers felt, based on his personal familiarity with Garner, that Smith’s description of one of the assailants and her description of the vehicle used by the robbers had implicated Garner as a suspect in the crime.

¶ 11. Gamer now contends that this encounter in the police station constituted a single-person show-up under circumstances that made it likely that she would identify him based, not on an actual recognition, but on the suggestive nature of the circumstances. Formal, arranged single-person show-ups in which the police purposely cause a victim to be confronted with a single individual bearing some general resemblance to the description offered by the victim are not favored in the law. “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), rev’d on other grounds, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). However, the case makes clear that the fact of an identification based on a single person show-up is not, of itself, a basis to exclude evidence of the identification. Rather, the issue is whether, based on a totality of the circumstances, the show-up “was so unnecessarily suggestive and conducive to irreparable mistaken identification” that it amounted to a deprivation of due process. Id.

¶ 12. The considerations that go into making such a determination were set out in some detail in the later case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). That case outlined these five factors: (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’s prior description of the criminal; (4) the level of certainty exhibited by the witness at the confrontation; and (5) the length of the time between the crime and the confrontation. Id. at 199—200, 93 S.Ct. 375.

¶ 13. We note initially that, in this case, there is no indication that the police purposely arranged this face-to-face encounter so that there is some question as to whether this was, in fact, a show-up or merely a chance encounter. However, even conceding for sake of argument that the circumstances give rise to a legitimate due process claim on Garner’s behalf, we are satisfied that, based on a review of the applicable factors of Neil v. Biggers, Smith’s identification of Garner was not made under such unnecessarily suggestive circumstances as to destroy the probative value of her identification. Smith testified at the suppression hearing that the assailants had confronted her in broad daylight and in close proximity. They were not wearing masks, and she claimed to have given particular attention to their features based on her original impression that she was being approached by persons with whom she was acquainted. Smith’s description given to police was sufficiently accurate for them to identify Garner as a suspect based on nothing besides information obtained from her, and, at every stage of the investigation and trial, she continued to be certain that she had properly identified Gamer as one of her assailants. Finally, only the briefest of time transpired between Smith’s encounter in the parking lot and her subsequent unanticipated encounter with Garner at the police station, at which time she identified him of her own volition, apparently without any prompting or inquiry from any investigating officer.

1114. Under the relevant considerations of Neil v. Biggers, we do not conclude that the trial court erred in permitting evidence of this out-of-court identification or by permitting the victim to make an in-court identification of Garner during the course of the trial.

IV.

Request for Additional Lineup

¶ 15. Garner, apparently intending to test once again Smith’s ability to identify him as one of her assailants, requested that the State stage a pre-trial lineup. The court refused to order such a proceeding, and Garner contends that this was reversible error. However, in his brief to this Court, Garner cites no authority for the proposition that a defendant may compel the State to conduct such a proceeding in the hope that the lineup will provide ammunition helpful to the defense. Neither does he advance any coherent argument, based upon constitutional principles or some other relevant consideration, demonstrating that he was denied a fundamentally fair trial because such a lineup was not conducted. In the absence of legal authority or logically persuasive argument in support of this contention, we find it to be without merit. Taylor v. State, 754 So.2d 598, 610-11 (¶¶ 37-40) (Miss.Ct.App.2000) (quoting Johnson v. State, 154 Miss. 512, 513, 122 So. 529 (1929)).

V.

Defective Indictment

¶ 16. Garner sought to have the indictment against him dismissed as being fatally defective on its face for its failure to properly charge venue. The indictment in its original form, failed entirely to charge that the alleged crime occurred in Sunflower County. However, after Garner raised the issue before trial commenced, the trial court permitted an amendment to the indictment to set out venue. Garner contends that the trial court was without authority to amend the indictment and that his conviction should be set aside and this case dismissed because of lack of jurisdiction. The failure to properly charge venue is a procedural defect that may be amended upon order of the trial court without the necessity of grand jury action. Miss.Code Ann. § 99-7-5 (Rev.2000); Evans v. State, 144 Miss. 1, 5, 108 So. 725, 726 (1926) (citing Smith v. Corp. of Oxford, 91 Miss. 651, 45 So. 365 (1908)). Garner attempts to draw a distinction between an indictment that completely omits any reference to venue and one that has “an improper or imperfect statement of the venue of the crime” as set out in Section 99-7-5. We do not find his argument in support of this contention persuasive. Rather, we conclude that an omission of any reference to venue is encompassed within the meaning of the phrase “imperfect statement” found in the applicable statute. For that reason, we find this issue to be without merit.

VI.

Garner’s Challenge to the State’s Evidence

¶ 17. Garner contends that his conviction should be reversed based on a perceived failure by the State to satisfactorily demonstrate his guilt. In this issue, Garner combines two separate legal issues, and it is unclear which proposition he is actually advancing. We will, out of an abundance of caution, consider them both.

VII.

The Sufficiency of the Evidence

¶ 18. If, as to one or more of the essential elements of the crime, the State’s proof is so lacking that a fair-minded juror reasonably assessing the evidence could only find the defendant not guilty, then, on proper post-trial motion by the defendant, the trial court is obligated to enter a judgment of acquittal notwithstanding the jury’s contrary decision. Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss.1998) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987); Franklin v. State, 676 So.2d 287, 288 (Miss.1996)). If the trial court denies that motion and the matter is raised as error on appeal, this Court is required to review all of the evidence to determine whether the trial court erred. Our review requires us to assess the evidence in the light most favorable to upholding the verdict. Id.

¶ 19. Garner’s argument is based on the proposition that there was no physical evidence of his involvement nor was he ever found to be in possession of any of the fruits of the crime. He combines this with the assertion that Smith was obviously dazed from the attack so that her ability to positively identify her assailants ought not to be considered to have much probative value.

¶ 20. The uncorroborated testimony of the victim of a crime is, of itself, sufficient evidence to sustain a conviction if the jury finds the testimony worthy of belief. Barnett, 757 So.2d at 331(¶ 27) (citing Williams v. State, 512 So.2d 666, 670 (Miss.1987)). Questions of credibility of any witness, including the victim, as well as what weight or worth to assign to any witness’s testimony, are matters left to the sound discretion of the jury sitting as finders of fact. Id. at (¶ 25). There is no indication in this case that the jury abandoned its duty in this case and decided the issue of guilt based on some alternate, and impermissible, basis such as bias, passion or prejudice against the defendant. Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 389(¶ 16) (Miss.2001) (citing Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 131 (Miss.1989)). Smith’s testimony provided evidence of all of the essential elements of the crime and her testimony identifying Garner was unequivocal. In that situation, we cannot say that a judgment of acquittal was the only appropriate result of this trial.

¶ 21. There is the related issue as to whether, despite the State’s ability to present evidence sufficient to support a conviction, the overall assessment of the proof for and against guilt leads the court to the conclusion that the verdict was so against the weight of the credible evidence that to permit it to stand would work a manifest injustice. In that situation, rather than a court-mandated judgment of acquittal, the law requires that the defendant be granted a new trial. Johnson v. State, 642 So.2d 924, 928 (Miss.1994). Because of the somewhat subjective nature of the analysis of the evidence on this question, the trial court has substantial discretion in determining whether a new trial is indicated on that ground. Id. If the motion is denied by the trial court and that decision is raised as error on appeal, the appellate court must review all of the evidence and, affording the trial court substantial deference based on that court’s having heard the evidence first hand, assess the denial of the motion on an abuse of discretion standard. Id. (citations omitted). In this case, we have evidence of the fact that, shortly after the incident, the victim was able to give a description of her assailant and the get-away vehicle that was of sufficient detail and clarity that it enabled investigating officers to immediately identify Garner as a suspect. Subsequently, Smith positively identified Garner when she saw him, not in a formal show-up, but in a chance encounter shortly after the incident. Her ability to identify and describe her assailant was further bolstered by the fact that it was discovered that Gamer was wearing a pair of camouflage-patterned trousers that, in actuality, covered another pair of trousers that closely fit Smith’s earlier description of the manner in which the assailant was dressed. Viewed in the light most favorable to the State, we do not find this verdict to be so against the weight of the evidence as to lead us to the conclusion that the trial court abused its discretion in denying Garner’s new trial motion.

VIII.

Cumulative Weight of Error

¶ 22. As a final issue, Garner contends that an assessment of the cumulative weight of the various errors, whether each considered in isolation was of such gravity as to require reversal, leads to the conclusion that he did not receive a fundamentally fair trial. We have reviewed the various issues raised and have already concluded that the allegations of various errors were without merit. On that basis, the foundational premise of Garner’s argument fails, and we find this contention to be without merit. McFee v. State, 511 So.2d 130, 136 (Miss.1987).

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Mary M. DEEN, Appellant, v. Charles DEEN, Appellee.
    No. 2002-CA-00198-COA.
    Court of Appeals of Mississippi.
    Oct. 14, 2003.

      Oby Thomas Rogers, Collins, attorney for appellant.
    Deborah J. Gambrell, Hattiesburg, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the court.

¶ 1. On January 8, 2002, Charles Deen was granted a divorce from Mary M. Deen based on constructive desertion. Ms. Deen has appealed the judgment by the Chancery Court of Jefferson Davis County and has raised the following issues:

I. Did the trial court err in granting a divorce to Mr. Deen on the ground of constructive desertion?
II. Did the trial court err in denying Ms. Deen’s request for attorney’s fees?

FACTS

¶ 2. The Deens were married in 1979 in Harrison County, Mississippi. Mr. Deen became legally blind in 1997. The Deens lived together until a final separation occurred in June 1998. No children were born to this union.

¶3. On September 15, 2000, Mr. Deen filed a complaint seeking a divorce from Mrs. Deen on the primary grounds of habitual cruel and inhuman treatment, and the alternative grounds of irreconcilable differences. A prior complaint for divorce had been denied in October of 1998.

¶4. During the trial of this action on April 26, 2001, Mr. Deen testified that a pattern had been established where he spent most weekends with his sister. Mrs. Deen would take him to the sister’s house on Friday and pick him up on Sunday. He indicated that this was true even on many weekends when Mrs. Deen was informed of his desire not to visit his sister. According to Mr. Deen, on the last visit to his sister’s house in 1998, Mrs. Deen neither called to check on him nor came to pick him up for approximately nine days.

¶ 5. Mr. Deen testified that Mrs. Deen mistreated him. He stated that Mrs. Deen would go to work during the week, and leave him without food while she was working.

¶ 6. Mr. Deen indicated that Mrs. Deen, without consulting him, brought her grandson, Grammar Lee Lockhart, to stay with them. Lockhart stayed with the Deens for approximately three years. Mr. Deen testified that during that period of time, the grandson treated him with disrespect and on at least one occasion in 1995, threatened him. According to Mr. Deen, when he informed Mrs. Deen of her grandson’s conduct, she stated that he (Mr. Deen) should leave Lockhart alone before Lockhart hurt him. While putting a different spin on the matter, this disrespect was corroborated by the grandson who testified that both he and Mr. Deen had made negative remarks to each other.

¶ 7. Mr. Deen testified that since their separation in June 1998, the only contact between them was at the first trial on October 20, 1998. He noted that if Mrs. Deen had come for him after the first trial, he would have gone home with her. Mr. Deen also stated their marriage would have remained viable if Mrs. Deen had continued to treat him well. Mr. Deen indicated that he now rents a small trailer on someone else’s property and pays someone to assist him as needed.

¶ 8. Mrs. Deen testified that despite the separation, she did not want a divorce. Mrs. Deen testified that while she worked daily from 7:00 a.m. to 3:30 p.m., she would leave food for Mr. Deen. Mrs. Deen indicated that it was the desire of Mr. Deen’s sister to have someone stay with her on the weekend, which caused Mr. Deen to be there on the weekend. Mrs. Deen testified that Mr. Deen’s sister would not allow him to return home. Mrs. Deen testified that she did not go and pick up her husband because it was her belief that he had a relationship with someone else.

¶ 9. At the trial, Mr. Deen amended his pleadings to also charge constructive desertion. The chancellor denied the divorce on the grounds of cruel and inhuman treatment, but granted a divorce based on constructive desertion. Mrs. Deen’s request for attorney’s fees was denied.

ISSUES AND ANALYSIS

I.

Did the trial court err in granting a divorce to Mr. Deen on the ground of constructive desertion?

¶ 10. Ms. Deen contends that the trial court’s ruling “is manifestly wrong and not supported by substantial, credible evidence.”

¶ 11. Desertion requires a showing of wilful, continued and obstinate desertion for the space of one year, Miss. Code Ann. § 93-5-1 (Rev.1994), the principle of constructive desertion may be applied in extreme cases. Griffin v. Griffin, 207 Miss. 500, 505, 42 So.2d 720, 722 (1949).

Constructive desertion may occur if either party by reason of such conduct on the part of the other, as would reasonably render the continuance of the marital relation, unendurable or dangerous to life, health or safety, is compelled to leave the home and seek safety, peace and protection elsewhere; or if the husband negligently or wilfully fails or refuses to support the wife, reasonably, in accordance with his means and ability, then the innocent one will, ordinarily, be justified in severing the marital relation and leaving the domicile of the other so long as such conditions shall continue. And in such event the one so leaving will not be guilty of desertion but the one whose conduct caused the separation will be guilty of constructive desertion.’

Griffin, 42 So.2d at 722.

¶ 12. In this case, the chancellor determined the following:

The Court finds that Mr. Deen is entitled to a divorce on the grounds of constructive desertion in that the testimony is quite obvious from all that has been done, that Mr. Deen has been blind. That he may be living in Bassfíeld. I don’t know who he’s living with. She’s testified that he’s been down there for two years. She says she has no business down there. But if her husband is down there and she wanted her husband back, then it sounds like she’s got business to go down there. She has failed to do so within the one year as pertain [sic] to by the statute and therefore the Court finds that since Mr. Deen could not drive himself back down there, she has not appeared to take him back, that she is guilty of constructive desertion.

¶ 13. In reviewing domestic relations matters, this Court is limited by the substantial evidence/manifest error rule. We may only reverse a chancellor’s finding of fact when there is no substantial and credible evidence in the record which supports that finding. Where the chancellor is not manifestly wrong, is not clearly erroneous and has not applied an erroneous legal standard, this Court is will not disturb his findings. Hensarling v. Hensarling, 824 So.2d 583(¶ 7) (Miss.2002) (citations omitted).

¶ 14. The chancellor found that the course of conduct by Mrs. Deen amounted to constructive desertion. The record before this Court contains substantial, credible evidence which supports the chancellors’s holding. Because this holding is supported by substantial, credible evidence, this Court is required to defer to that decision.

II.

Did the trial court err in denying Mrs. Deen’s request for attorney’s fees?

¶ 15. Mrs. Deen contends that the trial court erred in denying her request for attorney’s fees. She maintains that “[i]t appears from a review of the transcript and the court record that there was no ruling by the Chancellor regarding the Appellant’s request for attorney’s fees; however, it was assumed denied by the Appellant given the fact that the divorce was granted.” Mrs. Deen asserts that the divorce action was not filed in good faith and that she is without sufficient funds to pay her attorney.

¶ 16. The question of attorney’s fees in a divorce action is a matter largely entrusted to the sound discretion of the trial court. East v. East, 775 So.2d 741(¶ 4) (Miss.Ct.App.2000). “If a party is financially able to pay her attorney, an award of attorney’s fees is not appropriate.” Id. Mrs. Deen offered no evidence of any inability to pay her own attorney’s fees. The party requesting attorney’s fees has that burden of proof on that issue. Mrs. Deen did not meet that burden of proof. If the record does not demonstrate the wife’s inability to pay her attorney’s fees, then an award of the fees is an abuse of discretion. Benson v. Benson, 608 So.2d 709, 712 (Miss.1992). Because Mrs. Deen did not demonstrate an inability to pay her attorney fees, we find no error in the chancellor’s decision to deny attorney’s fees.

¶ 17. THE JUDGMENT OF THE JEFFERSON DAVIS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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