text:
    James Ray EDGE, Jr. a/k/a Buddy, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00012-COA.
    Court of Appeals of Mississippi.
    July 17, 2007.

      James Ray Edge, Jr., Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. James Ray “Buddy” Edge, Jr. pled guilty to burglary of an occupied dwelling pursuant to Mississippi Code Annotated section 97-7-23 (Rev.2006) and was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections, with ten years to serve and ten years suspended with five years on post-release supervision. He was also ordered to complete an alcohol, drug and anger management treatment program while incarcerated and to pay a fine of $725 and restitution of $1,035. The Circuit Court of Itawamba County summarily dismissed his motion for post-conviction (PCR) relief.

¶2. On appeal, Edge raises claims of ineffective assistance of counsel, that his guilty plea was involuntary, and that he is entitled to an evidentiary hearing.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Edge was indicted during the October 2003 term of the Itawamba County Circuit Court on the charge of burglary of an occupied dwelling pursuant to section 99-17-23 of the Mississippi Code Annotated (Rev.2006). The charges stemmed from an altercation Edge had with his estranged wife, wherein Edge forcibly entered her home, threatened her, and swung a hammer over her head during an argument.

¶5. On December 12, 2003, Edge retained the services of an attorney (“first attorney”) to handle Edge’s divorce and also the criminal case involving the burglary charge. The first attorney filed several pre-trial motions on Edge’s behalf and advised his client to plead not guilty to the criminal charge. Edge maintains that the attorney assured him that the criminal charges would “all go away” and, at the very least, the attorney would attempt to reduce the burglary charge to misdemean- or trespassing. Edge attached three affidavits to his PCR motion to support this claim.

¶ 6. A few months later, the first attorney left his law firm and began practicing with a new partner (“substitute counsel”). According to Edge, the first attorney, citing his lack of criminal defense experience, tendered the criminal case to the substitute counsel. Edge claims that the substitute counsel originally advised him to plead not guilty to the burglary charge, just as the first attorney had advised. However, on June 15, 2004, the day before trial, the substitute counsel changed course and advised Edge to plead guilty. Edge also claims that the substitute counsel reassured him that, as a first-time offender, Edge would be eligible for parole after serving only twenty-five percent of his sentence. Edge claims that, had he been aware that parole is not available for a burglary conviction in Mississippi, he would have chosen to plead not guilty and proceed to trial.

¶ 7. On June 16, 2004, Edge entered an open plea of guilt to the charge of burglary, thereby waiving his right to a jury trial. The court performed a plea qualification hearing. Satisfied that Edge was competent and had entered the plea knowingly and voluntarily, the court accepted the plea. During the hearing, Edge called several witnesses who testified in extenuation and mitigation of Edge’s sentence. Edge also testified on his own behalf. After hearing the testimony, the court imposed sentence. The judge noted that Edge would be required to serve the full ten years of the sentence, to which Edge replied that he understood.

¶ 8. Thereafter, the substitute counsel then transferred Edge’s case back to the first attorney, who handled some of Edge’s post-trial motions. Edge then filed, pro se, a PCR motion and motion to vacate, set aside or correct his sentence on August 4, 2005, asserting that he was denied effective assistance of counsel and, therefore, his guilty plea was made involuntarily and unintelligently. He alleged that he did not learn until after he was incarcerated that he had received incorrect information regarding his ineligibility for parole. The trial court dismissed Edge’s PCR petition. Edge also filed a direct appeal, challenging the length of his sentence. The lower court denied Edge’s challenge and this Court upheld the lower court’s decision. Edge v. State, 945 So.2d 1004, 1009 (¶ 23) (Miss.Ct.App.2007).

STANDARD OF REVIEW

¶ 9. This Court will not disturb the trial court’s factual findings regarding a lower court’s decision to deny a petition for post-conviction relief unless they are found to be clearly erroneous. Garner v. State, 928 So.2d 911, 913(¶ 4) (Miss.Ct.App.2006). However, questions of law are reviewed de novo. Id.

LAW AND ANALYSIS

I. WHETHER EDGE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 10. Edge does not contest his guilt, but makes several claims of ineffective assistance of counsel against both his first attorney and his substitute counsel. Edge claims that, due to the deficient performance of his attorneys and the erroneous advice given, his guilty plea was involuntary.

¶ 11. When reviewing a claim of ineffective assistance of counsel, we look to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which articulated a two-prong test. Id. The defendant must demonstrate that counsel’s performance was deficient and, but for the deficient performance, a different result would likely have occurred. Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss.Ct.App.2003). Due to the nature of the claims made involving distinct issues, we will address the claims against each lawyer separately.

A. Allegations against ñrst attorney

¶ 12. Edge makes several allegations as to his first attorney’s faulty performance, namely that the attorney promised that the criminal charges would “all go away” and that the reason the first attorney deferred the case to substitute counsel was the first attorney’s admission of a lack of experience with criminal matters. Edge originally hired the first attorney to handle the criminal case involved with this appeal and another case involving Edge’s divorce when the first attorney was associated with his old firm. After filing pre-trial motions on Edge’s behalf for the burglary charges, the first attorney left his old firm and joined another law firm. Upon moving to the new firm, the first attorney transferred the work to his new law partner approximately one month before the scheduled trial date.

¶ 13. Edge attached three affidavits to his PCR motion from witnesses present during the initial meetings with the first attorney to support his argument. Edge’s father, James Ray Edge, Sr., stated that the attorney assured the family that the criminal charges would “all go away” and, at the very least, that the attorney would be able to have the charges reduced from “breaking and entering” to “misdemeanor trespassing.” Diane Sanders, Edge’s mother, also provided an affidavit in which she stated that the attorney assured them he could keep the charges at the municipal level and if Edge received any punishment at all, it would be in the form of probation. She also corroborated the assertions that the attorney said the criminal charges would “all go away.” Another affidavit was provided by Jennifer Horton, who stated that the attorney told the group that the criminal charges would be reduced from burglary to trespassing and that Edge “would not have to worry about jail time.” Horton also corroborated the attorney’s statement that the criminal charges would “all go away.”

¶ 14. Edge also claims that the first attorney deferred the case to substitute counsel because he “lacked criminal experience.” Yet in his brief, Edge also asserts that the first attorney tendered the case to substitute counsel because the first attorney was a candidate for mayor in a nearby town. If the first attorney was unable to devote his full attention to Edge’s case due to either personal reasons or lack of experience and, therefore, submitted the case to another qualified attorney within a reasonable amount of time before trial, we cannot find this to be deemed ineffective assistance of counsel. Nor can we say .that conversations the first attorney may have had with Edge and his family during preliminary negotiations regarding the criminal case can be considered ineffective assistance of counsel. In Mississippi, there is a strong presumption that trial counsel’s conduct is “within the wide range of reasonable conduct and that decisions made by counsel are strategic.” Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985). Throughout his proceedings with Edge, it is undisputed that the first attorney advised Edge to plead not guilty. On appeal, a not guilty plea is exactly what Edge claims he would have entered had it not been for certain advice given to him by the substitute counsel, not the first attorney.

¶ 15. The record before us contains no evidence to prove that the first attorney failed in his duties as Edge’s counsel. On the contrary, the record shows that the pre-trial motions were timely filed and properly pled. Edge has not demonstrated that the first attorney was deficient in those duties or that any alleged deficiency prejudiced his criminal case. Therefore, Edge’s allegations of ineffective assistance of counsel against the first attorney are without merit.

B. Assertions against substitute counsel

¶ 16. We next address Edge’s allegations against his substitute counsel. Edge claims that his substitute counsel gave him erroneous advice about parole eligibility by assuring him that he would be eligible for parole after serving only twenty-five percent of his sentence. Edge claims that he did not learn until he entered prison that he would be ineligible for parole due to the nature of the crime. In Mississippi, a person convicted of burglary is not eligible for parole. Miss.Code Ann. § 47-7-3(1)(g) (Rev 2006). Edge claims that, had he been aware of his ineligibility for parole, he would have pled not guilty and chosen to go to trial.

¶ 17. A guilty plea is involuntary if it is induced by fear, violence, deception, or improper inducements. URCCC 8.04. A plea of guilt is binding upon the criminal defendant only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “Where a defendant enters a plea on advice of counsel, the attorney’s performance is deemed ‘deficient’ for purposes of the Strickland standard if it falls below ‘the range of competence demanded of attorneys in criminal cases.’ ” Id. at 1173 (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). “A defendant who pleads guilty to a crime is ‘prejudiced’ by his counsel’s erroneous advice if ‘he would have insisted on going to trial if he had been correctly informed.’ ” Id. (quoting Wilson v. State, 577 So.2d 394, 396 (Miss.1991)).

¶ 18. Edge relies on our holding in Garner v. State, 928 So.2d 911 (Miss.Ct.App.2006), to support his argument. In Garner, this Court found that erroneous information regarding parole given by the trial court during Garner’s sentencing hearing was reversible error and that Garner was eligible for an evidentiary hearing to determine whether he relied on that information in making his plea. Id. at 915(¶ 17). The record supported Garner’s argument that the trial court made erroneous statements regarding parole eligibility.

¶ 19. In that case, Garner also made a claim of ineffective assistance of counsel, to which the court noted that for Garner to prevail on that argument, he had to show that he was “misled, that the case was misrepresented to him, or that he expected to receive a lesser sentence.” Id. at 914(¶ 7). In the present case, the record is void of any evidence to corroborate what the substitute counsel told Edge, beyond Edge’s implicit assertions in his PCR motion. Edge did offer three affidavits, which all state that the affiants believed that the substitute counsel did not properly represent Edge, but none of the affidavits attest to what the counsel actually told Edge. Absent additional proof, we are unable to say that the substitute counsel was derelict in his duties while representing Edge.

¶ 20. Further, the trial court explicitly informed Edge that he would be required to serve the full ten years of his sentence. The court gave Edge an opportunity to ask questions, which Edge denied. Edge stated that he understood the sentence imposed, that his substitute counsel had informed him of the charges against him and the maximum and minimum sentence available, and that his plea was made voluntarily and knowingly.

¶ 21. Our state’s parole statutes employ the permissive “may” rather than “shall,” in reference to whether parole may be granted in certain cases. Therefore, prisoners have “no constitutionally recognized liberty interest” in parole. Vice v. State, 679 So.2d 205, 208 (Miss.1996) (quoting Smith v. State, 580 So.2d 1221, 1225-26 (Miss.1991)). Thus, without additional proof, we are unable to find that the representation of Edge by the substitute counsel constituted ineffective assistance of counsel.

II. WHETHER THE TRIAL COURT ERRED BY DENYING EDGE AN EVIDENTIARY HEARING.

¶ 22. In its order dismissing Edge’s PCR motion, the trial court found that under the two-prong Strickland test, Edge did not meet his burden. See Strickland, 466 U.S. at 687-96. Therefore, the court dismissed Edge’s motion and denied him a hearing. The court noted that “Petitioner cannot make a valid claim for ineffective assistance if the only proof he has concerning deficient performance of his counsel is his own statement.” The lower court also noted that, if there is little chance of success at trial, it is not ineffective assistance of counsel for an attorney to recommend that a defendant plead guilty.

¶ 23. Pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, a petitioner is entitled to an in-court opportunity to prove his claims if the claims are “procedurally alive and ‘substantially show[ ] denial of a state or federal right.’ ” Horton v. State 584 So.2d 764, 767 (Miss.1991) (citing Miss.Code Ann. §§ 99-39-1 through 99-39-29 (Supp.1992)). Accordingly, this Court must decide whether Edge is entitled to an evidentiary hearing where he will have an opportunity to prove his claims. An evidentiary hearing should be granted “where the record was so inadequate that it was impossible to determine whether the defendant really understood the nature of his guilty plea.” Horton, 584 So.2d at 768.

¶ 24. In Vittitoe v. State, 556 So.2d 1062, 1063 (Miss.1990), our supreme court held that “before a person may plead guilty to a felony he must be informed of his rights, the nature and consequences of the act he contemplates, and any relevant facts and circumstances, and thereafter, voluntarily enter the pleas.” (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). Therefore, the question of voluntariness necessarily involves issues of fact. Banana v. State, 635 So.2d 851, 854 (Miss.1994). Factors such as the quality of the advice of counsel have been considered when reviewing the voluntariness of a guilty plea. Leatherwood v. State, 539 So.2d 1378, 1388 (Miss.1989).

¶ 25. Trial courts are not required to provide parole information because eligibility or ineligibility for parole is not a “consequence” of a plea of guilty, but a “matter of legislative grace” or a “consequence of the withholding of legislative grace.” Smith v. United States, 324 F.2d 436, 441 (D.C.Cir.1963). This Court has held that the “failure to mention something concerning parole eligibility may be no problem, but erroneous information concerning parole and sentencing at least entitles the petitioner to an evidentiary hearing on whether he relied on the erroneous information.” Fairley v. State, 834 So.2d 704, 707(¶ 8) (Miss.2003). In Fairley, the erroneous information was given by the trial court and contained in the record. In the present case, we do not have definite proof as to what information the substitute counsel gave to Edge and we cannot find, even from the affidavits Edge presented, that the substitute counsel gave any erroneous information to Edge. We therefore defer to our holding in McNabb v. State, 915 So.2d 478, 480(¶ 5) (Miss.Ct.App.2005), where this Court found that the defendant was not entitled to an evidentiary hearing because “a circuit court may dismiss a petition for post-conviction relief without an evidentiary hearing when it plainly appears from the petition, the court’s files, and prior proceedings that the petitioner is not entitled to relief.”

¶ 26. Edge’s petition to enter a guilty plea is not contained in the record. The evidence we have to consider is his implicit assertion in his PCR motion that his substitute counsel provided him with erroneous information regarding parole eligibility. Without more, we are unable to say that the trial court erred by dismissing Edge’s PCR motion. Accordingly, we affirm the lower court’s decision.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Sammie JOHNSON a/k/a Sammie Lee Johnson, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00149-COA.
    Court of Appeals of Mississippi.
    July 17, 2007.

      Sammie Johnson. Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
    BEFORE KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Sammie Johnson appeals the Marshall County Circuit Court’s denial of his petition for post-conviction relief. This Court finds that Johnson’s claims are procedurally barred and therefore, we affirm the denial of post-conviction relief.

FACTS

¶ 2. A Marshall County Grand Jury indicted Sammie Lee Johnson on a multi-count indictment for one count of capital murder, in violation of Mississippi Code Annotated Section 97-3-19(2)(d) (Rev. 2006), and two counts of accessory after the fact, in violation of Mississippi Code Annotated Section 97-1-5 (Rev.2006). A plea hearing was held on August 19, 2002, at which time Johnson entered a guilty plea. The trial court sentenced Johnson to a term of life in the custody of the Mississippi Department of Corrections, without the possibility of parole.

¶ 3. Subsequent to his plea of guilty, Johnson sought post-conviction relief in the Marshall County Circuit Court. The trial court denied that relief on November 26, 2003, and Johnson did not seek appellate review of that denial.

¶ 4. On July 7, 2005, Johnson filed a second request for post-conviction relief, which was denied on August 30, 2005.

¶ 5. On September 12, 2005, Johnson filed a motion to clarify the August 30, 2005 judgment, which the trial court treated as Johnson’s third motion for post-conviction relief. The trial court denied Johnson’s third request for post-conviction relief on December 2, 2005.

¶ 6. On January 24, 2006, Johnson filed a notice of appeal of the circuit court’s December 2, 2005 decision denying his requested relief. In the meantime, Johnson sought to have his conviction vacated by filing an Application for Vacation of Petitioner’s Conviction or, in the Alternative, Remand to the Circuit Court for an Evi-dentiary Hearing on the Petitioner’s Motion to Vacate Conviction. This Court denied the application on March 8, 2006.

¶ 7. We find Johnson’s claims are not properly before this Court because (1)- the filing of the appeal is untimely and (2) the claims are barred by successive writ.

STANDARD OF REVIEW

¶ 8. This court will not disturb the trial court’s decision to deny post-conviction relief unless the trial court’s decision proves to be clearly erroneous. Arnold v. State, 912 So.2d 202, 203(¶ 2) (Miss.Ct.App.2005). The Court, however, reviews questions of law de novo. Hoskins v. State, 934 So.2d 326, 328(¶ 4) (Miss.Ct.App.2006)

ANALYSIS

Whether Johnson’s claims are properly before this Court.

¶ 9. Parties seeking appeals from judgments have thirty days from the date of judgment entry to file a notice of appeal with the trial court clerk. M.R.A.P. 4(a). See also Pearson v. State, 906 So.2d 788, 790(¶ 6) (Miss.Ct.App.2004). The State argues Johnson’s appeal was untimely filed and, therefore, improperly before the Court. The trial court denied Johnson’s third request for post-conviction relief on December 2, 2005. Johnson did not file a notice of appeal until January 24, 2006. He does not present any evidence of a court order extending the time period in which he could file an appeal. Pursuant to Rule 2(a)(1) of the Mississippi Rules of Appellate Procedure, Johnson’s appeal shall be dismissed for failure to timely file his appeal. Penn v. State, 909 So.2d 135, 136(¶ 6) (Miss.Ct.App.2005).

¶ 10. Johnson’s claims are also proeedurally barred as successive writ. The State legislature has provided for post-conviction relief in Mississippi Code Annotated Sections 99-39-1 to -29 (Supp.2006). Pursuant to Mississippi Code Annotated Section 99-39-23(6) (Supp.2006), the denial of post-conviction relief is a final judgment, which is a bar to a subsequent request for post-conviction relief unless (1) there has been an intervening decision of the United States Supreme Court or of the Mississippi Supreme Court, which would require a different outcome or sentence, (2) there is newly discovered evidence, which was not previously discoverable, which would have been practically conclusive if available at trial or (3) the defendant claims that this sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

¶ 11. The circuit court dismissed Johnson’s post-conviction motion on December 5, 2005, finding it was the third motion Johnson filed for post-conviction relief. Because it was a subsequent request for post-conviction relief, Johnson had the burden of proving that he fit within at least one of the exceptions to Section 99-39-23(6). Should Johnson not provide proof that his claims satisfy a statutory exception to the successive writ bar and the trial court has not previously rendered a decision on the merits of the claims, then those claims are barred from consideration by the Court. Stone v. State, 872 So.2d 87, 89(¶ 13) (Miss.Ct.App.2004).

¶ 12. Johnson has failed to provide this Court with any facts that would satisfy any of the exceptions to the successive writ bar. This Court’s review of the record placed before it also does not suggest the existence of any such exception to the successive writ bar. Accordingly, this Court finds that Johnson’s request for post-conviction relief is untimely filed and proeedurally barred as a successive writ, and the denial of post-conviction relief is affirmed.

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

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: CARLTON, J.,

text:
    In the Matter of the ESTATE OF Corrine L. HUDSON, Deceased. Audrey McClendon and James McClendon, Appellants v. Lawrence J. Hudson, Jr., Appellee.
    No. 2006-CA-01046-COA.
    Court of Appeals of Mississippi.
    July 31, 2007.
    Melvin G. Cooper, Biloxi, attorney for appellants.
    April Dawn Taylor, attorney for appel-lee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. The Harrison County Chancery Court set aside an order to reopen an estate and for an accounting of estate assets. The court also granted a motion to dismiss the petition to reopen which was previously granted. The petitioners, seeking to reopen the estate and an accounting, appeal, arguing that an interested party was before the court and that fraud was sufficiently alleged to toll the statute of limitations. Finding no error, we affirm the dismissal of the action as barred by the statute of limitations.

FACTS

¶ 2. Corrine L. Hudson was born on December 10, 1915. She was widowed when her husband, Lawrence Joseph Hudson, Sr. died on September 15, 1991. On December 13, 1996, two of Corrine’s four children, Lawrence Hudson, Jr. and Audrey McClendon, were appointed co-conservators of their mother. On December 9,1999, Corrine passed away.

¶ 3. After a final accounting of the con-servatorship was approved, Corrine’s estate was opened on February 6, 2001. Lawrence Hudson, Jr. was appointed as the administrator of the estate. At the time of her death, Corrine’s heirs included her three living children, Shirley McGee, Lawrence Hudson, Jr., and Audrey McClendon, and the three surviving heirs of Corrine’s already deceased child, James Hudson. On December 4, 2001, the Harrison County Chancery Court entered an order approving the waiver of a final accounting for the estate and discharged Hudson as the administrator. It is at this point that Hudson’s duties as administrator were discharged and all of the estate’s assets were distributed. All of the heirs at law, including Audrey, joined in the petition to close the estate and to approve the waiver of final accounting. Through the petition, all of the heirs swore that everything in the petition was true and correct.

¶ 4. On November 12, 2004, Audrey’s son, James McClendon, filed a petition to reopen his grandmother’s estate and for an accounting of the estate’s distributed assets. The petition did not request an accounting of the conservatorship. On December 2, 2004, the chancery court granted the petition, reopened the estate, and ordered the administrator to account for and explain the distribution of all of the funds of both the estate and conservator-ship.

¶ 5. On February 28, 2005, Hudson filed a response to McClendon’s motion and a motion to dismiss McClendon’s petition. The motion to dismiss set out the defenses that McClendon lacked standing, that the statute of limitations had run, that McClendon’s petition failed to state a claim on which relief could be granted, failed to join necessary and indispensable parties, that McClendon failed to support his allegations with any factual basis, and that McClendon was using these proceedings to force Hudson to sell to McClendon a strip of land which Hudson owned.

¶ 6. On May 26, 2004, Hudson filed a motion to set aside the order granting McClendon’s petition. Hudson argued that McClendon was granted relief to which he was not entitled. McClendon then filed a motion to remove Hudson as the administrator of the estate, to revoke the previously issued letters of administration, and to appoint a new administrator and new letters of administration.

¶ 7. On May 24, 2005, Audrey filed a document purporting to join McClendon’s petitions, stating in part that Audrey had received and reviewed a copy of the petitions and “does hereby enter her appearance and consent to the relief prayed for in the Petitions.” On January 11, 2006, Audrey filed a response to Hudson’s motion to set aside the court’s order. Other motions were filed by the parties. The chancery court held a hearing on February 8, 2006, concerning the numerous motions filed by the parties.

¶8. On May 24, 2006, the chancellor determined that McClendon’s petition to reopen the estate failed to state fraud with particularity as required by Mississippi Rule of Civil Procedure 9(b). The chancellor also determined that the statute of limitations involved was not tolled because none of the interested parties was disabled as defined by statute. Miss.Code Ann. § 15-1-59 (Rev.2003). Therefore, the chancellor granted Hudson’s motion to set aside the order granting the reopening of the estate and for an accounting. Having granted Hudson’s motion to set aside, the chancellor then determined Hudson’s motion to dismiss.

¶ 9. The chancellor determined that McClendon lacked standing to petition the court to reopen the estate and for an accounting. The chancellor reasoned that since McClendon was not an heir at law, that he was not an interested party. Hoskins v. Holmes County Cmty. Hosp., 135 Miss. 89, 92, 99 So. 570, 573 (1924). In addition, the chancellor concluded that McClendon was barred by the applicable two-year statute of limitations. Miss.Code Ann. § 91-7-309 (Rev.2004); Byrd v. Page, 384 So.2d 1038, 1041 (Miss.1980). Aggrieved by the decisions of the chancellor, McClendon appeals. His appeal has been assigned to this Court.

DISCUSSION

¶ 10. The chancellor’s findings of fact are entitled to deference on review unless they are clearly erroneous or manifestly wrong. Graves v. Dudley Maples, L.P., 950 So.2d 1017(¶ 14) (Miss.2007). Questions of law are reviewed de novo. Id.

¶ 11. McClendon filed the petition to reopen the estate and for an accounting nearly three years after the estate had been closed. He argues that the two-year statute of limitation is tolled because fraud was specifically alleged in the petition. He also argues that Audrey was under a disability which allowed for the tolling of the statute of limitation.

¶ 12. The applicable statute of limitation to open the account of the administrator of the estate is two years from the date the estate was closed. Miss.Code Ann. § 91-7-309 (Rev.2004). The estate was closed on December 4, 2001. McClen-don’s petition was filed on November 12, 2004, nearly three years after the estate was closed. We do not discuss the argument that Audrey was under a disability causing the tolling of the statute of limitation. The chancellor found, and the record demonstrates, that other than a mere allegation, no evidence was advanced that Audrey was ever suffering from a disability. Therefore, the issue of whether the statute of limitations was tolled due to a disability is not applicable to this appeal. Fraud may constitute a bar to this statute of limitation. See Byrd, 384 So.2d at 1041.

¶ 13. In Byrd, the supreme court affirmed the decision of a chancellor to dismiss a suit where a petitioner filed to reopen an estate but failed to plead fraud with particularity. Id. Similar to the present situation, in Byrd, a decedent’s widow, also the petitioner to reopen the estate, had previously joined in the petition to close the estate. Her petition to reopen the estate was filed after two years had past since the estate was closed. There was evidence that in addition to jointly requesting that the estate be closed, the petitioner was present at the hearing where the chancellor approved the sale of estate property. The supreme court affirmed the decision of the chancellor to dismiss the suit because the petitioner’s pleading did not allege fraud with the required particularity. Id. at 1039-41.

¶ 14. McClendon argues that the present situation is distinguished from Byrd because Audrey only signed the final order closing the estate. We are mindful of this precedent and McClendon’s argument, but do not find either fully persuasive in the outcome of this case. We now examine whether the pleading in McClendon’s petition stated fraud with the required particularity as to constitute a bar to the statute of limitation here.

¶ 15. The petition alleged the following: That the Administrator, Lawrence Hudson, Jr. did encumber certain real property that was owned by the Estate without Court approval and did misrepresent himself in his individual capacity as the owner of certain real property and did cause the same to be sold without remitting the funds to the Estate. Furthermore, the said Lawrence Hudson, Jr. has refused to account for said funds or to explain his actions to the heirs or to counsel for the Estate, and has further failed and refused [to] distribute assets of the estate to the heirs.

¶ 16. Mississippi Rule of Civil Procedure 9(b) states that “in all aver-ments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” A complaint will be dismissed when a party fails to sufficiently plead allegations of fraud. State Indus. v. Hodges, 919 So.2d 943, 946(¶ 5) (Miss.2006). In accordance with the comment to Rule 9, the supreme court has stated that “[fraud]' will not be inferred or presumed and may not be charged in general terms. The circumstances of the alleged fraud such as the time, place and contents of any false representations or conduct must be stated.” Howard v. Estate of Harper, 947 So.2d 854(¶ 20) (Miss.2006) (citation omitted).

¶ 17. In the present case, McClendon’s petition does not specify what property was encumbered or when this act took place. The allegation implies that Hudson wrongfully retained money to which the estate was entitled. The parties provided information in their appellate briefs concerning evidence of fraud and the lack thereof. Evidence was presented to the chancellor at the hearing reflecting that a piece of property was sold by Hudson as a co-conservator and that all of the proceeds of that land sale were accounted for as evidenced by deposits into proper accounts just after the sale of the land. There was also argument concerning a loan secured by certain property, and that the heirs were all aware of the loan prior to jointly petitioning the court to close the estate. However, the evidence that may support that Hudson committed fraud or exculpate him from such an allegation is not relevant to this appeal. We look only to the particularity of the allegation in the pleadings.

¶ 18. The details of the property involved and the time which this alleged act took place are highly relevant here due to Audrey having previously joined a petition with Hudson and the other heirs for the waiver of an accounting and to close the estate. The absent details in the allegation of fraud are significant because Audrey’s knowledge of transactions prior to her petitioning the court to waive an accounting and close the estate may act as a waiver of her right to now petition for an accounting. See Smith v. Bank of Clarksdale, 374 So.2d 776, 781 (Miss.1979) (failure to exercise right to the supplemental realty and suffering the estate to be closed without such setting aside waived right thereto, and resulted in preclusion from reopening the estate pursuant to Section 91-7-309); Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878 (1964) (stating that a decree directing final distribution of the personal estate made in conformity with law is conclusive as to every matter involved and constitutes a bar to further proceedings concerning the same matter).

¶ 19. Of importance is that the sale of land is a transaction that is not easily hidden. The allegations made against Hudson do not include that his alleged fraudulent acts concealed information required to pursue a valid cause of action. See e.g., Hodges, 919 So.2d at 946(¶ 5) (court did not abuse its discretion in holding that allegations of fraud were stated with sufficient particularity where plaintiffs stated the date of an investigation, that a report was forwarded to an identified party who perpetrated the fraud, that the report itself was the substance of the fraudulent concealment, and that the result of the concealment was that plaintiffs did not discover their cause of action against the identified party due to the fraud). McClendon alleged no such concealment here and failed to set out the particular information of the alleged fraud.

¶ 20. McClendon failed to set out in the pleading basic available information such as the time of the conduct and the particular land involved. His allegation of fraud against Hudson was not stated with the required particularity to overcome the statute of limitations. Therefore, the two-year statute of limitations bars McClendon from pursuing this action. The action was barred by the statute of limitations and is dispositive of the appeal.

¶ 21. THE JUDGMENT OP THE HARRISON COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


text:
    Mary E. HENRY, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2006-CC-01129-COA.
    Court of Appeals of Mississippi.
    July 31, 2007.

      Mary E. Henry, Appellant, pro se.
    Albert B. White, Madison, attorney for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. The George County Circuit Court affirmed the decision of the Mississippi Department of Employment Security’s Board of Review to deny Mary Henry the unemployment benefits she requested. Henry presents for our review evidentiary matters in the agency’s appeals process and alleges judicial impropriety. Finding that the decision of the Board is supported by substantial evidence, we affirm the decision of the circuit court.

FACTS

¶ 2. In October 2002, Henry began her employment at the George County Regional Correctional Facility. On February 2, 2005, Henry’s employment as an assistant food service manager was terminated. Henry then filed for benefits. A claims examiner interviewed Henry and Terry Rogers, an administrative assistant at the correctional facility. As a result of this investigation, the claims examiner concluded that Henry was disqualified from receiving benefits due to her employment terminating because of misconduct. Henry appealed the decision of the examiner.

¶ 3. On March 14, 2005, an appeals referee held a telephonic hearing. Henry notified the Department in writing that she would not be participating in the hearing because she was accompanying her husband to his medical appointment. Henry notified the Department that Mr. Richard Henry would represent her in the hearing. Richard Henry was a former security officer at the correctional facility, and therefore was familiar with the operations, policies, and procedures there. Preston Goff, Jr., the warden of the correctional facility, represented the employer in the hearing. Henry’s immediate supervisor, Darryl Thomen, was available to testify at first, but Warden Goff decided not to produce his testimony. The appeals referee concluded that Henry’s employment was terminated because of misconduct.

¶ 4. On April 14, 2005, the Board adopted and affirmed the factual findings and the opinion of the referee. The findings of the Board include:

On January 25, 2005, the claimant asked permission to have a specific inmate in the kitchen to assist in cleanup. Permission was granted for the inmate to help in the kitchen after all the other inmates had left. The other inmates-leave between 3:30 p.m. and 4:00 p.m. This particular inmate was brought to the kitchen between 3:30 p.m. and 4:00 p.m. on three separate days. On January 31, 2005, it was discovered the computer in the kitchen had several programs added to it. These programs were installed without authorization. All the programs were installed during times the claimant was on duty. Prior to this the claimant had been advised that no programs could be added to this computer. On February 2, 2005, the claimant was searched as she entered the facilities. This search revealed three paperback books and one bottle of flavoring. Prior to this the claimant had been advised that she could not bring anything in except cigarettes and then only if she smoked, daily medication that she might need, and a snack. Everything else is considered contraband. The claimant was discharged on February 2, 2005.

The referee’s opinion, as adopted by the Board, stated the definition of “misconduct,” citing Wheeler v. Arriola, 408 So.2d 1381 (Miss.1982). The opinion of the Board, as adopted from the referee concludes that:

the claimant was discharged for adding programs to the computer without authorization, bringing contraband to the facility, and allowing an individual in the kitchen at times when he was not supposed to be there. The claimant’s actions do rise to the level of misconduct as that term is used in the law. Therefore, the decision of the claims examiner is in order.

¶ 5. Henry then appealed to the George County Circuit Court. Henry argued that the decision of the Board was not supported by substantial evidence. She also alleged unlawful activity on the part of certain officials at the correctional facility. The circuit court found that the decision of the Board was supported by substantial evidence and that the perjury allegations Henry made were beyond the circuit court’s scope of review. Aggrieved, Henry appeals.

¶ 6. On appeal, Henry’s arguments include: that the circuit court initiated ex parte off the record communication with the employer, without Henry’s knowledge, in order to gather additional information; that the circuit court erred in not attending to Henry’s complaint that the employer’s representative, Warden Goff, committed perjury during the appeals hearing; that the referee erred in allowing the employer to withdraw a proposed witness; and that the referee erred in excluding vital documented evidence submitted by Henry. The appeal has been assigned to this Court.

DISCUSSION

1. Judicial Impropriety

¶ 7. The record is silent as to whether Henry filed a complaint with the Mississippi Commission on Judicial Performance outlining the arguments below. Henry argues that Circuit Court Judge Robert Krebs must have initiated ex parte communication with a representative of the employer. She reaches this conclusion because the circuit court’s order states that the court “having considered the matter, and having been further fully advised in the premises, finds that Plaintiffs appeal is hereby denied.” (emphasis added). She concludes that the circuit judge’s alleged ex parte contact tainted the review of Henry’s case, impugning the integrity of that court.

¶ 8. We read the statement of the trial court, that it had “been further fully advised in the premises,” to indicate that the circuit judge fully read and processed through the pleadings of the parties in addition to the record of the proceedings which had previously taken place. Other than the statement of the court, Henry advances no evidence of an ex parte communication. Henry’s argument does not present an issue for review.

¶ 9. Henry also argues that a “bizarre occurrence” took place after she appealed to the circuit court. Henry alleged in her appeal to the circuit court that Warden Goff committed perjury during the Department’s hearing. Henry argues that some unknown party in the circuit clerk’s office alerted Warden Goff to the allegation of perjury in Henry’s complaint. To substantiate this claim, Henry directs our attention to a motion for a hearing made by Warden Goff and George County Sheriff Garry Welford in response to Henry’s allegations. George County Prosecutor George Maples signed this motion as counsel for Warden Goff and Sheriff Welford. Henry further argues that any pursuit of justice will be obstructed due to a direct familial relationship between Warden Goff and Justice Court Judge M.L. Goff.

¶ 10. Court filings are public records unless such filings are excluded from the Public Records Act. See Miss.Code Ann. §§ 25-61-1 to -17 (Rev.2006). Henry’s pleading to the circuit court was a public record. Henry’s argument does not present an issue for review.

¶ 11. Henry further argues that any court should diligently address an allegation against a person that is accused of committing perjury. She argues that the appeal to the circuit court was the only chance to pursue the criminal prosecution of Warden Goff for his suspect testimony. Henry reasons that the circuit court had jurisdiction to address or prosecute the allegation of perjury pursuant to Mississippi Code Annotated section 9-7-81 (Rev.2002). Henry also argues that the court had jurisdiction to address the allegation of perjury pursuant to Mississippi Code Annotated section 71-5-531 (Supp.2006), providing that the decision of the Board will be conclusive “in the absence of fraud_” She concludes that the circuit court erred in concluding that the allegation of perjury would not be considered as it was beyond the scope of review of the matter presented.

¶ 12. In addition to the statutory provisions above, Henry also relies on Uniform Criminal Rule of Circuit Court Practice 1.01. The Uniform Criminal Rules of Circuit Court Practice have been replaced by the Uniform Rules of Circuit and County Court. The language Henry cites includes:

If it appears from the facts set forth separately in writing in or with the complaint and any supporting affidavits or supplemental sworn testimony, that there is probable cause to believe that an offense has been committed and that the defendant committed it, a warrant for the arrest of the defendant shall be issued to any person authorized by law to execute it.

URCCCP 1.01. The language of that provision, which is no longer in effect, simply reiterated the requirement that when a warrant for arrest was sought, a magistrate be informed of underlying facts and circumstances sufficient to support a finding of probable cause under the totality-of-the-circumstances standard. See Henry v. State, 486 So.2d 1209, 1218 (Miss.1986) (Robertson, J., dissenting).

¶ 13. Pursuant to Article 3, Section 27 of the Mississippi Constitution, a grand jury must return an indictment before a prosecution for a felony may be had. Williams v. State, 708 So.2d 1358, 1364(¶ 29) (Miss.1998). Absent an indictment, prosecution may commence where “proceeded against criminally by information,” or “by leave of the court for misdemeanor in office or where a defendant represented by counsel by sworn statement waives indictment.” Id. at (¶ 30) (quoting Miss. Const. art. 3, § 27). Nothing in the record indicates that Warden Goff was indicted, waived indictment, or was proceeded against criminally by information.

¶ 14. In the present case, Henry filed her appeal to the circuit court alleging that Warden Goff committed perjury in the Department’s hearing. Her filing was not in the form of an affidavit swearing that a crime had been committed. This is sufficient to terminate our analysis of this issue. We need not discuss the requirements of bringing charges against a law enforcement officer, but note the statutory provisions governing such procedures. Miss.Code Ann. § 99-3-28 (Rev.2006). The circuit court properly concluded that the criminal allegations were beyond the scope of Henry’s appeal.

2. Evidence of Henry’s Misconduct

¶ 15. Henry argues that the Department’s appeals referee erred in excluding from the record vital documents that Henry submitted into evidence. She argues that this action prevented officials at the Department, the circuit court, and this Court from reviewing this documentary evidence. Henry believes that the exclusion of these documents deprived her and her representative of credibility and reduced her representative to a hearsay witness. She also concludes that the exclusion of these documents prevented her from testifying in any capacity in the hearing. A letter Henry sent to the Department indicates that she was concerned about various documents not being included for review. In her brief before this Court, Henry lists the specific excluded documents as a letter she sent to Warden Goff and job descriptions of her position and other positions at the correctional facility.

¶ 16. The record before this Court includes the letter Henry mailed to the Department, including her two page response to Warden Goff. The record also contains various job descriptions including: correctional officer, assistant food manager, lieutenant, and sergeant. Henry’s argument does not present an issue for review. We now address the fulcrum of this appeal: whether the decision of the Board is supported by substantial evidence.

¶ 17. Henry argues that there was not substantial evidence presented to support the decision of the Board. She argues that the Department’s appeals referee erred in allowing the employer to withdraw Henry’s direct supervisor as a witness. Henry reasons that the allegations against her were not adequately supported by the Warden’s testimony alone nor by the documents he submitted as evidence. Various other points of contention are raised as error, including that the referee should have asked Henry’s representative if there was any objection to Henry’s supervisor not testifying, that there was reliance on the Warden’s alleged false statement about notifying Henry of certain policies, that there was an alleged misrepresentation concerning the level of interaction between Henry and the Warden, and that Henry was denied the right to confront her accusers by her direct supervisor not testifying.

¶ 18. The decision of the Board will not be disturbed unless it is “(1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights.” McClinton v. Miss. Dep’t of Emp. Sec., 949 So.2d 805, 807(¶ 3) (Miss.Ct.App.2006) (quoting Johnson v. Miss. Emp. Sec. Comm’n, 761 So.2d 861, 863(6) (Miss.2000)). The supreme court has further summarized the applicable standard of review, stating:

The standard of review for appealing a decision of the MESC is governed by Miss.Code Ann. Section 71-5-531 which provides: “in any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” This Court has previously stated: where there is the required substantial evidence, this Court has no authority to reverse the circuit court’s affirmance of the decision of the Board of Review. The board’s findings of fact are conclusive if supported by substantial evidence and without fraud. Therefore, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

Broome v. Miss. Emp. Sec. Comm’n, 921 So.2d 334, 337(¶ 12) (Miss.2006) (internal citations and quotations omitted).

¶ 19. When an employee is dismissed for misconduct, the former employer has the burden of demonstrating the dismissed employee is not qualified to receive benefits by advancing “substantial, clear, and convincing evidence.... ” Pannett v. Tombigbee River Valley Water Mgmt. Dist., 909 So.2d 1115, 1120(12) (Miss.2005). Misconduct is defined as:

conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

Broome, 921 So.2d at 337(¶ 14) (quoting Wheeler, 408 So.2d at 1383). Misconduct also includes “conduct that reasonable and fair minded external observers would consider a wanton disregard of the employer’s legitimate interests.” Broome, 921 at 337(¶ 14) (citation omitted).

¶ 20. Due to some of the evidence involved in the discussion below, we note this Court’s recent approach in determining the viability of certain hearsay evidence in an administrative agency proceedings. In McClinton, we stated “that if hearsay, even if not corroborated in the traditional sense, is highly probative because it has strong indicia of reliability, it can at least in many situations be substantial evidence.” McClinton, 949 So.2d at 814-15(¶ 29). Such hearsay may include properly admitted personal affidavits even where contradicted by the live testimony of a claimant, and where there is no corroborative live testimony. Id. Out of caution, as in McClinton, we examine the evidence here under the following two standards:

One is the traditional even if not oft-applied requirement that among the collection of evidence used to make findings by an administrative agency, there must be at least one item that is not uncorroborated hearsay. The remainder and even the most compelling of the evidence may be such hearsay. We also examine the evidence by following the direction that we find to be marked by current caselaw. Under that standard, we are not concerned whether there is among all the evidence at least one nugget that fits courtroom evidentiary standards. The focus instead is on whether the totality of the evidence supporting the decision is probative, reliable, and persuasive.

McClinton, 949 So.2d at 815(¶ 30).

¶ 21. Proceeding now to an examination of the evidence here, we do not address Henry’s complaint concerning her direct supervisor, Darryl Thomen, not testifying. That decision rests in the sole discretion of the employer. Such decisions may impact the quality of evidence presented, but the exclusion of Thomen from testifying alone is of no consequence. We also do not address Henry’s complaint that she was unable to confront her accusers. The constitutional right to confront accusers is applicable in the context of criminal prosecutions, not administrative agency hearings determining qualifications for benefits. Furthermore, Henry’s inability to personally confront the testimony against her-is due to her decision not to participate in the hearing.

¶22. Henry’s allegation that Warden Goff committed perjury is due to the information collected by the claim’s examiner. Henry argues that Warden Goff testified that he informed Henry of the correctional facility policies when she was hired. Henry argues that Goff was not the Warden at the time she was hired. The language in that report states in part: “Policy: no [contraband] items allowed and failure to adhere to policy will result in termination: told to claimant verbally at hire by warden along with what is allowed on the [premises].” The report also reflects that Henry denied being told about thé policy when hired. However, Henry “admitted to being verbally warned before ^no date) for bringing in outside food (by [Warden Goff]) but was never told she could be fired.”

¶ 23. The statements to which Henry directs our attention were given by Terry Rogers, an administrative assistant. After a careful reading of the record, we are unable to find any instance that Warden Goff states that he told Henry at the time she was hired about the policies of the correctional facility. The allegation of perjury is of no consequence to this discussion. We now address each reason for Henry’s employment termination, whether each reason was supported by substantial evidence, and whether the aggregate of these policy violations qualifies as misconduct.

¶ 24. At the appeal hearing, an interoffice memorandum from Warden Goff to Henry concerning the reasons for her termination was properly admitted. The employer presented four reasons why Henry’s employment was terminated. Warden Goff testified that he personally investigated each reason for Henry’s termination. He further testified that he filled out incident reports detailing the policy violations but did not submit that documentation to the Department. Warden Goff testified that the decision to terminate Henry was the result of a disciplinary meeting between himself, Thomen, who was Henry’s direct supervisor, and two other staff members of the correctional facility. Warden Goff testified that these four staff members comprised a hearing committee. He testified that the decision to terminate Henry was unanimous. Henry’s response to Warden Goff rebutting the reasons for her termination was submitted to the appeals referee and made part of the record available for the Board to review.

¶ 25. There was some discrepancy concerning documentation submitted to the appeals referee. Henry had obtained some of Warden Goffs handwritten notes. Henry’s representative stated that the Warden must have forgotten the notes in a locked dry goods storage area the day prior to Henry’s disciplinary hearing. Warden Goff testified that the notes were part of his personal notebook. He recalled having possession of the notebook just minutes before Henry’s disciplinary hearing. He suggested that Henry must have wrongfully taken them off of his desk on the day of the disciplinary hearing. The notes were submitted and became part of the record. Their content has no specific contribution to an examination of the evidence. Henry’s letter in response to the disciplinary hearing is not a sworn statement. We now discuss the evidence.

Failure to Adequately Supervise Inmates

¶ 26. The first reason listed for Henry’s employment termination was that on January 28, 2005, food and other items were taken out of the kitchen by inmates during Henry’s shift. Warden Goff testified that Henry was the kitchen supervisor during the time items were taken out of the kitchen by inmates. The items were located during a shakedown and included raw chicken and tuna meat. The Warden testified that Henry’s primary responsibility was to supervise the inmates, including maintaining a visual contact with the inmates to prevent items from being taken out of the kitchen. Henry was not authorized to physically search inmates but was equipped with a radio to call in a security guard at any time Henry suspected something was amiss. The Warden testified that there was a security control room including cameras monitored by a security officer. One of the thirty-two cameras monitored the kitchen. Warden Goffs testimony was that Henry was not exhibiting the required degree of attention to supervising the inmates.

¶27. Henry’s job description included that she was “responsible for the supervision of the overall food service program in the absence of the Food Service Director.” Henry’s representative at the Department’s hearing argued that Henry did not have any security duties in her position. The argument presented was that Henry, a non-security employee, was being held responsible for oversights on the part of the security officers on duty. In addition, Henry stated in her rebuttal letter to Warden Goff that some of her duties prevented her from constantly observing inmate kitchen workers. Henry described these additional duties included tasks such as opening locked cabinets to provide needed supplies to the worker inmates and storing leftover food from meals. Between six to twelve inmate workers were assigned to the kitchen.

Installing Unauthorized Computer Programs

¶ 28. The second disciplinary item was that on January 31, 2005, several unauthorized programs were found on the computer in the kitchen office. Warden Goff testified that the computer in the food supervisor’s office became dysfunctional due to computer games being placed onto the computer. He testified that Henry and other kitchen staff were warned that at no time should any programs be placed on the computer. Inmates used the computer to complete inventory and other reports. Warden Goff testified that after Henry had received warnings about unauthorized computer use, a history report was generated from the computer. The Warden testified that the report reflected that certain unauthorized games were installed on days Henry had worked. The Warden testified that during the disciplinary hearing Henry admitted to bringing the games into the facility.

¶ 29. Henry’s representative argued that Henry was only a “user” on the computer which prevented her from installing programs on the machine. Henry’s representative communicated that Henry did admit that she brought in a computer program to trade with another employee. The reason for bringing the program into the facility was to prevent the disk from possibly being destroyed from heat had she left the disk in her car. In her rebuttal letter to the warden, Henry stated that only a “system administrator” had the ability to install programs. She denied ever having programs that were not used for work or that were approved. She stated that the computer in question belonged to Thomen, and that an inmate had been given a password to the computer for use. She concludes that another correctional facility staff person, Lieutenant Tillman, must have installed the program on the computer.

Unauthorized Use of Inmate Worker

¶ 30. The third disciplinary item was that between January 28-30, 2005, Henry allowed an inmate into the kitchen who was not authorized to be in that location at that time. Henry requested permission that a particular inmate be available to help clean the kitchen. Warden Goff testified that Thomen agreed to allow a particular inmate to assist in cleaning the kitchen after 5:00 p.m., but not before that time. Warden Goff testified that the inmate was allowed in the kitchen sometime between 3:00 p.m. to 4:00 p.m., one to two hours prior to the authorized time.

¶ 31. Henry’s representative stated that Henry requested that Thomen allow a certain inmate to help out with cleaning the kitchen because the inmate cleaned the kitchen well. He stated that Henry would have already left work at 5 p.m., so having the inmate in the kitchen after this time would not make any sense. Being a for-raer guard at the correctional facility, Henry’s representative testified that the control room officer, who would control access to and from the kitchen, is furnished with an inmate worker schedule. Henry’s representative was unclear as to who exactly furnished the work schedule.

¶ 32. Henry stated in her rebuttal letter that Thomen informed her that the inmate could clean after the other inmate kitchen workers departed the kitchen. Henry’s rebuttal states that “this is normally from [3:00 p.m. to 4:50 p.m.].” Henry asserts in her rebuttal that she has no control over when the inmate kitchen workers show up at the kitchen. Henry has no control over the access doors to and from the kitchen, making it impossible for her to allow the inmate into or out of the kitchen.

Possession of Unauthorized Items

¶ 33. The fourth disciplinary item was that on February 2, 2005, unauthorized items were found on Henry’s person while entering the correctional facility. These items included three paperback books and one bottle of flavoring. Henry was allowed to enter the facility in possession of these items but was later terminated in part because of possessing these items. Warden Goff testified that he personally instructed all kitchen staff that the only items they were allowed to bring into the facility included cigarettes for personal use and required daily medication for personal use. The interoffice memo stated that Warden Goff instructed kitchen staff that they could also bring in a snack.

¶ 34. Henry denies that Warden Goff ever informed her that the only authorized items to bring into the facility included cigarettes, medicine, and a snack. Henry concedes that she brought in two books, a magazine, and a bottle of flavoring. She argues that Warden Goff targeted her, as other employees are not reprimanded for bringing in a newspaper and coffee flavoring condiments.

¶ 35. The Board considered this evidence and decided that Henry was terminated for misconduct. Of significance is that Henry never submitted any sworn statement for the Board to review. Despite the contradictory nature of evidence, the Board is the final fact finder. We must not reweigh this evidence, but determine if the decision of the Board is supported with substantial evidence.

¶ 36. There was evidence that Henry was not supervising the inmate workers as closely as required. There was also evidence that Henry possessed unauthorized computer programs at work, possibly causing them to be used on a computer. It is unclear whether Henry had any control over notifying the control room which time a particular inmate would arrive to clean the kitchen. By Henry’s own admission she brought items into the facility which Warden Goff testified he instructed Henry not to bring into the facility. As the fact finder, the Board weighs the credibility given to the testimony and evidence. When viewed together, the totality of the incidents suffice as misconduct. The decision of the Board is supported by substantial evidence.

¶ 37. THE JUDGMENT OF THE GEORGE COUNTY CIRCUIT COURT IS AFFIRMED.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.

      . Henry cites section 9-7-1 in her brief. That section is inapplicable to her argument as it relates to judicial elections and terms of court.


author: ROBERTS, J.,

text:
    Maria L. SWANEY, Appellant v. Richard C. SWANEY, Appellee.
    No. 2006-CA-01558-COA.
    Court of Appeals of Mississippi.
    July 31, 2007.
    William L. Ducker, Purvis, attorney for appellant.

      Allen Flowers, Hattiesburg, attorney for appellee.
    Before KING, C.J., GRIFFIS, BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

STATEMENT OF THE CASE

¶ 1. Richard and Maria Swaney were married in January 2000 in the State of Ohio. Unhappy with the current state of then- marriage, Maria in 2003 left the marital home and came to Mississippi. Richard soon after filed for divorce in Ohio; however, despite attempts to notice Maria at her last known pre-marriage address, she did not attend the hearing. The Au-glaize County Common Pleas Court, Domestic Relations Division (Ohio court) granted Richard a divorce and made a property division. Subsequent to Richard finding Maria in Mississippi and collecting his vehicle awarded to him by the Ohio court, Maria attacked the Ohio judgment in the Chancery Court of Lamar County on jurisdictional grounds, and concurrently attacked jurisdiction in Ohio. The Ohio court ruled against Maria on the merits of her claim, and, in turn, the chancery court overruled Maria’s motion attacking jurisdiction based upon the doctrine of res judi-cata. From this order, Maria appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Richard and Maria were married on January 23, 2000, in Auglaize County Ohio. No children were born to the marriage. The parties separated on or about September 19, 2003, when Maria left the marital home for parts unknown. As later discovered, she moved to Mississippi following her flight from Ohio. However, Richard, at all relevant times, would remain an Ohio resident.

¶ 3. Following Maria’s abandonment of the marital residence, Richard filed for divorce in the Auglaize County Common Pleas Court, Domestic Relations Division of Wapakoneta, Ohio (Ohio court). The clerk of courts in Ohio attempted certified mail service to Maria’s last known address, a post office box in Ohio, but it was returned as unclaimed. A second attempt was made to serve Maria at her post office box by regular mail. This service was not returned prior to the divorce hearing. After Maria again failed to respond, service was presumed effective under Ohio law. Following a sua sponte continuance of the matter from January 6, 2004, a trial was held on February 2, 2004. Maria was neither present nor represented by counsel. The Ohio court subsequently entered its judgment of divorce on February 13, 2004. Among the property division of the parties, Richard was awarded a 2001 GMC Sierra free and clear of any claim of Maria, as well as a judgment of $29,300 against Maria. Richard claimed the 2001 GMC Sierra was titled in his name.

¶ 4. Richard would later locate Maria in Lumberton, Mississippi, in April 2004. After locating Maria, Richard came to Mississippi, personally handed Maria a copy of the Ohio judgment of divorce, and retrieved his 2001 GMC Sierra. Maria then filed her complaint for collateral attack on foreign judgment in the Chancery Court of Lamar County on July 8, 2004. Maria claimed that she had not been properly served in the divorce action in either Ohio or Mississippi, and, as a result, the Ohio court lacked in personam jurisdiction. Additionally, she claimed that Richard failed to properly register the Ohio judgment before attempting self-help repossession. Finally, Maria claimed she was entitled to have her complaint for divorce heard and litigated in Mississippi. Richard responded on September 2, 2004, and claimed the chancery court did not have subject matter over the claim or personal jurisdiction over him. He further objected on the basis of res judicata.

¶ 5. Before the Mississippi action would find its way to a hearing, the parties’s focus would return to Ohio. On September 20, 2004, the clerk of the Ohio court noticed failure of service in that those pre-divorce notices sent to Maria were returned due to the post office box being closed with no forwarding address. Richard filed his motion to set aside failure of service with the Ohio court on October 14, 2004. Soon after, Maria’s Mississippi complaint came on for hearing on November 8, 2004. While the details of this hearing are not within the record, in a subsequent order of the chancery court, the chancellor stated that, over disagreement by Maria, the court “directed [Maria] to suspend litigation in Mississippi, pending her making an appearance in the state of Ohio on a Petition to re-consider based upon contested service of process.”

¶ 6. By order filed November 23, 2004, the Ohio court denied Richard’s October 14, 2004 motion to set aside failure of service. In doing so, the Ohio court stated that the administrative act by the clerk of noticing failure of service did not affect the court’s judgment of divorce, and that the judgment would stand until someone challenged jurisdiction. At the directive of a Mississippi chancery court and subtle push of the Ohio court, Maria filed her motion contesting jurisdiction in the Ohio court on January 12, 2005. Following Richard’s response, a hearing on the motion was set for February 28, 2005. At the request of Maria, the hearing was continued to May 17, 2005. Maria failed to appear, in person or through representation. Subsequent to the May 17 hearing, the Ohio court, by order filed May 25, 2005, dismissed Maria’s motion for failure to prosecute, and further dismissed it upon the merits. As such, the Ohio court ordered “that the original Decree of Divorce stands.”

¶ 7. Maria then filed an amended motion for collateral attack on foreign judgment with the Chancery Court of Lamar County on February 8, 2006, in which she detailed the final disposition of the Ohio court, and again requested the chancery court not to recognize the Ohio divorce and resultant division of marital property. Following Richard’s response, a hearing was held on Maria’s amended motion. In an August 24, 2006 order, the chancery court overruled Maria’s motion as it reasoned, based upon the decision of the Ohio court, that the matter was barred by the doctrine of res judicata. Maria’s appeal followed.

ANALYSIS

¶ 8. Although neither party argued this point, Maria’s ability to collaterally attack the Ohio judgment in this state would seem to be premature. See Schwartz v. Hynum, 933 So.2d 1039 (¶ 10) (Miss.Ct.App.2006) (stating that upon the filing of notice of enrollment the defendant then had twenty days to contest it). First, Maria’s collateral attack of the Ohio judgment is not one of those actions that are expressly entitled to, at the trial court’s discretion, a declaratory judgment. See M.R.C.P. 57. Secondly, there is an issue of the justiciability of Maria’s attack. Distinct from the typical thresholds of personal and subject matter jurisdiction, claims must present “controversies that are definite and concrete, that touch the relations of real parties having antagonistic interests.” 1 Jeffrey Jackson, Mississippi Civil Procedure § 1:21 (1999). As stated by our supreme court, “[i]t is one of the fundamentals of judicial procedure that courts will not undertake to decide abstract questions when there is no actual justiciable issue between the purported litigants.” Ladner v. Fisher, 269 So.2d 633, 634 (Miss.1972). One component of a justiciable claim is ripeness. Jackson, supra, at 1:22. Concerning ripeness, aside from those claims brought under Rule 57, “[a] cause of action must exist and be complete before an action can be commenced, and, when a suit is begun before the cause of action arises, it will generally be dismissed if proper objection is taken.” State ex rel. Holmes v. Griffin, 667 So.2d 1319, 1325 (Miss.1995) (quoting Euclid-Mississippi v. Western Casualty & Surety Co., 249 Miss. 547, 163 So.2d 676, 679 (Miss.1964)).

¶ 9. At the time of appeal, it appears from the record that Richard had not attempted in any way to enforce his Ohio judgment in Mississippi nor attempted to enroll the Ohio judgment through the process provided for in Mississippi Code Annotated Sections 11-7-301-309 (Rev.2004). While there does not appear to be precedent expressly speaking to this issue, it is clear that a cause of action attacking the judgment of a foreign state is not ripe until, and if, enrollment of that judgment is attempted. As stated by one commentator, “[i]t is not enough that a controversy might one day erupt; plaintiff must show that it has already done so, thereby presenting a legal issue in a concrete context.” Jackson, supra, at 1:22 (citations omitted). However, no objection was made by Richard to the proceedings on justiciability grounds. Therefore, as Richard raised no objection, and the trial court did not dismiss the action upon its own motion, we proceed to reach the merits of Maria’s appeal.

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING MARIA’S MOTION FOR COLLATERAL ATTACK ON FOREIGN JUDGMENT.

¶ 10. Within her argument of her sole issue, Maria alleges several points of error. These include that the trial court erred in overruling the aforementioned motion, that the trial court erred in failing to hold a hearing on the merits of her claim, that the trial court erred in suspending her collateral attack and directing her to challenge personal jurisdiction in Ohio, and that Richard obtained the judgment of divorce under false pretenses. However, in Maria’s initial complaint collaterally attacking the Ohio judgment and her amended motion for collateral attack, she only raised the issue of lack of personal jurisdiction of the Ohio court. This Court has long held that issues not presented to the trial court are deemed waived on appeal. Williams v. Gamble, 912 So.2d 1053(¶ 30) (Miss.Ct.App.2005) (citing Triplett v. City of Vicksburg, 758 So.2d 399,(¶ 9) (Miss.2000); Shaw v. Shaw, 603 So.2d 287, 292 (Miss.1992)). Therefore, we will only address Maria’s claim that the trial court erred in overruling her motion.

¶ 11. The trial court overruled Maria’s motion based upon the doctrine of res judicata. It noted the Ohio court had reached a final decision regarding the issue of personal jurisdiction and, as a result, affirmed its judgment of divorce. The appropriateness of application of the doctrine of res judicata is a question of law. Global Oceanic Enters. v. Hynum, 857 So.2d 659(¶ 8) (Miss.2003). As such, our review is de novo. Id.

¶ 12. Res judicata bars all issues that were, or could have been, decided in the first cause of action. Id. at (¶ 11). This includes questions of jurisdiction over the subject matter or parties involved. Id. In determining

whether the judgment amounts to res judicata on the question of the jurisdiction of the court which rendered it over the person of the respondent, it is of no moment that the appearance was a special one expressly saving any submission to such jurisdiction. That fact would be important upon appeal from the judgment. ...

Id. at (¶ 11) (quoting Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 524-25, 51 S.Ct. 517, 75 L.Ed. 1244 (1931)). A prior challenge to the jurisdictional issue is required in order for a subsequent court to apply res judicata. Global Oceanic Enters., 857 So.2d at (¶ 12).

¶ 13. When presented with a complaint and summons of a foreign state, a defendant has three options available. Id.

First he may ignore the complaint and summons, and, then if a default judgment is issued against him, he may challenge that judgment on jurisdictional grounds in a collateral proceeding when the plaintiff seeks to enforce the judgment. Second, he may voluntarily waive any lack of personal jurisdiction and submit to the distant court’s jurisdiction. And third, he may submit to the jurisdiction of the court for the limited purpose of challenging jurisdiction.

Id. (quoting Department of Human Servs. v. Shelnut, 772 So.2d 1041(¶ 14) (Miss.2000)). If the defendant elects to proceed with the third option the foreign court’s determination on the issue of jurisdiction is binding. Id.

¶ 14. In her initial complaint collaterally attacking the Ohio court’s judgment Maria claimed that following her separation from Richard she established a residence in Picayune, Mississippi on September 21, 2003, that Richard did not know where she was until April 2004, and that the Ohio court lacked personal jurisdiction over her as she “was neither served in the State of Ohio nor in the State of Mississippi.” Following a hearing, and being advised of the proceedings in Ohio, the chancery court directed Maria to contest jurisdiction in Ohio, and it suspended litigation in Mississippi pending the result. Maria reluctantly complied.

¶ 15. In her motion contesting jurisdiction filed in the Ohio court, Maria argued that the Ohio court lacked personal jurisdiction over her as she was never properly served. She stated that following her move to Picayune, she moved to Lumber-ton, Mississippi. She claimed that she was a resident of Lumberton, and had been for more than sixty days prior to any orders of the Ohio court. She further argued that, as a consequence, the judgment of divorce, and all subsequent orders, were void. A hearing was initially scheduled for February 28, 2005. Maria called the Ohio court and indicated that the current court date did not give her enough time to make those arrangements necessary to attend the hearing, and she asked for a continuance. The Ohio court obliged Maria and continued the matter until May 17, 2005. Maria failed to attend the hearing, nor was she represented by counsel. The Ohio court not only dismissed Maria’s motion based upon failure to prosecute, but also on the merits of her claim.

The courts of this State are bound to give full faith and credit to a judgment of a sister state. This rule is subject to the principle that the courts of this State are not required to recognize the judgment of another state where the judgment was rendered by a court without jurisdiction or where it has been obtained by extrinsic fraud. This principle is in turn subject to the limitation that if the court of the state which rendered the judgment has expressly litigated the jurisdictional question or the matter of fraud that the determination becomes res judicata on this point and is, itself, protected by the full faith and credit clause of the Constitution of the United States, Article IV, § 1. Therefore, a jurisdictional question cannot be relitigated a second time in another state.

Global Oceanic Enters., 857 So.2d at (¶ 18) (citing Galbraith & Dickens Aviation Ins. Agency v. Gulf Coast Aircraft Sales, Inc., 396 So.2d 19, 21 (Miss.1981)). Through her motion contesting jurisdiction in the Ohio court, Maria had her opportunity to fully present her defense on her claim of lack of personal jurisdiction. After requesting a continuance for the purposes of preparation, she failed to attend the hearing on her motion. Nevertheless, the Ohio court ruled that it did have jurisdiction and dismissed Maria’s motion on its merits. Any further attempt to challenge the issue of personal jurisdiction would be barred. In accordance with Global Oceanic Enters., and similar precedent, the trial court did not err in overruling Maria’s motion collaterally attacking the judgment of the Ohio court on the grounds of lack of personal jurisdiction. As such, we affirm.

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

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, 33., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.