author: COBB, Presiding Justice,

text:
    Sarenthia CHANNEL; Peggy Crist; Theresa Edwards; Patricia Guthrie; Jane Hamilton; Helen Heard; Alice McCraven; Bertha Mixon; Jennie Parker; James Reed, Jr.; Glenda Rivers; Molly Robinson; Pamela Robinson; Karen Thornton; Virginia Townsend; Vera Wells; Mary Whittington; Linda Williams; and Peggy Winters v. Paul Kelly LOYACONO and E. Scott Verhine.
    No. 2005-CA-01395-SCT.
    Supreme Court of Mississippi.
    April 19, 2007.

      Ronald W. Lewis, David G. Hill, David Minyard, Oxford, attorneys for appellants.
    Glenn Gates Taylor, Christy Michelle Sparks, Ridgeland, attorneys for appellees.
    Before COBB, P.J., EASLEY and GRAVES, JJ.

      . Those that testified included Peggy Crist, Theresa Edwards, Sarenthia Channel, James Reed, Jr., Patricia Guthrie, Jane Hamilton, Helen Heard, Alice McRaven, Bertha Mixon, Glenda Rivers, Molly Robinson, Vera Wells, Mary Whittington, Linda Williams, Peggy Winters, and Pamela Robinson.

   COBB, Presiding Justice,

for the Court.

¶ 1. The Hinds County Circuit Court, First Judicial District, dismissed with prejudice the plaintiffs’ claims of legal malpractice against defendant attorneys Paul Kelly Loyacono and E. Scott Ver-hine. In granting the defendants’ Motion to Dismiss, or Alternatively, for Summary Judgment the circuit court found that the plaintiffs’ claims were barred by: (1) the statute of limitations, (2) res judicata and collateral estoppel, (3) waiver and estop-pel, (4) accord and satisfaction, and (5) settlement and release. We affirm in part and reverse and remand in part.

FACTS

¶ 2. In February and March 2000, Loya-cono and Verhine, attorneys in Vicksburg, contracted with approximately fifty individuals to represent them against American Home Products (AHP) for alleged injuries resulting from the use of certain diet drugs produced by AHP, including “Fen-phen,” Pondimin, and Redux. These contracts authorized Loyacono and Verhine to hire additional counsel to litigate the claims. Loyacono and Verhine associated the law firm of Varas and Morgan to assist with the AHP claims in May 2000. In this at-will association, Loyacono and Verhine never transferred to Varas and Morgan any of the representation contracts, and Varas and Morgan never entered into representation contracts with the clients.

¶ 3. Varas and Morgan filed lawsuits against AHP on behalf of numerous plaintiffs, including the clients of Loyacono and Verhine. Loyacono and Verhine became dissatisfied with the way Varas and Morgan were handling the claims. In November 2000, Loyacono and Verhine decided to disassociate from Varas and Morgan and deal directly with AHP. Varas and Morgan were given written notice of the termination of the association on January 4, 2001.

¶ 4. In late November and early December 2000, Loyacono and Verhine began settlement discussions with AHP. At that time, Loyacono and Verhine obtained settlement offers from AHP and began meeting with each client to discuss the settlement offers. Loyacono and Verhine explained to each client that the client had the option of accepting the offer or rejecting the settlement offer and holding out for more money and possibly a trial. The clients were advised of the risks and benefits of refusing the settlement offer, including the possibility that the offer would not be made again, that their claims could take months or even years to be resolved, and that representatives for AHP had mentioned the possibility of bankruptcy. Loyacono and Verhine also made clear that they would continue to pursue the claims of the clients who chose not to settle.

¶ 5. Some clients chose not to accept the settlement offer, and Loyacono and Ver-hine went back to AHP demanding higher settlements. Loyacono and Verhine were able to get higher offers which some of these clients found acceptable. Some of the clients refused the new offer and rejected settlement altogether. Ultimately, all of the plaintiffs in this action (“the clients”) settled. Each of the clients received their funds on January 26, 2001.

¶ 6. Varas and Morgan contacted the settling clients of Loyacono and Verhine. In late December 2000, Varas and Morgan began their effort to get the clients to fire Loyacono and Verhine and allow Varas and Morgan to represent them. Varas and Morgan also wanted to find out how much money had been offered to each of the clients by AHP and tried to persuade the clients to reject the settlement offers.

¶ 7. In late January 2001, Varas and Morgan filed motions in two of the prior actions, Green and Williams, see n. 2 supra, challenging Loyacono and Verhine’s right to represent the clients and the validity of the settlement agreements negotiated by Loyacono and Verhine. An identical motion was filed in the third of the prior actions, Harried, in December of 2003. The motions accused Loyacono and Ver-hine of acting dishonestly, negligently, and fraudulently in negotiating the settlements.

¶8. A hearing was held in the circuit court on January 18, 2002, regarding the motions in Green and Williams. The hearing in Harried was held in March of 2004. Most of the clients attended these hearings and challenged the validity of the settlement agreements. Many of the clients actually testified at the hearings. While all of the clients testified that Loya-cono and Verhine had acted dishonestly, negligently, and fraudulently in negotiating their settlements, each of them testified that they had signed their settlement agreements, received the proceeds, and considered their cases settled. None of the clients offered to return or refund any of the proceeds. The signed settlement agreements, receipt of settlement funds agreements, and representation agreements with Loyacono and Verhine were entered into evidence.

¶ 9. The circuit court ruled on the motions in Green and Williams in March 2004. It held that Loyacono and Verhine were the clients’ attorneys; that Loyacono and Verhine negotiated the settlement agreements; and that the clients knowingly and voluntarily agreed to and signed the settlement agreements, received the monies that were under the settlement agreements, and considered their respective claims settled. The same ruling was made on the Harried motion in April 2004. Pursuant to Rule 54(b), final judgment was entered on each of the motions. The clients did not appeal.

¶ 10. The legal malpractice action presently before this Court was filed in Hinds County on January 5, 2004. The clients asserted claims against Loyacono and Ver-hine for legal malpractice, negligence, and conspiracy in connection with the settlement agreements. On June 15, 2004, Loy-acono and Verhine filed their Motion to Dismiss, or, Alternatively, for Summary Judgment on the grounds that, both as a matter of law and undisputed fact, that the clients’ claims were barred by the statute of limitations, res judicata, collateral estop-pel, waiver and estoppel, accord and satisfaction, and settlement and release.

¶ 11. The Circuit Court of the First Judicial District of Hinds County held that any alleged malpractice, fraud, or negligence by Loyacono and Verhine would have occurred in November and December 2000 when Loyacono and Verhine negotiated and obtained settlement offers and presented them to the clients for acceptance or rejection; the clients presented no evidence to show that Loyacono and Verhine committed any negligent or fraudulent acts or omissions after the conclusion of the settlement negotiations and presentations in December 2000; and that the clients’ claims were without merit and were barred by the defenses raised by Loyacono and Verhine. The clients appeal from the judgment of the circuit court.

STANDARD OF REVIEW

¶ 12. It is well settled that this Court applies a de novo standard of review to the grant or denial of summary judgment by a trial court. Leffler v. Sharp, 891 So.2d 152, 156 (Miss.2004). When the evidence is considered in the light most favorable to the nonmoving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Miss. R. Civ. P. 56(c); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997).

ANALYSIS

I. Statute of Limitations

¶ 13. It is undisputed that § 15-1-49 of the Mississippi Code applies to this action. “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” Miss.Code Ann. § 15-1-49(1) (Rev. 2003). What is disputed in this case is when exactly the three-year statute of limitations began to run. In other words, when did the cause of action in this case “accrue?”

¶ 14. The plaintiffs set forth several different arguments contending that the action filed January 5, 2004, was within the statute of limitations. We address each in turn.

A. The “continuous representation rule”

¶ 15. The plaintiffs argue that in Mississippi, the rule for an attorney malpractice case is that the statute of limitations does not begin to run against the clients’ claims until the representation regarding the transaction at issue is complete. To back up this argument, they cite Stevens v. Lake, 615 So.2d 1177, 1182 (Miss.1993), stating that “the premise of ‘the continuous representation rule’ is that ‘the cause of action in an attorney malpractice case should not accrue until the attorney’s representation concerning a particular transaction is terminated.’ ” Applying this rule, the plaintiffs contend that the representation concerning the AHP settlements would not have been complete until the clients received the settlement funds on January 26, 2001, thus bringing the action filed January 5, 2004 within the three-year statute of limitations.

¶ 16. AVhile the plaintiffs’ argument does make sense, this Court has never given any real indication that it follows the “continuous representation rule.” It is true that Stevens does discuss the rule, but the discussion consisted of no more than an explanation of what the rule is and why it could not apply to the facts presented in that case. No Mississippi authority was cited regarding the rule, and the Court drew its explanation of the rule from a treatise. This rule was also cited in Champluvier v. Beck, 909 So.2d 1061, 1063 (Miss.2004). However, just as Stevens did, Champluvier merely pointed out that the rule could not apply to the set of facts in that case without giving any indication that the rule has ever been applied in Mississippi.

¶ 17. A review of the cases reveals that Mississippi does not follow the “continuous representation rule.” While the Court has briefly discussed the rule when the argument has been presented, it is clear that this Court follows the discovery rule.

B. The discovery rule

¶ 18. The plaintiffs also point out that this Court has recognized the discovery rule in legal malpractice cases. According to plaintiffs, if the Court applies the discovery rule in this case,- the statute of limitations would not have started running until January 26, 2001, when they received their settlement proceeds.

¶ 19. In Smith v. Sneed, 638 So.2d 1252, 1253 (Miss.1994), this Court held that “the statute of limitations in a legal malpractice action properly begins to run on the date the client learns or through the exercise of reasonable diligence should learn of the negligence of his lawyer.” This Court has said that the discovery rule is to be applied when “the plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question,” or it may be applied “when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.” McCain v. Memphis Hardwood Flooring Co., 725 So.2d 788, 794 (Miss.1998) (citing Sneed, 638 So.2d at 1257; Staheli v. Smith, 548 So.2d 1299, 1303 (Miss.1989)). Given this precedent, it must be determined whether the alleged injury in this case was secretive or inherently undiscoverable, or in the alternative, whether the plaintiffs, as laymen, could not have reasonably been expected to perceive the injury at the time of the alleged wrongful act.

¶ 20. The “secretive or inherently undiscoverable” standard is applicable where there is some piece of physical evidence that is the subject of the test. See Staheli 548 So.2d at 1303. There is no allegation in this case that there was any physical evidence that was undiscoverable. Therefore, we will focus on the layman standard.

¶ 21. In Sneed, this Court explained that the discovery rule was the proper test for deciding when the statute of limitations for a legal malpractice action begins to run. This Court explained:

An attorney is obligated to use skill, prudence, and diligence commonly exercised by practitioners of his profession. The California Supreme Court has recognized that a “corollary to this expertise is the inability of the layman to detect its misapplication; the client may not recognize the negligence of the professional when he sees it.” Neel v. Magana, Olney, Cathcart & Gelfand, 6 Cal.3d 176, 188, 491 P.2d 421, 428, 98 Cal.Rptr. 837, 844 (1971). A Texas commentator states: “It is unrealistic to expect a layman to perceive an injury at the time of the negligent act or omission of his attorney.” Ward, Legal Malpractice in Texas, 19 S. TexL.J. 587, 613 (1978).

Sneed, 638 So.2d at 1257 (quoting Willis v. Maverick, 760 S.W.2d 642, 645-46 (Tex.1988)). In Sneed we went on to say that if the discovery rule were not followed, “the client could protect himself fully only by ascertaining malpractice at the moment of its incidence. To do so, he would have to hire a second attorney to observe the work of the first. This costly and impractical solution would but serve to undermine the confidential relationship between attorney and client.” Id. at 1257-58.

¶ 22. The plaintiffs claim that they relied on the judgment, loyalty, integrity, truthfulness, and competence of Loyacono and Verhine in handling the claims against AHP and that because Loyacono and Ver-hine misled them, they had insufficient information to know of the alleged wrongdoing at the time Loyacono and Verhine supposedly committed malpractice. However, they contradict themselves by stating that on December 27 and 28, 2000, worried that they had been misled by Loyacono and Verhine concerning the AHP settlements, several of the plaintiffs contacted Keith Morgan. This shows that some of the plaintiffs not only had sufficient information to know of an alleged wrongdoing, but that they actually suspected wrongdoing and sought the advice of another lawyer. The circuit court stated in its findings of fact that in late December 2000, Varas and Morgan actually contacted several of the plaintiffs, tried to get them to fire Loyacono and Verhine and retain the services of Varas and Morgan, tried to find out how much money AHP had offered the plaintiffs, and tried to persuade the clients to reject the settlement offers.

¶23. Given these facts, some of the plaintiffs, as laymen, not only suspected wrongdoing by Loyacono and Verhine in December 2000, but they had strong enough feelings about it to contact another attorney. If this was not enough to be considered notice of wrongdoing, then the actions taken by Varas and Morgan in contacting the plaintiffs and trying to convince them to leave Loyacono and Verhine should have been enough to put those plaintiffs on notice. For these plaintiffs, any alleged wrongdoing by Loyacono and Verhine was “discovered” for the purposes of the discovery rule in December 2000, and those claims would be barred by the statute of limitations.

¶ 24. However, this may not be the case with all of the plaintiffs. The record points out that “Varas and Morgan attempted to contact many of ... [the] clients” and that “several plaintiffs called attorney Keith Morgan.” There is never any mention of which of the plaintiffs contacted Keith Morgan or were contacted by Varas and Morgan. Therefore, the record does not establish that all of the plaintiffs had notice of any of the alleged wrongdoing prior to January 1, 2001. The Hinds County Circuit Court was closed from January 1, 2004, through January 4, 2004. If there are any plaintiffs who did not have notice of the alleged wrongdoing of Loya-cono and Verhine prior to January 1, 2001, then the claims of those plaintiffs would not be barred by the statute of limitations.

¶ 25. The testimony that took place on January 18, 2002, does show that two specific plaintiffs had notice of alleged wrongdoing by Loyacono and Verhine for the purposes of the discovery rule. Sarenthia Channel and Molly Robinson both testified that before signing their settlement agreements, they suspected Loyacono and Ver-hine of wrongdoing. Sarenthia Channel even testified that she contacted Keith Morgan and that he advised her not to sign the settlement agreement which had been negotiated by Loyacono and Verhine. She further testified that she told Loyaco-no “to his face” that she did not trust him. Molly Robinson made it clear that she felt that she was being misrepresented before she signed her settlement agreement as well. Because plaintiffs Channel and Robinson believed Loyacono and Verhine were guilty of wrongdoing in December of 2000, the statute of limitations began to run as to their legal malpractice claims at that time, and their claims are barred.

¶ 26. While other plaintiffs who testified at this hearing made clear that they felt as though they had been misled by Loyacono and Verhine, there was no specific reference to the time at which the knowledge of alleged wrongdoing was acquired. Therefore, this Court cannot say whether these plaintiffs had notice of any alleged wrongdoing by Loyacono and Ver-hine before January 1, 2001. This issue must be tried on remand.

C. Fraudulent concealment

¶27. Finally, the plaintiffs claim that the statute of limitations was tolled in this case because Loyacono and Verhine fraudulently concealed their negligence. Restating the discovery standard from Smith v. Sneed, supra, the plaintiffs state that because of Loyacono and Verhine’s fraudulent concealment, they were unable to learn of the alleged malpractice before January 2001.

¶ 28. “[Fraudulent concealment of a cause of action tolls its statute of limitations.” Robinson v. Cobb, 763 So.2d 883, 887 (Miss.2000) (quoting Myers v. Guardian Life Ins. Co. of America, Inc., 5 F.Supp.2d 423, 431 (N.D.Miss.1998)). This Court went on to say that “[t]he fraudulent concealment doctrine ‘applies to any cause of action.’ ” Id. This Court recently addressed the fraudulent concealment doctrine in Stephens v. Equitable Life Assurance Society of U.S., 850 So.2d 78, 83-85 (Miss.2003).

¶ 29. In Stephens, this Court cited Miss.Code Ann. § 15-l-67(Rev. 2003), stating: “If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.” Id. at 83. The Court then laid out a two-part test for determining whether there has been fraudulent concealment: the party purporting that there was fraudulent concealment must show that “(1) some affirmative act or conduct was done and prevented discovery of a claim, and (2) and due diligence was performed on their part to discover it.” Id. at 84. The affirmative act must in fact be designed to prevent the discovery of the claim. Robinson, 763 So.2d at 887 (quoting Reich v. Jesco, Inc., 526 So.2d 550, 552 (Miss.1988)).

¶ 30. The plaintiffs’ claim of fraudulent concealment is hollow. In its conclusions of law, the circuit court found that they had presented no evidence to satisfy the test for fraudulent concealment. On appeal, the plaintiffs merely state that Loyacono and Verhine fraudulently concealed their alleged negligence. The plaintiffs offer no evidence to back up this bare assertion. While they do make allegations of fraudulent and negligent acts committed by Loyacono and Yerhine, the plaintiffs make no offering of any affirmative act designed to conceal a cause of action. Even if there had been an allegation of an affirmative act designed to conceal the cause of action, it would make no difference because the question would still be whether the alleged negligence was “discovered” for the purposes of the discovery rule. The plaintiffs’ claim of fraudulent concealment to toll the statute of limitations is without merit.

II. Res Judicata and Collateral Es-toppel

A. Res judicata

¶ 31. The trial court held that the plaintiffs’ claims against Loyacono and Verhine were barred by res judicata. Res judicata “reflects the refusal of the law to tolerate a multiplicity of litigation.” Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss.1997). “For the bar of res judicata to apply in Mississippi, there are four identities which must be present: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom a claim is made.” Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 232 (Miss.2005) (citing Quinn v. Estate of Jones, 818 So.2d 1148, 1151 (Miss.2002) and Dunaway v. W.H. Hopper & Assocs., Inc., 422 So.2d 749, 751 (Miss.1982)). The absence of any one of these four identities “is fatal to the defense of res judicata.” Harrison, 891 So.2d at 232 (citing Estate of Anderson v. Deposit Guar. Nat’l Bank, 674 So.2d 1254, 1256 (Miss.1996)). We need only address the identity of the cause of action.

Identity of the cause of action

¶ 32. One of the main concerns with this identity is the prevention of “claim-splitting.” Pointing out the relationship of this identity with the doctrine of claim preclusion, this Court has stated:

Where a judgment is rendered, whether in favor of the plaintiff or the defendant, which precludes the plaintiff from thereafter maintaining an action upon the original cause of action, he cannot maintain an action upon any part of the original cause of action, although that part of the cause of action was not litigated in the original action, except ... (c) where the defendant consented to the splitting of the plaintiffs cause of action.

Harrison, 891 So.2d at 233-34 (quoting Alexander v. Elzie, 621 So.2d 909, 910 (Miss.1992)). The Court went on to say “ ‘this principle prohibiting [re-litigation] requires that the plaintiff bring in the first forum every point which properly belongs to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time.’ ” Harrison, 891 So.2d at 234 (quoting Hayes v. Solomon, 597 F.2d 958, 982 (5th Cir.1979)). “ ‘[I]n accordance with public policy, partially to conserve the courts’ time but probably in the main to prevent the hardship upon [a] defendant of unnecessary piecemeal litigation, a single cause of action cannot be split so as to be properly made the subject of different actions....’” Id.

¶ 33. While this cause of action did arise out of the same body of operative fact as the motions filed in the previous cases, a finding that the identity of the cause of action is met in this case for the purposes of res judicata would not be in keeping with the purpose for the res judi-cata doctrine. In filing the malpractice action against Loyacono and Verhine, the plaintiffs did not split a claim. Rather, the malpractice action was separate and distinct from the original claims against AHP. If the plaintiffs had filed a case against Loyacono and Verhine alleging negligence, and, after the conclusion of that case, filed a second action against Loyacono and Ver-hine alleging fraud, the second action could be properly barred by the doctrine of res judicata or claim preclusion. However, this is an original action alleging legal malpractice, and further, there was no specific ruling made in the previous cases as to any negligence or fraud allegedly committed by Loyacono and Verhine. The only ruling was that the settlement agreements were valid and enforceable. To allow this suit would not subject Loyacono and Verhine, who were not defendants in the previous cases, to repetitious or unnecessary litigation; and therefore, the requirement of identity of the cause of action is not met. Because the absence of one identity is dispositive of the defense of res judicata, this Court need not address the remaining identities.

B. Collateral estoppel

¶ 34. Collateral estoppel is very similar to res judicata. However, “under the doctrine of collateral estoppel, ‘[an] appellant is precluded from relitigat-ing in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit,’ ” and “ ‘collateral estoppel, unlike the broader question of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated.’ ” Mayor and Bd. of Aldermen v. Homebuilders Ass’n of Miss., Inc., 932 So.2d 44, 59 (Miss.2006) (quoting Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289, 293 (1956); Dunaway, 422 So.2d at 751).

¶ 35. In support of their assertion that the plaintiffs’ claims are barred by collateral estoppel, Loyacono and Ver-hine rely on the motions made in the previous cases. Loyacono and Verhine claim that “the crux of [Appellants’] claims — that Loyacono and Verhine acted wrongfully in negotiating the settlement agreements— was decided against them by the court in the Prior Actions on the rulings on the motions regarding the validity of the settlement agreements.” However, there is nothing to back up this assertion. In the orders denying the motions in the previous cases, the trial court made no finding regarding negligence or fraud by Loyacono and Verhine. Rather, the court merely stated in each order that a “meeting of the minds” had taken place in each settlement negotiation, that each plaintiff had signed their agreement, and that the agreements were valid and binding. The relief sought in the present action is not the setting aside of the settlement agreements but compensatory damages for the alleged malpractice of Loyacono and Verhine. Therefore, this is a distinct action, not previously litigated to a final determination, and the claims of the plaintiffs are not barred by collateral estoppel.

III. Waiver and Estoppel

¶ 36. The trial court found that the plaintiffs’ claims were barred by doctrines of waiver and estoppel. “Waiver is voluntary surrender or relinquishment of some known right, benefit or advantage; estoppel is the inhibition to assert it.” Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 964 (Miss.1999) (quoting Black’s Law Dictionary 538 (6th ed. 1990)). In order to establish that a claim is barred by estop-pel, three essential elements must be proven: “(1) a representation that later proves to be untrue, (2) an action by the person seeking to invoke the doctrine, such action being taken in reliance on the representation, and (3) a resulting detriment to that person arising from his action.” Miss. Dep’t of Pub. Safety v. Carver, 809 So.2d 713, 718 (Miss. Ct. App.2001) (citing Town of Florence v. Sea Lands, Ltd., 759 So.2d 1221, 1229 (Miss.2000)).

¶ 37. Neither the trial court’s judgment, nor the defendants’ identical brief explain how these elements are met in this case. However, some facts are stated that could possibly apply. Loyaco-no and Verhine state that they were induced to “consummate the settlement agreements with AHP and to disperse the settlement proceeds to Plaintiffs.” So, taking these facts as they are stated, one could conclude that the plaintiffs represented to Loyacono and Verhine that they wanted to settle and that Loyacono and Verhine took action relying on that representation to negotiate a settlement agreement with AHP. This would satisfy the first two requirements for estoppel to apply. However, there are no facts stated to show, and there are no specific allegations asserting that Loyacono and Verhine suffered any detriment by negotiating the settlement agreements with AHP on behalf of the plaintiffs. On the contrary, Loyacono and Verhine were paid a fee and actually prospered from the negotiations and settlements. Therefore, the third requirement not being met, the plaintiffs’ claims were not barred by estoppel.

¶ 38. Nor does this Court accept the proposition that, simply because the plaintiffs accepted the settlement funds, that they waived any right to sue for malpractice. As discussed earlier, the discovery rule applies to legal malpractice claims and a layman may not discover the wrongful conduct of an attorney until after a case has been settled or otherwise concluded. Therefore, clients maintain their right to sue for malpractice even after accepting settlement funds.

IV. Accord and Satisfaction and Settlement and Release

¶ 39. Finally, the trial court found that the plaintiffs’ claims were barred by accord and satisfaction and settlement and release. Under Mississippi law, there are four elements of accord and satisfaction: “(1) something of value offered in full satisfaction of a demand; (2) accompanied by acts and declarations as amount to a condition that if the thing is accepted, it is accepted in satisfaction; (3) the party offered the thing of value is bound to understand that if he takes it, he takes subject to such conditions; and (4) the party actually does accept the item.” Medlin v. Hazlehurst Emergency Physicians, 889 So.2d 496, 498 (Miss.2004) (citing Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc., 857 So.2d 748, 754 (Miss.2003); Wallace v. United Miss. Bank, 726 So.2d 578, 589 (Miss.1998); Alexander v. Tri-County Co-op., 609 So.2d 401, 404-05 (Miss.1992)).

¶ 40. In the present case, the plaintiffs were offered settlements of various amounts in satisfaction of the demands that were made against AHP. They signed settlement agreements releasing AHP and agreeing that the settlements were in full satisfaction of those demands. The settlements were accepted by the plaintiffs. Loyacono and Verhine contend that this set of circumstances meets the criteria for accord and satisfaction. However, Loya-cono and Verhine’s logic is flawed.

¶ 41. The plaintiffs did not demand anything of Loyacono and Verhine except reasonable care in legal service. The settlements released AHP, not Loyacono and Verhine, from liability and future claims. Furthermore, Loyacono and Verhine provided nothing of value to the plaintiffs. Therefore, accord and satisfaction does not bar the plaintiffs’ claims.

¶ 42. The trial court also cited Mississippi’s “strong and abiding policy favoring settlement” and stated that “permitting [plaintiffs] to bring a second action would undercut Mississippi’s clear policy of favoring and enforcing settlement agreements by allowing a release to be nullified at the whim of the party that agreed to the release of any future claims.” This concern is echoed by Loyacono and Verhine. Again, Loyacono and Verhine try to put themselves in the position of AHP, and again, we reject their argument. The releases signed by the plaintiffs in the previous cases list a number of “Released Parties” who are immune from liability in future actions based on the subject matter of the previous actions. None of the categories of released parties include Loyaco-no and Verhine. The settlement was not made with Loyacono and Verhine, but with AHP. Therefore, no policy favoring settlement would be undermined by allowing the plaintiffs to go forward with their suit against Loyacono and Verhine. Thus, neither accord and satisfaction nor settlement and release bar the plaintiffs claims against Loyacono and Verhine.

CONCLUSION

¶ 43. The record does not establish that plaintiffs’ claims are all barred by the statute of limitations. If a plaintiff knew or should have known of the alleged wrongdoing of Loyacono and Verhine prior to January 1, 2001, that plaintiffs claim is barred. However, if a plaintiff had no notice, or did not have notice until January 1, 2001 or later, then that claim is not barred. Thus the claims of Sarenthia Channel and Molly Robinson are barred by the statute of limitations. Therefore, the circuit court’s judgment is affirmed to the extent that it granted summary judgment against Sarenthia Channel and Molly Robinson. In all other respects, the circuit court’s judgment is reversed and remanded for trial consistent with this opinion.

¶ 44. AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

      .All were plaintiffs in a mass tort claim against American Home Products, now Wyeth Pharmaceuticals. They are Sarenthia Channel, Peggy Crist, Theresa Edwards, Patricia Guthrie, Jane Hamilton, Helen Heard, Alice McRaven, Bertha Mixon, Jennie Parker, James Reed, Jr., Glenda Rivers, Molly Robinson, Pamela Robinson, Karen Thornton, Virginia Townsend, Vera Wells, Mary Whittington, Linda Williams and Peggy Winters. Alice McRaven’s name is spelled “McCraven” periodically throughout the record. However, she signed her settlement agreement "McRaven.”

      . Green, et al. v. AHP, Civil Action No.2000-143; Williams, et al. v. AHP, Civil Action No.2000-200; Harried, et al. v. AHP, Civil Action No.2000-109-(CM)(J). All of these suits were filed in the Circuit Court of Jefferson County.

      . The termination letter implies that a conversation had taken place on December 29, 2000, and that Loyacono had informed Varas and Morgan that their association would be terminated.

      . Only one of the plaintiffs, Pamela Robinson, was a party in Harried.

      . In Stevens, the plaintiffs were suing their lawyers for malpractice. The plaintiffs argued the "continuous representation rule,” and the Court simply clarified that, in order to meet the qualifications of "continuous representation” for the purposes of the rule, the continued representation must be in the same matter upon which the malpractice action is based.

      . 2 Mallen and Smith, Legal Malpractice § 18.12, atll5(3ded.bl989).

      . Sarenthia Channel’s settlement agreement was signed on December 28, 2000, and Molly Robinson's was signed on December 22, 2000.

      . See Harrison, 891 So.2d at 234(''In order for res judicata and the ban on claim-splitting to take effect, the litigation must involve the same claim premised upon the same body of operative fact as was previously adjudicated.”)


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    PENN NATIONAL GAMING, INC. v. Jeff RATLIFF, Individually, as Natural Son of Evadine Ratliff and as Administrator of the Estate of Evadine Ratliff, Deceased; Clyde H. Ratliff, Individually, and as Husband of Evadine Ratliff, Deceased; and Jackie Ratliff Bartlett, Individually, and as Natural Daughter of Evadine Ratliff, Deceased. BSL, Inc. d/b/a Casino Magic Bay St. Louis and Danny McManus v. Jeff Ratliff, Individually, as Natural Son of Evadine Ratliff and as Administrator of the Estate of Evadine Ratliff, Deceased; Clyde H. Ratliff, Individually, and as Husband of Evadine Ratliff, Deceased; and Jackie Ratliff Bartlett, Individually, and as Natural Daughter of Evadine Ratliff, Deceased.
    Nos. 2005-IA-01703-SCT, 2005-IA-01704-SCT.
    Supreme Court of Mississippi.
    April 19, 2007.

      John C. Hall, II, Robert L. Gibbs, Robert S. Addison, Jason H. Strong, Jackson, attorneys for appellants.
    Wayne E. Ferrell, Jr., attorney for ap-pellees.
   ON MOTION FOR REHEARING

WALLER, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing is granted, and the prior opinion is withdrawn and this opinion is substituted therefor.

¶ 2. These consolidated interlocutory appeals present several related issues: (1) whether adequate facts have been pled to support a finding that the parent company of a casino can be liable for breaching Mississippi’s “dram shop” law, (2) whether Hinds County is a proper venue for this case, and (3) whether the facts of the case warrant its transferral to Hancock County either for lack of jurisdiction or under the doctrine of forum non conveniens. Finding that adequate facts have not been pled against the parent company, we hold that the claims against the parent company should be dismissed without prejudice. Because the failure to plead adequately indicates that the claim against the parent company was not reasonable, there is no basis for venue in Hinds County and we hold that this matter should be transferred to Hancock County.

Facts

¶ 3. A serious motor vehicle accident occurred between Alton Vaughn, of Pearl River County, and Evadine Ratliff and her husband Clyde Ratliff, also of Pearl River County, on Highway 43 in Hancock County on November 11, 2003. Vaughn, who was intoxicated, crossed out of his traffic lane and collided with the Ratliffs. The collision injured Clyde Ratliff and killed Vaughn and Evadine Ratliff. Vaughn had spent the preceding twelve hours at the Casino Magic-Bay St. Louis in Hancock County and allegedly consumed a large number of alcoholic beverages there.

¶ 4. On December 23, 2003, the Ratliffs filed suit in the Hinds County Circuit Court against BSL, the Mississippi corporation that owns and operates Casino Magic, BSL employee Danny McManus, and the parent company of BSL, Penn National Gaming, Inc., a Pennsylvania corporation headquartered in Wyomissing, Pennsylvania. They allege that Vaughn was negligently served alcoholic beverages by the Casino Magic-Bay St. Louis casino in violation of this state’s “dram shop law,” Miss.Code Ann. § 67-1-83 (Rev.2005), which prohibits sale of alcohol to persons who are visibly intoxicated. The gaming and retail alcohol permits for the casino are held by BSL. It is undisputed that BSL’s primary place of business is in Hancock County. Neither BSL nor Penn National has any offices or employees in Hinds County. Penn National has authorized an agent in Hinds County to accept service of process, and it was on that basis that the Ratliffs brought suit in Hinds County.

¶ 5. BSL and McManus moved to have the cause transferred to Hancock County. Penn National joined in the venue motion and filed a separate motion to dismiss under Miss. R. Civ. P. 12(b)(6). The trial court denied both motions, and BSL, Mc-Manus and Penn National filed petitions for interlocutory appeals from the trial judge’s order. We granted the petitions and consolidated the proceedings for the purposes of appeal. See Miss. R.App. P. 3(b) & 5.

Discussion

A. Whether the Trial Court Erred in Denying Penn National’s Motion to Dismiss under Miss. R. Civ. P. 12(b)(6)

¶ 6. This Court reviews de novo a trial court’s grant or denial of a motion to dismiss. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988 (Miss.2004). When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Id. Dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief. Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir.1995) (citations omitted). Conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss. Id.

1. Applicability of Mississippi’s “Dram Shop” Statute to Penn National

¶ 7. The Ratliffs’ complaint alleges that Casino Magic and its employee McManus violated this state’s prohibition of the sale of alcoholic beverages to persons who are “visibly intoxicated.” However, the prohibition in Mississippi’s “dram shop” statute creates liability for the permit holder and any employees of the permit holder. Penn National, as the sole shareholder of permit-holder BSL, is neither. This Court has long recognized “the legal integrity of the corporate entity and the concomitant limited liability of shareholders.” Gray v. Edgewater Landing, Inc., 541 So.2d 1044, 1046 (Miss.1989). A corollary principle is that an individual shareholder, by virtue of his ownership of shares, does not own the corporation’s assets. Dole Food Co. v. Patrickson, 538 U.S. 468, 123 S.Ct. 1655, 1660, 155 L.Ed.2d 643, 652 (2003). Even when a parent corporation owns all of the stock of a subsidiary corporation, the parent does not, for that reason alone, own or have legal title to the assets of the subsidiary. Id. The retail alcohol permit is a privilege granted by the state, held by the permittee, and cannot be transferred without the written consent of the State Tax Commission. See Miss.Code Ann. § 67-1-67 (Rev.2005). As such, it cannot be attributed to a lawfully distinct corporate entity.

¶ 8. The Ratliffs nevertheless argue that Penn National is “vicariously liable” for the actions of the casino’s staff because the parent company sets the policies of the casino and is involved in its daily operations. This claim amounts to an allegation that BSL is merely the alter ego of Penn National, which would justify this Court’s “piercing the corporate veil” and attributing the acts or omissions of BSL to Penn National.

2. Piercing the Corporate Veil for a Tort Claim

¶ 9. Corporate veil claims are analyzed under state law. United States v. Bestfoods, 524 U.S. 51, 61-63, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). We decline to pierce the corporate veil except in those extraordinary factual circumstances where to do otherwise would subvert the ends of justice. Gray, 541 So.2d at 1046 (citing Johnson & Higgins of Miss., Inc. v. Comm’r of Ins., 321 So.2d 281, 284 (Miss.1975)). Consequently, we have adopted the general rule that the corporate entity will not be disregarded in contract claims unless the complaining party can demonstrate: (1) some frustration of expectations regarding the party to whom he looked for performance; (2) the flagrant disregard of corporate formalities by the defendant corporation and its principals; and (3) a demonstration of fraud or other equivalent misfeasance on the part of the corporate shareholder. Gray, 541 So.2d at 1047.

¶ 10. While we have never articulated whether a different standard applies to tort claims, precedent from other jurisdictions suggests that the same basic standard should apply. See Miles v. Am. Tel. & Tel. Co., 703 F.2d 193, 195 (5th Cir.1983) (“Although the attitude toward judicial piercing of the corporate veil is more flexible in tort, the legal precepts governing both tort and contract suits are substantially the same.”). It is similarly accepted that some misfeasance other than the tort itself must be shown. See LaSalle Nat’l Bank v. Perelman, 82 F.Supp.2d 279, 295 (D.Del.2000) (“In order to prevail on a claim to pierce the corporate veil ... a plaintiff must prove that the corporate form causes fraud or similar injustice.”) (emphasis added); Mobil Oil Corp. v. Linear Films, Inc., 718 F.Supp. 260, 268-69 (D.Del.1989) (“The law requires that fraud or injustice be found in the defendant’s use of the corporate form.”). We therefore recognize that the corporate veil will not be pierced, in either contract or tort claims, except where there is some abuse of the corporate form itself.

3. Pleading Requirements

¶ 11. Pleadings under Mississippi Rule -of Civil Procedure 8(a) must contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Miss. R. Civ. P. 8(a). All pleadings shall be construed to insure substantial justice is done. Miss. R. Civ. P. 8(f). In construing our rules, we sometimes look for guidance to the federal cases, since the Mississippi Rules of Civil Procedure were patterned after the Federal Rules of Civil Procedure. White v. Stewman, 932 So.2d 27, 39 (Miss.2006) (“federal practice should be our guide when considering questions arising under the Mississippi Rules of Civil Procedure.”); Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss.1984). A majority of federal circuits have held that “even under the liberal pleading requirements of Rule 8(a), a plaintiff must set forth factual allegations, either direct or inferential, respecting each material element-necessary to sustain recovery under some actionable legal theory.” United States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 240 (1st Cir. 2004); see also Varljen v. Cleveland Gear Co., 250 F.3d 426, 429 (6th Cir.2001) (“To survive a motion to dismiss under Fed. R.Civ.P. 12(b)(6), a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.”); Carl Sandburg Vill. Condo. Ass’n No. 1 v. First Condo. Dev. Co., 758 F.2d 203, 207 (7th Cir.1985) (“A complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory.”).

¶ 12. The Ratliffs fail to make any assertion in their complaint that BSL is a mere corporate shell or alter ego of Penn National. The Ratliffs do not allege in their complaint that Penn National has disregarded corporate formalities or has used the corporate form to commit misfeasance.

¶ 13.. At most, the complaint alleges that Penn National owns the Casino Magic casino, which Penn National denies in its answer to the complaint. Because, they have failed to allege all of the material elements necessary to justify disregarding the corporate form, the Ratliffs have not asserted a viable claim against Penn National as required by Miss. R. Civ. P. 12(b). See Wallace v. Wood, 752 A.2d 1175, 1184 (Del.Ch.1999) (failure to allege subsidiary was a vehicle for fraud justifies dismissal for failure to state a claim); Walkovszky v. Carlton, 18 N.Y.2d 414, 421, 276 N.Y.S.2d 585, 223 N.E.2d 6 (1966) (“While the complaint alleges that the separate corporations were undercapitalized and that their assets have been intermingled, it is barren of any 'sufficiently particularized statements that the- defendant Carlton and his associates are actually doing business in their individual capacities, shuttling their personal funds in and out of the corporations without regard to formality and to suit their immediate convenience. Such a perversion of the privilege to do business in a corporate form would justify imposing personal liability on the individual stockholders. Nothing of the sort has in fact been charged.”) (citations omitted); RMS Techs, v. Nynex Computer Servs. Co., 1993 WL 763469 (N.Y.Misc.1993) (conclusory allegations of domination and control and specific allegations of the use of stationery or the sharing of a legal department are insufficient to withstand motion to dismiss); cf. Geyer v. Ingersoll Publications Co., 621 A.2d 784, 793-94 (Del.Ch.1992) (specific allegations about the use of the corporate form to perpetrate fraud sufficient to withstand motion to dismiss); Edward D. Gevers Heating & Air Conditioning Co. v. R. Webbe Corp., 885 S.W.2d 771, 774 (Mo.Ct.App.1994) (extensive allegations about the co-mingling of funds sufficient to withstand motion to dismiss). The trial court therefore erred in denying Penn National’s motion to dismiss the complaint for failure to state a claim on which relief could be granted, and Penn National must be dismissed without prejudice.

B. Whether the Trial Court Erred in Denying Defendants’ Motion to Transfer Venue

¶ 14. The decision to grant or deny a motion for a change of venue lies within the discretion of the trial court and will not be disturbed unless the trial court abuses its discretion. Bayer Corp. v. Reed, 932 So.2d 786, 788 (Miss.2006). In suits involving multiple defendants, venue properly established against one defendant generally is proper against all defendants. See, e.g., Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1002 (Miss.2004); Blackledge v. Scott, 530 So.2d 1363, 1365 (Miss.1988). However, when a resident defendant on whom venue is based is dismissed from the suit, venue is proper for the remaining defendants only where (1) the action was begun in good faith in the bona fide belief that plaintiff had a cause of action against the resident defendant; (2) the joinder of the local defendant was not fraudulent or frivolous, with the intention of depriving the non-resident defendant of his right to be sued in his own county; (3) and there was a reasonable claim of liability asserted against the resident defendant. New Biloxi Hosp., Inc. v. Frazier, 245 Miss. 185, 192, 146 So.2d 882 (1962). The threshold inquiry therefore is whether Penn National may be deemed a resident defendant for the purposes of the Frazier analysis.

¶ 15. At the time the Ratliffs filed suit, Mississippi’s venue statute read, in relevant part:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant resides or in the county where the alleged act or omission occurred or where the event that caused the injury occurred. Civil actions against a nonresident may also be commenced in the county where the plaintiff resides or is domiciled.

Miss.Code Ann. § 11-11-3 (2002) (emphasis added). In Snyder v. Logan, this Court applied the older version of the venue statute and found that a foreign corporation was deemed to “reside” in the county where that corporation maintained a registered agent for service of process. Snyder v. Logan, 905 So.2d 531, 532-34 (Miss.2005) (“[Defendant maintained] a registered agent for service of process in Rankin County.... The trial court was correct in holding that venue was proper in ... Rankin Count[y].”). BSL’s reliance on Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907 (1916), is misplaced. In Plummer-Lewis, this Court held that venue for a domestic corporation was found in the county of its principal place of business and not where a registered agent for service of process could be found. Id., 71 So. at 908. In the present case, because Penn National is a foreign corporation with its principal place of business in Pennsylvania, the only place where it can be said to reside in this state is where an agent for service of process may be found. The Ratliffs must therefore meet the three prongs of the Frazier test in order to maintain their action in Hinds County.

¶ 16. Because the Ratliffs have failed to plead facts sufficient to state a claim against Penn National, their claim is unreasonable, and they fail to meet the third prong of the Frazier test. See Austin v. Wells, 919 So.2d 961, 968 (Miss.2006) (failure to state a reasonable claim means that the third prong of Frazier is not met); Wayne Gen. Hosp., 868 So.2d at 1003 (failure to withstand a motion for summary judgment means that Frazier’s third prong is not met). The trial court therefore erred in denying the motion to transfer venue, as there was no reasonable basis to keep Penn National in the suit.

Conclusion

¶ 17. Because the trial court erred in denying Penn National’s motion to dismiss and BSL’s motion for transfer of venue to Hancock County, we reverse both the order denying the motion to dismiss and the order denying a transfer to Hancock County, and we remand the case to the Hinds County Circuit Court for the dismissal of Penn National from the suit without prejudice and the transfer of the Ratliffs’ case against BSL and Danny Mc-Manus to the Circuit Court of Hancock County.

¶ 18. REVERSED AND REMANDED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, AND RANDOLPH, JJ., CONCUR. DIAZ, GRAVES AND DICKINSON, JJ., NOT PARTICIPATING.

      . The statute reads in pertinent part: "It shall be unlawful for any permittee or other person to sell or furnish any alcoholic beverage to any person who is known to be insane or mentally defective, or to any person who is visibly intoxicated, or to any person who is known to habitually drink alcoholic beverages to excess, or to any person who is known to be an habitual user of narcotics or other habit-forming drugs. It shall also be unlawful for the holder of any package retailer’s permit to sell any alcoholic beverages except by delivery in person to the purchaser at the place of business of the permittee.” Miss.Code Ann. § 67-1-83(1) (Rev.2005).

        . Miss.Code Ann. § 11-11-3 was amended effective September 1, 2004. Suits filed before that date are therefore governed by the older version of the statute.


author: SMITH, Chief Justice, for the Court.

text:
    In the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF SARDIS, Mississippi.
    No. 2004-AN-02437-SCT.
    Supreme Court of Mississippi.
    April 19, 2007.

      Dion Jeffery Shanley, Oxford, attorney for appellant.
    Thomas S. Shuler, attorney for appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   SMITH, Chief Justice, for the Court.

¶ 1. The City of Sardis, Mississippi, passed an ordinance approving the annexation of certain portions of Panola County adjoining the city into the city limits and filed a petition in the Chancery Court of Panola County seeking confirmation of the extension of its boundaries. Finding the requirements of law satisfied for certain portions of the proposed annexation area, the chancery court partially approved the City’s petition, issuing a decree granting annexation with respect to the satisfactory areas. The objectors to the annexation along with the City of Sardis subsequently filed a joint Motion to Set Aside Decree. The chancery court denied the motion, and all parties appeal that decision. We find the chancellor applied an erroneous legal standard and usurped the Legislature’s exclusive authority. We therefore, reverse and render the chancery court decree and denial of the motion to set aside that decree.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 8, 2003, the City of Sardis, Mississippi adopted an ordinance seeking to extend the boundaries of the City to include certain territory located adjacent to the City. The City subsequently filed a petition in the Chancery Court of Panola County for ratification of the ordinance. The chancery court entered an opinion confirming the extension of the boundaries to include the proposed annexation areas which it found complied with the statutory standard of reasonableness pursuant to Miss.Code Ann. § 21-1-33 (Rev.2001). Considering all indicia of reasonableness, the court found the proposed annexation reasonable with the exclusion of the prospective additions to the north and to the east of the City, finding a lack of evidence that those areas were within any path of growth of the municipality. The court entered a decree confirming the approved extension. Nolan West and other objectors (hereinafter “West”) timely appealed that decision to this Court, and the City timely cross-appealed.

¶ 3. On August 2, 2005, the City enacted an ordinance repealing the July 8, 2003, ordinance seeking annexation. The City and West then jointly filed with this Court a Motion to Set Aside a Lower Court Judgment, or in the Alternative to Remand for Further Proceedings Due to Subsequently Occurring Events. This Court responded with an Order remanding the matter to the Panola County Chancery Court to allow the chancery court to consider any request for relief the parties might file.

¶ 4. On remand, the City filed a Motion to Set Aside Decree, which West subsequently joined, requesting the chancery court to set aside the previous Order pursuant to Mississippi Rules of Civil Procedure Rule 60(b)(6). On November 14, 2005, the chancellor entered an Order denying the motion stating that: (1) the City should not be allowed to change its position regarding the desirability of annexation subsequent to the entry of the Final Decree of the trial court; (2) the Court should not set aside the decree unless error was shown on the part of the trial court; and (3) the proper course for the City should it no longer desire to include the subject territory would be to institute a deannexation proceeding.

¶ 5. Consequently, the parties filed a Joint Notice of Appeal on December 13, 2005, raising one issue, whether the trial court erred in denying the parties’ motion to set aside the decree granting annexation.

DISCUSSION

¶ 6. The arguments posed by the City and West are two: that the chancery court erred in refusing to recognize the City’s repealer ordinance when the court’s decree was not yet effective; and that the City has the sole decision-making power as to whether to institute and proceed with annexation proceedings.

¶ 7. In reviewing annexation decisions, this Court only reverses when the chancery court has employed erroneous legal standards or where the record supports a firm and definite conviction that a mistake has been made. In re Enlargement & Extension of City of Jackson v. City of Ridgeland, 912 So.2d 961, 964 (Miss.2005); City of Grenada v. Marascalco (In re Contraction, Exclusion & Deannexation of Certain Areas), 876 So.2d 995, 999-1000 (Miss.2004).

A. The Effective Date of an Annexation Decree

¶ 8. The first question is whether the decree was effective when the City passed the repealer ordinance. Miss.Code Ann. § 21-1-33 (Rev.2001) provides that “the decree of the chancellor shall become effective after the passage of ten days from the date thereof or, in event an appeal is taken therefrom, within ten days from the final determination of such appeal.” Having appealed the decree, West argues that pursuant to Miss.Code Ann. § 21-1-33, the decree is not effective until ten days after the final determination of his appeal of the decree. We agree.

¶ 9. The chancery court entered a decree confirming the annexation on November 19, 2004. Both parties appealed in December 2004. While the appeal was pending, on August 2, 2005, the City repealed its initial ordinance seeking annexation on August 2, 2005. The City presented the re-pealer ordinance to the chancery court on October 10, 2005, within its motion to set aside the decree, and the chancery court denied the motion.

¶ 10. Pursuant to Miss.Code Ann. § 21-1-33, the decree was not yet effective when the City repealed its initial ordinance. The question then becomes whether, subsequent to entry but prior to the effectiveness of the decree, a City may repeal its ordinance seeking annexation when the issue is before the chancery court on remand.

B. The Legislative Authority of a Municipality to Control the Proposed Annexation

¶ 11. The City asserts that the decision to extend the boundaries of the municipality is a legislative decision. Therefore, if the City notifies the court that an annexation for which confirmation is pending has become undesirable, the judiciary is without authority to ratify such annexation. We agree.

¶ 12. It is well-established that annexation is a power belonging solely to the Legislature. Poole v. City of Pearl (In re Extension of the Boundaries), 908 So.2d 728, 730 (Miss.2005). “Municipal corporations are now, as they have always been in this state, purely creatures of legislative will ... their powers, their rights, their corporate existence, dependent entirely upon legislative discretion.” Id. (quoting Gully v. Williams Bros., Inc., 182 Miss. 119, 180 So. 400, 405-06 (Miss.1938)).

¶ 13. The City asserts that it may, within its legislative authority, repeal its annexation ordinance, even after the chancery court has adopted it. The City cites City of Jackson v. Town of Flowood, 331 So.2d 909 (Miss.1976), to support this proposition. The dispute in Flowood concerned the ability of the City of Flowood to alter the proposed boundaries of annexation prior to entry of the confirmation decree by the chancery court. Id. at 912. The City did not present evidence as to the reasonableness of annexing certain areas, deciding after it submitted its proposal to the court that it no longer desired to annex these areas. Id. The result was that the court excluded from its final order approving annexation those areas for which no evidence of reasonableness for annexation was presented. Id. We stated that Miss. Code Ann. § 21-1-33, which gives the chancellor the right and power to modify the proposed enlargement by decreasing the proposed annexation area, provides for flexibility in the annexation procedure. Thus, we upheld the City’s modification of its proposal during the proceedings as well as the trial court’s adaptation in accordance with the City’s modifications. Id.

¶ 14. Flowood illustrates the exclusive ability of the City to propose the boundaries for annexation. Here, when this Court ordered a remand it extended the confirmation procedure, and thus, the parties were provided an opportunity to present new information to the chancery court regarding the annexation.

¶ 15. The proposal, and likewise the withdrawal, of annexation is solely legislative. The City presented on remand an ordinance repealing its initial ordinance seeking annexation. Therefore, the chancery court erred in denying the City’s motion to set aside the decree granting annexation, as the court had no authority to force annexation in the face of a repeal ordinance from the municipality.

CONCLUSION

¶ 16. The chancellor applied an erroneous legal standard in its denial of the parties’ motion in that the court (1) put forth as the effective date of the decree the date of entry instead of ten days after determination of appeal as prescribed in Miss.Code Ann. § 21-1-33, and (2) usurped the exclusively legislative function of determining whether to pursue annexation procedures. We therefore reverse and render the chancery court decree granting annexation as well as the denial of the motion to set aside the decree.

¶ 17. REVERSED AND RENDERED.

WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON, AND RANDOLPH, JJ., CONCUR. COBB, P.J., NOT PARTICIPATING.


author: SOUTHWICK, J.,

text:
    Larod M. GROSS a/k/a Larod Montrell Gross a/k/a Larod Monterll Gross, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-01685-COA.
    Court of Appeals of Mississippi.
    Oct. 31, 2006.
    Rehearing Denied April 17, 2007.
    Larod M. Gross, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. Larod Gross pled guilty to the crimes of armed robbery and aggravated assault in 2003. In 2005 he filed for post-conviction relief, alleging that his plea was not voluntarily and knowingly entered. We agree with the trial court that there is no evidence of that defect. We affirm.

FACTS

¶2. Gross admitted to entering a grocery store in Panola County, Mississippi, armed with a shotgun. Gross admitted that while he was in the store, he robbed a clerk and one patron. Gross admitted to shooting off the hand of a second patron in the store. Gross pled guilty to two counts of armed robbery, for which he was sentenced to eight years for each count, and to aggravated assault, for which he was sentenced to twenty years. All sentences were to run consecutively. At the time of entering his plea, Gross was nineteen years of age.

DISCUSSION

¶ 3. Gross argues that his plea was not voluntarily and knowingly entered because he is unable to read. Gross claims that he did not understand his plea even though his attorney read the plea to him. In support of his argument, Gross cites one case that has no relevance to his situation. Irving v. Breazeale, 400 F.2d 231 (5th Cir.1968) (affirming the denial of motion for writ of habeas corpus which asserted constitutional violations regarding a confession to murder). Gross attaches to his petition various grade school assessments indicating that he had substantially deficient academic skills. Gross reasons that he should have another day in court due to being on drugs while the crime was committed and due to his low intelligence level.

¶ 4. A trial court may summarily dismiss a post-conviction relief motion if “it plainly appears from the face of the motion, any annexed exhibits and the proper proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Supp.2005). That is what the trial court in this instance determined it should do.

¶ 5. The standard of competency to enter a plea of guilty is the same as the competency to stand trial. Magee v. State, 752 So.2d 1100, 1102 (Miss.Ct.App.1999) (citing Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993)). That standard requires a “rational understanding of the charges against him and the ability to assist his lawyer in preparing his defense.” Id. at 1102.

¶ 6. Gross represented to the court both in his petition and at the hearing that he could read and write. The trial judge conducted a hearing in which Gross was explained his constitutional rights, the crimes for which he was entering a plea of guilty, and the maximum and minimum punishment he could receive for each crime. Gross communicated to the judge that he understood everything that was explained to him and that he wanted to enter a plea of guilty to charges against him. The judge was aware that Gross was on drugs when the crime was committed. Even though Gross claims to have lied to the judge in stating that he was able to read and understand the plea petition, he admits in his argument that his attorney explained the petition to him. The prosecutor recited the events for which Gross was being charged, and Gross told the judge that he did not disagree with anything that was said.

¶ 7. The sworn answers Gross gave during the plea hearing demonstrate that he understood the charges against him, his constitutional rights, and the punishment he-could receive for the crimes he committed. Gross voluntarily and knowingly entered his guilty plea. The trial court committed no error in dismissing the motion for post-conviction relief.

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

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


author: BARNES, J.,

text:
    PUBLIC EMPLOYEES’ RETIREMENT SYSTEM, Appellant v. Frank A. LEWIS, Appellee.
    No. 2005-CC-01418-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied April 17, 2007.

      Mary Margaret Bowers, attorneys for appellant.
    George S. Luter, attorneys for appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. The Mississippi Public Employees’ Retirement System (PERS) appeals the decision of the Hinds County Circuit Court reversing the ruling of the PERS Board of Trustees that denied Frank A. Lewis, a former state employee, non-work related retirement disability benefits. The Hinds County Circuit Court found there was sufficient evidence of disability for Lewis and awarded him benefits. On appeal, PERS argues that the circuit court erred in finding such sufficient evidence by reweighing and reevaluating the record, thereby substituting its judgment for that of the administrative agency. We agree, and find that the circuit court erred in finding PERS’s decision unsupported by substantial evidence. Accordingly, we reverse the Hinds County Circuit Court’s decision and reinstate the decision of the PERS' Board of Trustees denying disability benefits to Frank Lewis.

STATEMENT OF FACTS

¶ 2. Frank A. Lewis was employed by the Mississippi Department of Transportation (MDOT) as an equipment operator and material handler for cement bridge repairs. On February 23, 2001, at the age of fifty-three, Lewis applied for non-duty related disability retirement with PERS. At this time, Lewis had seventeen and one quarter years of service credit with MDOT. Lewis had suffered from diabetes for approximately fifteen to twenty years while continuing to work and manage his health. Lewis was scheduled to retire on June 1, 2001. On May 14, 2001, Lewis was in an automobile accident and received a shoulder injury. He never returned to work. On May 31, 2001, Lewis terminated his employment with MDOT.

¶ 3. Per standard procedure, two separate PERS committees, the Medical Board and the Disabilities Appeal Committee (Appeals Committee) of the Board of Trustees, examined Lewis’s disability claim. Prior medical records, current independent medical evaluations, and Lewis’s sworn testimony were analyzed. The committees were composed of five different doctors and one hearing officer. On December 12, 2001, after studying numerous medical records, the Medical Board found insufficient objective evidence to support Lewis’s retirement disability claim. On February 7, 2003, the Appeals Committee, after considering the evidence in relation to the applicable law and regulations, and hearing Lewis’s testimony, agreed with the Medical Board and recommended to the PERS Board of Trustees that Lewis be denied retirement disability benefits. Accordingly, on April 22, 2003, the PERS Board of Trustees agreed with the Appeals Committee’s conclusion to deny Lewis benefits pursuant to Mississippi Code Annotated section 25-11-113. On May 14, 2003, Lewis appealed to the Hinds County Circuit Court. On June 10, 2005, the court reversed PERS’s denial of Lewis’s disability retirement benefits, finding sufficient evidence of disability and holding the decision of the PERS Board of Trustees unsupported by the evidence and, therefore, arbitrary and capricious. PERS appealed to this Court on July 6, 2005.

¶ 4. The Appeals Committee, in making its decision to deny Frank Lewis benefits, relied on several physicians’ medical evaluations and Lewis’s testimony at a hearing on February 7, 2003. However, there was conflicting evidence in both the physicians’ records and Lewis’s testimony regarding his medical conditions. The Appeals Committee, through its Proposed Statement of Facts, Conclusions of Law and Recommendations, submitted to the Board of Trustees the evidence the committee had evaluated and how the evidence was weighted in order to arrive at a decision.

¶ 5. The recommendation stated that most of the medical reports provided to PERS were from Dr. David Smith, Lewis’s family practitioner. Dr. Smith treated Lewis from August 1998 to June 2001. Lewis’s glucose levels for his diabetes fluctuated during this time. In May 2001, however, right before his car accident, and before he terminated work, Lewis’s glucose level was in the “excellent” range. On PERS’s Statement of Examining Physician, filed June 18, 2001, Dr. Smith opined Lewis was not at maximum medical improvement because of his glucose fluctuation. If Lewis had a schedule that allowed for regular meals, Dr. Smith thought Lewis would be better able to control his diabetes. Dr. Smith admitted, however, that he was unaware of the specifics of Lewis’s job, except that Lewis had said he was unable to eat meals on time.

¶ 6. The Appeals Committee was also in receipt of the medical records of Dr. Carla Mitchell Armstrong, who began seeing Lewis as a patient in May 2001, after Lewis’s car accident. Initially, she treated him for a shoulder injury. One year later, Dr. Armstrong prepared a “to whom it may concern” letter stating Lewis could no longer perform his current job, or any job, because of his complaints of dizziness, along with his other problems.

¶ 7. During Lewis’s hearing before the Appeals Committee, Lewis brought with him medical reports stating he had been involved in an automobile accident May 14, 2001. An MRI had shown degenerative changes in his shoulder joint, but no definite rotator cuff tear was seen. The records indicated Lewis was receiving physical therapy for this injury under Dr. Keith Melancon’s guidance. On October 25, 2001, Dr. Melancon wrote in his records that, as far as Lewis’s shoulder injury, he could “go back to doing everything he would like to do,” but in the future he would probably require surgery. On October 30, 2001, these records stated Lewis’s shoulder pain was “minimal,” and he was discharged from physical therapy.

¶ 8. On October 9, 2001, Dr. Lori Russell, an internist at the University of Mississippi Medical Center, independently evaluated Lewis for his disability claim. The Appeals Committee noted, however, that the medical history Lewis recounted to Dr. Russell regarding the management of Lewis’s diabetes contradicts his later testimony at his hearing before the Appeals Committee on February 7, 2003. Specifically, Lewis stated to Dr. Russell that he had never lost consciousness, while at the hearing he blamed his automobile accident on a loss of consciousness, presumably from his diabetes. As for his work hours, Lewis told Dr. Russell he worked ten-hour days, while he told the Appeals Committee he worked from 7:00 a.m. to 3:30 p.m. Finally, Lewis told Dr. Russell sometimes he ate breakfast at work and took insulin on the job site, while at the hearing he said he often did not eat breakfast and he took his insulin at home.

¶ 9. The Appeals Committee acknowledged that Dr. Russell’s independent medical evaluation advised Lewis that “[i]n order to continue working, the patient must have” an Accu-Chek machine on site to measure glucose levels, and regularly scheduled fifteen to twenty minute breaks for glucose monitoring and snacking if necessary. Dr. Russell went on to state that if the above recommendations were not feasible, she would consider Lewis disabled from his current position, and would recommend he be offered another position that would allow for adequate breaks for snacking and blood glucose monitoring. Lewis’s supervisor responded to these requests that while MDOT would not purchase an Accu-Chek machine or its supplies for Lewis, MDOT would accommodate Lewis by allowing him to bring his own machine to work and accommodate him with breaks. The Appeals Committee concluded that Lewis was not permanently disabled as defined in sections 25-11-113, -114. The Board of Trustees reviewed the record of proceedings before the Appeal Committee and adopted the recommendation of that committee as the order of the Board, thereby denying Lewis’s request for disability benefits.

¶ 10. The Hinds County Circuit Court, in its opinion and order of June 10, 2005, reversed the Board of Trustees’s denial, and found Lewis injured and “unable to perform his usual duties of employment as required by the Mississippi Department of Transportation.” The circuit court relied heavily on Dr. Armstrong’s statement, prepared one year after the car accident, which stated Lewis would never be able to return to work at MDOT because of his diabetes, hypertension, and shoulder injury. Dr. Smith’s admission that he was unaware of the specifics of Lewis’s job was not mentioned in the court’s order, nor was the fact that Dr. Smith found Lewis’s glucose level for his diabetes “excellent” at the time Lewis terminated employment. Dr. Russell’s independent evaluation recommending pro-active measures on Lewis’s part to control his diabetes while at work was not addressed in the circuit court’s order.

¶ 11. The circuit court focused on Lewis’s shoulder injury, which occurred months after he initially applied for disability. Dr. Armstrong’s diagnosis after Lewis’s car accident of a possible rotator cuff tear was duly noted by the court. Also, the circuit court emphasized Lewis’s evaluation by orthopedist Dr. Melancon, which diagnosed Lewis with rotator cuff tendinitis and a probable tear. This diagnosis was made after Lewis filed for disability but before his hearing and the Appeals Committee’s decision. The circuit court concluded that, as a result of the automobile accident on May 14, 2001, Lewis had “suffered a debilitating shoulder injury and an aggravation of his diabetes and hypertension.” The circuit court opined that, after an objective review of the record, PERS’s decision was not supported by substantial evidence. Further, the court found it “very clear” from the record that Lewis had suffered “an injury which rendered him unable to perform his usual duties of employment” as an equipment handler at MDOT.

STANDARD OF REVIEW

¶ 12. The standard of review for appeals from administrative agency decisions is well established and limited. According to Rule 5.03 of the Uniform Rules of Circuit and County Court, the agency’s decision will not be disturbed unless the judgment was: (1) unsupported by substantial evidence, or (2) arbitrary and capricious, or (3) beyond the power of the agency to make, or (4) violative of the complainant’s statutory or constitutional rights. Pub. Employees’ Ret Sys. v. Smith, 880 So.2d 348, 350-51(¶ 12) (Miss.Ct.App.2004) (citing Pub. Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018(¶ 13) (Miss.2003)). The reviewing court may not substitute its judgment for that of the administrative agency, nor may it reweigh the evidence presented. Pub. Employees’ Ret. Sys. v. Howard, 905 So.2d 1279, 1285(1115) (Miss.2005). Similarly, when an appellate court evaluates a chancery or circuit court’s ruling on an appeal of an agency action, it applies the same standard of review as the lower court sitting as an appellate court. Pub. Employees’ Ret. Sys. v. Marquez, 774 So.2d 421, 429(¶ 32) (Miss.2000) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw County Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)). When this Court finds that the reviewing court has overstepped its authority and improperly overturned the agency’s decision, “we will reverse and reinstate the agency’s decision.” Miss. State Bd. of Pub. Accountancy v. Gray, 674 So.2d 1251, 1253 (Miss.1996).

ISSUE AND ANALYSIS

WHETHER THE CIRCUIT COURT ERRED IN FINDING INSUFFICIENT EVIDENCE TO SUPPORT THE BOARD OF TRUSTEES’S DENIAL OF LEWIS’S PERMANENT DISABILITY BENEFITS CLAIM.

¶ 13. An employee must prove his non-duty related permanent retirement disability to the PERS Medical Board according to the legal requirements of Mississippi Code Annotated section 25-11-113(l)(a) (Rev.2003). The agency, not the reviewing court, acts as the finder of fact. Pub. Employees Ret. Sys. v. Cobb, 839 So.2d 605, 609(¶12) (Miss.Ct.App.2003) (citing Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1296 (Miss.1990)). Fact-finding includes evaluating the testimony of witnesses for credibility. Cobb, 839 So.2d at 609(¶ 12). PERS has the sole responsibility of assessing the evaluations by medical personnel and determining which evaluations to rely upon. Johnston v. Pub. Employees’ Ret. Sys., 827 So.2d 1, 3(¶ 7) (Miss.Ct.App.2002) (citing Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434, 438(¶ 15) (Miss.2000)). “Sorting through voluminous and contradictory medical records, then determining whether an individual is permanently disabled is better left to physicians, not judges.” Howard, 905 So.2d at 1287(¶23). Moreover, it is long established that the Mississippi Constitution does not allow the judiciary to retry matters appealed from agencies de novo. Miss. State Tax Comm. v. Mississippi-Alabama State Fair, 222 So.2d 664, 665 (Miss.1969). The reviewing court must affirm the agency’s decision if there is “substantial evidence” and the decision is neither “arbitrary nor capricious.” URCCC Rule 5.03. “Substantial evidence” is defined as “that which provides an adequate basis of fact from which the fact in issue can be reasonably inferred.” Pub. Employees’ Ret. Sys. v. Dishmon, 797 So.2d 888, 892(¶ 13) (Miss.2001). An agency decision is “arbitrary” if “it is not done according to reason and judgment, but depending on the will alone.” Miss. State Dep’t of Health v. Natchez Comty. Hosp., 743 So.2d 973, 977(¶ 13) (Miss.1999). A “capricious” decision is “done without reason, in a whimsical manner, implying either a lack of understanding of or disregard for the surrounding facts and settled controlling principles.” Id. If there is substantial evidence supporting the agency’s decision, the reviewing court must give this decision substantial deference. Cobb, 839 So.2d at 609(¶ 12).

¶ 14. The Appeals Committee reviewed the records and testimony by both treating physicians and reviewing physicians regarding his disability claim. There were conflicting assessments of Lewis’s potential disability. The Appeals Committee chose not to ignore the important discrepancies (in the evidence. Lewis’s inconsistent testimony was found to be significant by the Appeals Committee. This testimony, especially regarding how Lewis’s work affected his diet, glucose monitoring, and insulin administration was contradictory. Ultimately, the Appeals Committee was not persuaded by Lewis’s general attempts to manage his health. “Mr. Lewis did not give us the impression that he lacked ability to manage his diabetes. He lacked the motivation.” The Appeals Committee scrutinized Lewis’s glucose ranges over the years, finding his diabetes well controlled of late. Because Lewis never returned to his job, the possibility of his shoulder injury negatively impacting his work duties could not be determined. The Appeals Committee concluded that most of Lewis’s problems were from noncompliance with diabetes treatment.

¶ 15. We find that the circuit court, in reversing the decision of the Board of Trustees, improperly reweighed and reevaluated the evidence presented. The circuit court failed to evaluate substantial medical evidence of non-disability and the inconsistencies in Lewis’s testimony. The circuit court gave much more emphasis to the shoulder injury resulting from the car accident; further, the court failed to identify any connection between the shoulder injury and Lewis’s worsened diabetes. The circuit court also reevaluated evidence from the PERS medical committees’ findings^ especially regarding Dr. Russell’s opinion that Lewis would be able to work with certain accommodations for his diabetes. Instead, the court stressed the assessment of Lewis’s personal physician, Dr. Armstrong, that Lewis could not work at this or any other job because his diseases were chronic. The circuit court also ignored the inconsistencies of Lewis’s testimony. The totality of Lewis’s personal health habits related to work was given no comment. The possibility Lewis may have some personal responsibility regarding his diabetic condition was not considered. Finally, the circuit court did not acknowledge the fact that Lewis never returned to work after his automobile accident, and never mentioned the timing of Lewis’s termination of employment, which was one day before he was scheduled to retire.

¶ 16. Lewis asserts there is substantial evidence to prove he is disabled and can no longer work. Moreover, Lewis argues PERS “ignored” substantial evidence in denying disability. Lewis also argues that the evidence provided contradicts PERS’s rationale in denying benefits, and the evidence supporting PERS’s decision is-insubstantial.

¶ 17. The issue on appeal is not whether there would have been sufficient evidence for PERS to determine Lewis is disabled, but whether there is substantial evidence to support its decision that he is not. The agency’s assigned role is that of sole fact finder. The PERS Medical Board and Appeals Committee had to determine from the evidence presented whether Lewis was able “to perform the usual duties of employment.” They found he was. The two committees fulfilled their proper role by studying the physicians’ assessments and deciding which to rely upon. See Byrd v. Pub. Employees’ Ret. Sys., 774 So.2d 434, 438(¶ 15) (Miss.2000) (stating it is PERS Medical Board’s discretion to choose which medical evaluations to rely on when inconsistent). Finally, the PERS Board of Trustees had complete discretion to weigh all of the contradictory testimony and documentary evidence in arriving at its conclusion.

¶ 18. We find the assessment by PERS supported by substantial evidence in ruling Frank Lewis was unqualified for non-duty related disability benefits under section 25-11-113. Lewis is not in perfect health, but PERS found substantial evidence to support its denial of disability benefits to him. PERS reasonably used its judgment in analyzing this evidence, studying the detailed facts as well as the surrounding circumstances. Thus, PERS’s decision was not arbitrary or capricious. We find the circuit court imper-missibly reevaluated the evidence. Accordingly, we find that the circuit court erred in reversing the .decision of the PERS Board of Trustees. We reverse and render, reinstating PERS’s decision to deny permanent disability benefits to Frank Lewis.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., MYERS, P.J., SOUTHWICK, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ„ CONCUR. IRVING, J. CONCURS IN RESULT ONLY. LEE, P.J., NOT PARTICIPATING.

      . Much of Lewis’s testimony at the February 7, 2003 hearing centered on his eating habits, since this is central to the management of diabetes. Lewis testified that doctors never told him to bring a coke or snacks to work to regulate his blood sugar. Lewis blamed his inability to eat regularly on his work situation. Lewis received thirty minutes for lunch. It was apparent that since his job sites were often in rural areas where there was nowhere nearby to buy food, Lewis, along with his coworkers, needed to pack lunches for work, which he said he did about three times per week. But, Lewis felt he could not bring lunch as his doctor told him to avoid cold cuts because of his hypertension. Also, Lewis testified that sometimes he did not bring his lunch because he overslept in the morning and did not have time to make it.

      . Medical records in the fall of 2001 indicate Lewis had a full range of motion in his shoulder.

      .During the February 7, 2003 hearing, when Lewis was asked why he felt unable to work, he stated he was scared he would black-out and suffer an accident. Also, he felt he could not get his blood sugar level under control while working. Since the spring of 2001, Lewis felt his diabetes had worsened and was out of control, but since he had not worked, it was better. Yet, medical records show from March and April of 2001 Lewis's blood sugar level was stable and in excellent control. Also, Lewis has no record of diabetic complications. Since he has not been working, Lewis stated his elderly mother helps prepare his meals every day, which he believes helps control his diabetes.

      . Lewis gave conflicting testimony about the availability of breaks at his job. Additionally, Lewis admitted he never checked his blood sugar at work because using an Accu-Chek machine on repair jobs was difficult and there was not a clean water source.

      . The circuit court erroneously refers to Dr. Carla Mitchell Armstrong as "Dr. Carlo Mitchell" in its opinion.

      . Dr. Melancon wrote that Lewis was found to have a permanent impairment of twenty percent to his upper extremity and permanent limitations of no overhead work or heavy lifting over twenty-five pounds. On Lewis’s job requirements form, it was noted lifting is "occasionally” required (6-33% of the time per day).

      . Mississippi Code Annotated section 25 — 11— 113 states, in pertinent part, "the medical board after an evaluation of medical evidence that may or may not include an actual physical examination by the medical board, shall certify that the member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that the member should be retired.” The medical board shall apply the definition of "disability” as: "the inability to perform the usual duties of employment or the incapacity to perform such lesser duties, if any, as the employer, in its discretion, may assign without material reduction in compensation-" Miss.Code Ann. § 25-11-113 (Rev.2003).


text:
    Kayo Kinta BOOKER, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00026-COA.
    Court of Appeals of Mississippi.
    Nov. 21, 2006.
    Rehearing Denied April 24, 2007.

      Kayo Kinta Booker, Appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., SOUTHWICK and GRIFFIS, JJ.
   SOUTHWICK, J.,

for the Court.

¶ 1. In August 2004, Kayo Kinta Booker entered a guilty plea and was convicted in Yazoo County Circuit Court on two counts of murder. His subsequent motion for post-conviction relief alleged that the prosecutor violated a plea agreement, that counsel was ineffective, and that he did not know the minimum sentence. The motion was dismissed without a hearing. Booker appeals, but we affirm.

DISCUSSION

1. Validity of Guilty Plea

¶ 2. In his motion for post-conviction relief, Booker alleged that he pled guilty because his counsel had frightened him with the prospect that he would get the death penalty if he went to trial. He also alleged that counsel had told him that he would be out on parole in ten years despite the life sentence. In the motion’s explanation of the basis for his understanding about an early release from his life sentence, reference is made to an alleged right of an inmate to be released upon reaching sixty-five years of age. See Miss.Code Ann. § 47-5-139(a) (Rev.2004) (Inmate not sentenced to life for capital murder may petition for conditional release when he reaches age sixty-five, if served at least fifteen years). We do not see any mention of Booker’s age in the record, but perhaps Booker is old enough that the cited statute has importance to him. He complains that his attorney misled him about release in ten years and also that the State violated a plea agreement regarding sentencing.

¶ 3. There is not in the record any transcript of Booker’s guilty plea hearing, nor is there a copy of his petition to plead guilty. Before filing his post-conviction relief motion, Booker had filed a motion to be provided certain records. Included was a request for a transcript of a proceeding of August 2, 2004, which was the date of his guilty plea. The circuit judge stated that the criminal court file had been sent to Booker and consequently the petition for records need not be addressed. The court in the same order stated that there was no transcript of the hearing, and therefore the request for that significant record was effectively denied. The court also referred to what was stated in Booker’s plea petition. Presumably the petition was available to the trial court in denying post-conviction relief. Unfortunately, that document was not included in what was submitted as the record for appeal. Booker asked for the transcript and all “motions before and after sentencing” to be included on appeal. It would appear that the court reporter provided everything that was in Booker’s post-conviction relief file and copied nothing from the criminal conviction file.

¶ 4. The trial court denied relief based almost entirely on the plea petition. The petition apparently contained sworn assertions denying most if not all of what Booker stated in his request for post-conviction relief. Within the petition was a denial that any agreement had been reached regarding a sentence recommendation, and it further stated that such agreements would not be binding on the trial judge anyway. The petition specifically said that no one had promised him any particular sentence or gave him any expectation about parole.

¶ 5. Booker renews on appeal his request for a transcript of the guilty plea hearing. Under this State’s post-conviction relief procedures, there is not an automatic right to a transcript. In one appeal, an inmate who had been denied post-conviction relief had also had denied a request for a transcript. Ford v. State, 708 So.2d 73 (Miss.1998). The Supreme Court upheld the denial of relief in part because the inmate had not presented affidavits supporting his claims, which is a relevant obligation only if there would be witnesses to the allegations. Id. at 75. Booker’s own attorney would have been a reasonable source for information about any statements concerning parole or that there had been a plea agreement. Further, a prisoner is entitled to a transcript of previous hearings only if the post-conviction motion withstands summary dismissal. Id. at 76. The Supreme Court found that the motion and the request for a transcript were properly denied because the motion itself had not presented a basis for relief. Id.

¶ 6. The court in Ford relied on this statute: “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Miss.Code Ann. § 99-39-11(2) (Rev.2000). If the trial judge’s summary dismissal of Booker’s motion was proper based on the lack of substantialness of the motion itself, the failure to provide a transcript is sustainable.

¶ 7. It would have been preferable that the plea petition relied upon by the trial judge have been included in the record. However, the appellant Booker had the burden to ensure the record is adequate to support his claims of error. Latiker v. State, 918 So.2d 68, 75 (Miss.2005). We have the trial judge’s summary of the petition, and no statements from Booker on appeal disputing the summary. The petition was found to state that no agreement had been reached regarding a recommended sentence as a result of plea bargaining, that no agreement would be binding on the trial court, and that no one had promised any particular sentence or parole. These sworn statements may be overcome only by evidence. When there would be witnesses to the events that are the basis for the claimed invalidity to the plea, and no affidavits from anyone are provided, the previous sworn assertions by the defendant in court or in a plea petition will stand as the controlling evidence. Gable v. State, 748 So.2d 703, 706 (Miss.1999).

¶ 8. The trial court properly found that no promises regarding parole or a specific lesser sentence had been made to Booker and that his plea was not induced by any such understandings.

2. Ineffective Assistance of Counsel

¶ 9. Booker claims that his counsel rendered ineffective assistance for failing to insist on testimony from a psychiatrist regarding Booker’s stability and competence, and by misleading Booker to enter a guilty plea. Booker claims that counsel scared him with the prospect of the death penalty and this resulted in Booker entering a guilty plea.

¶ 10. A claim of ineffective assistance of counsel is reviewed under a two-part inquiry: (1) whether counsel’s performance was deficient; and (2) whether that deficiency caused prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice means that the proceedings would have resulted in a different outcome but for the deficiency of counsel. Clemons v. State, 732 So.2d 883, 893 (Miss.1999).

¶ 11. Counsel’s advice that a trial could result in a guilty verdict and the death penalty in a prosecution for a capital crime does not support an argument of ineffectiveness. Hill v. State, 388 So.2d 143, 146 (Miss.1980) (citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). An attorney has a duty to inform a client facing criminal charges of possible outcomes of conviction.

¶ 12. Questions about Booker’s mental competence are discussed at some length in his post-conviction filings. He alleges that he was incompetent, and that a psychiatric examination and testimony would have proved that to the jury. Booker mentions in a supplemental post-conviction motion that a doctor examined him at the Yazoo County jail and found various mental deficiencies, including that he had paranoid delusions. The motion also asserts that the circuit judge had Booker transported to a hospital in Jackson, Mississippi for evaluation prior to his trial. Booker alleges that at his guilty plea, the prosecutor introduced a document from the evaluating psychiatrist in Jackson. Booker implicitly admits that the report found him competent, and only argues that it was error not to have the doctor himself testify-

¶ 13. We conclude that there is no evidence or even assertion in Booker’s post-conviction pleadings that requires that issues regarding his mental competence be re-examined, and especially nothing to cause us to find ineffective assistance of his counsel regarding the issue.

¶ 14. Booker has failed to point to any deficiency by his counsel. The other component, that he was prejudiced by counsel’s shortcomings, therefore has also not been shown. The trial judge was justified in denying relief based on supposed ineffective assistance of counsel.

S. Illegal Sentence / Knowledge of Minimum Sentence

¶ 15. Booker argued in his motion that he never knew the minimum sentence, and he also appears to assert that the life sentence was somehow illegal. His conviction for murder contained a mandatory sentence of life imprisonment, thus constituting the minimum and maximum. Miss. Code Ann. § 97-3-21 (Rev.2006). In Booker’s motion, he admitted that he knew he would be sentenced to life imprisonment. Whether he was told that he would be eligible for parole continues to be a point of contention. We have addressed already that his plea petition explicitly acknowledged that there were no promises regarding parole, and even had some promises been made, they would not be binding on the court.

¶ 16. We conclude that Booker’s own motion reveals that he knew the sentence he would get, which in fact was the minimum and maximum. Alleged understandings regarding parole are disproved by his sworn plea petition. Booker did not present a basis to set aside his guilty plea.

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

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