text:
    COR DEVELOPMENTS, LLC, et al., Appellants v. COLLEGE HILL HEIGHTS HOMEOWNERS, LLC, Appellee.
    No. 2006-CA-01810-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2008.

      Lawrence Lee Little, Tara Beth Scruggs, attorneys for appellants.
    Omar D. Craig, Oxford, attorney for ap-pellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   CHANDLER, J., for the Court.

¶ 1. College Hill Heights Homeowners, LLC (the homeowners) filed a complaint in the Chancery Court of Lafayette County requesting an injunction to prevent COR Developments, LLC (COR) from building a fifty-unit condominium development on seven lots in the subdivision. After a hearing, the chancery court granted the injunction, finding (1) that the planned development contravened restrictive covenants applicable to the lots and (2) that COR had not followed the statutory procedure required to alter the recorded subdivision plat. COR appeals, contending that the chancellor erred (1) by finding that the proposed development constituted a re-subdivision of the lots in violation of the restrictive covenants; (2) by ignoring the plain language of the restrictive covenants; and (3) by finding that the proposed development altered the plat of College Hill Heights subdivision.

¶ 2. Although this appeal presents several questions for decision, including whether the condominium development was a “subdivision by subterfuge,” the dispositive question is whether COR had to pursue a statutory plat vacation procedure outlined at Mississippi Code Annotated section 17-1-23 (Rev.2003) or section 19-27-31 (Rev. 2003) in order to proceed with the condominium development. We answer this question in the affirmative and affirm the chancellor’s grant of an injunction preventing COR from proceeding with the condominium development or altering the subdivision plat until it secures leave to do so from the appropriate authority pursuant to section 17-1-23(4) or section 19-27-31. We reverse the chancellor’s determination that the condominium development was prohibited by the restrictive covenants running with the land.

FACTS

¶ 3. College Hill Heights is a residential subdivision located in Lafayette County northwest of the city limits of Oxford, Mississippi. The subdivision abuts the west side of College Hill Road. The original plat of the subdivision was recorded by the Lafayette County Chancery Court Clerk on July 17, 1961, by owner J.L. Adams. This plat showed forty-three lots with access provided by two streets, College Hill Drive and Adams Lane. College Hill Drive formed a loop with each end connecting to College Hill Road. To the south, Lots 3-14 were arranged along Adams Lane, which provided access from College Hill Road and ended in a cul-de-sac. College Hill Drive and Adams Lane did not intersect. In an owner’s certificate filed with the plat, Adams expressed his intent to dedicate the platted streets. A revised plat showing utility easements and lot dimensions was recorded on May 26,1962.

¶ 4. On May 9, 2005, COR purchased a tract consisting of Lots 6, 7, 8, 9, 10, 19, and 20 from John M. Rogers and Martha L. Rogers. COR hired Precision Engineering Corporation to develop a plan for a fifty-unit condominium development on the subject lots to be named “Hickory Cove.” The development was to consist of one- and two-story condominiums from 1,000 square feet to 1,800 square feet. On May 23, 2005, Kenny McCullough, a member of COR, and Ryland Sneed, a registered licensed surveyor with Precision Engineering, appeared before the Lafayette County Planning Commission and obtained preliminary approval for Hickory Cove. No representative of COR ever appeared before the Board of Supervisors concerning approval. Nor did COR notice the other landowners in the subdivision or publish any notice of the condominium development. COR cleared the land and began construction on Unit 27, attracting the attention of neighboring property owners.

¶ 5. On September 9, 2005, the homeowners filed a complaint to enjoin COR from proceeding with the condominium development. The homeowners alleged that Hickory Cove, as planned, violated the restrictive covenants running with the land. The homeowners also complained that COR had not followed statutory procedures for altering or vacating the recorded subdivision plat. The homeowners claimed that the development would (1) increase traffic flow in the subdivision, (2) increase demands on the water and sewerage system serving the subdivision, (3) increase the density of structures and occupants to an extent materially affecting the health, safety, and welfare of the entire subdivision, and (4) cause diminution of value of the other developed and undeveloped lots within the subdivision.

¶ 6. The restrictive covenants were contained in a warranty deed conveying Lots 1-20 from Adams Real Estate, Inc., to Gilbert and Joyce M. Lomax on April 24, 1970. The deed stated:

As part of the consideration for this conveyance, Lots 3 through 20, inclusively, are not to be re-subdivided, are to be used for single or multi-family residential purposes only; and no residential structure shall be constructed on said lots which does not have a fair market value including the value of the land of at least $15,000.00 for single-family residences, or $22,000.00 for mul-ti-family residences based upon the latest published commodity price index of the United States Government. These covenants and restrictions are to be construed as covenants running with the land.

The warranty deed from the Rogerses to COR stated that “[t]he warranty herein contained is subject to, and there is excepted therefrom, those certain restrictive covenants set out and contained in [the Lomax deed].” The homeowners sought to show that the planned fifty-unit condominium development violated the prohibition against re-subdividing the lots and/or that the condominiums violated the restriction that the lots be used for “single or multi-family residential purposes only.” COR put on testimony that a condominium development is considered to be a multifamily use and that, due to the unique way in which condominiums are owned, a condominium development does not require subdividing the property on which the development lies.

¶ 7. The homeowners also sought to prove that the Hickory Cove project required statutory alteration of the recorded College Hill Heights subdivision plat because the project would obliterate the platted interior lot lines, utility easements, and a portion of the right-of-way of Adams Lane. Two sections of the Mississippi Code of 1972 Annotated prescribe procedures through which a landowner may secure alteration or vacation of a map or plat. Mississippi Code Annotated section 19-27-31 (Rev.2003) permits the landowner to petition the chancery court for relief, naming the persons adversely affected or directly interested in the proposed alteration or vacation of the map or plat. Alternatively, under section 17-1-23(4), the landowner may secure relief by petitioning the Board of Supervisors provided the petition includes the written agreement of all adversely affected or directly interested parties. Under these statutes, a landowner wishing to alter or vacate a map or plat may seek relief from the Board of Supervisors only if the landowner has obtained approval from all directly interested or adversely affected persons; otherwise, the landowner’s sole avenue for relief is by petitioning the chancery court under section 19-27-31.

¶ 8. Throughout the proceedings, COR maintained that Hickory Cove would not require alteration or vacation of the recorded plat of the College Hill Heights subdivision and for that reason the chan-eery court procedure, with its requirement of notice to directly interested or adversely affected persons, was unnecessary for COR to proceed with the development. It was established that the recorded plat of College Hill Heights subdivision showed utility easements on each of the seven lots owned by COR. The plat showed that Lots 6, 7, 8, 9, and 10 abutted Adams Lane, with Lots 7, 8, 9, and 10 situated on the cul-de-sac. Lots 19 and 20 were behind Lots 9 and 10 and fronted College Hill Drive.

¶ 9. According to the map of the Hickory Cove project that was admitted into evidence, the development’s fifty freestanding condominium units were to be situated around a circular road with access from College Hill Drive through Lots 19 and 20. Ryland Sneed, a registered land surveyor, testified that according to the plan for Hickory Cove, there would be units on all seven lots, with some situated over the interior lot lines and utility easements depicted on the recorded subdivision plat. Also, the Hickory Cove development would utilize a portion of the platted Adams Lane, including the entire cul-de-sac, for condominium units and common areas.

¶ 10. Sneed stated that, although Adams Lane appeared on the College Hill Heights subdivision plat, the lane had never been constructed or opened and did not “exist on the ground.” He further testified that an owner of Lots 3, 4, 11, 12, 13, and 14, which together abutted College Hill Road, had built a house partially obstructing the Adams Lane right of way. In Sneed’s opinion, Adams Lane was unusable as platted due to this obstruction. Sneed stated that the utility easements shown on the plat were undeveloped and would be “obliterated” or moved to different locations as needed to provide utility service to the condominiums. Sneed opined that because Hickory Cove would not exceed the exterior boundaries of the subdivision, the recorded subdivision plat did not require alteration to reflect the changes to be wrought by Hickory Cove. Corbert Jones, a county planner for Lafayette County, testified that, in his opinion, Hickory Cove would be a revision or alteration of the recorded plat of College Hill Heights subdivision.

¶ 11. The chancery court found that the planned condominium development was, in practical effect, a “subdivision by subterfuge” in violation of the restrictive covenants prohibiting re-subdivision of the seven lots. Further, the chancellor found that the Hickory Cove project contravened the restrictive covenants because the covenant drafters had intended a family-type subdivision and they could not have envisioned that “multi-family” development could signify a condominium project with “one hundred and fifty-three parking spaces.” Also, the chancellor found from Jones’s testimony that Hickory Cove did require an alteration of the recorded plat of College Hill Heights subdivision. The chancellor stated, “there was not only a violation or an alteration of this plat, there is virtually an obliteration of this plat and alteration thereof without authorization, without following the proper statutory procedures .... ” The chancellor found that insufficient notice had been given as required under the plat vacation statute and that the plat was not properly vacated though it would be altered by the proposed condominium development. In a September 19, 2006, order dated nunc pro tunc August 29, 2006, the chancellor decreed that COR was enjoined from developing Hickory Cove as proposed and approved. Likewise, the order enjoined COR from altering the recorded plat of College Hill Heights subdivision until full compliance with the statutes occurred.

STANDARD OF REVIEW

¶ 12. This Court’s review of the decision of a chancellor is limited. Nichols v. Funderburk, 883 So.2d 554, 556(¶ 7) (Miss. 2004). We will reverse only when the chancellor’s determinations were manifestly wrong, clearly erroneous, or lacked the support of substantial, credible evidence. In re Estate of Holmes, 961 So.2d 674, 679(¶ 11) (Miss.2007). However, we review all questions of law de novo. Bailey v. Estate of Kemp, 955 So.2d 777, 781(¶ 15) (Miss.2007).

LAW AND ANALYSIS

I. WHETHER THE CHANCELLOR ERRED BY FINDING THAT THE PROPOSED HICKORY COVE DEVELOPMENT CONSTITUTED A RE-SUBDIVISION OF LOTS 6, 7, 8, 9, 10, 19, AND 20 OF COLLEGE HILL HEIGHTS SUBDIVISION.

¶ 13. Attacking the chancellor’s finding that Hickory Cove constituted a “subdivision by subterfuge,” COR argues that Hickory Cove would not violate the covenant against re-subdividing the lots because a condominium development does not necessitate subdivision of the property on which it lies. COR points to the testimony of Corbert Jones. Jones testified, “[ojwnership does not affect the dividing of the lots” such that there could be several condominium units on one lot but the sale of one of those units would not divide the lot. According to Charles Wren, an engineer and former planning director for Lafayette County, in a condominium development there is no division of land into tracts or parcels. For that reason, Wren testified, the planning commission subjects condominium developments to a site plan review procedure that is more relaxed than the formal review procedure for new subdivisions, which requires final approval by the Board of Supervisors. Wren stated that the primary purpose of presenting a new condominium development to the planning commission is merely to notify the county of the new addresses and new utility requirements, and no Board of Supervisors approval is required.

¶ 14. Title 89, Chapter 9 of the Mississippi Code of 1972 Annotated contains the Mississippi Condominium Law. Miss.Code Ann. § 89-9-1 (Rev.1999). “Condominium” is defined as “that form of ownership of property under which units of improvements are subject to ownership by different owners and there is appurtenant to each unit as part thereof an undivided share in the common areas.” Miss.Code Ann. § 89-9-5(1) (Rev.1999). A condominium is an estate in real property. Miss. Code Ann. § 89-9-7 (Rev.1999). It consists of the following:

an undivided interest in common in a portion of a parcel of real property together with a separate interest in space in a residential, industrial, or commercial building on such real property, such as an apartment, office, or store. A condominium may include in addition a separate interest in other portions of such real property.

Id. The estate may “be in fee simple, leasehold, or any other estate in real property recognized by law.” Id. A “unit” is those elements of a condominium which are not owned in common with the other condominium owners in the project. Miss. Code Ann. § 89-9-5(2) (Rev.1999). “Common areas” comprise the entire project except the units. Miss.Code Ann. § 89-9-5(4) (Rev.1999). Property taxes are assessed on the unit and common areas, not on the project as a whole. Miss.Code Ann. § 89-9-31(1) (Rev.1999). Each unit, with common areas, is separately assessed as a single parcel for ad valorem taxes and special assessments. Id.

¶ 15. Hickory Cove was planned as a fifty-unit condominium development. We must determine whether the establishment of Hickory Cove on the seven lots would constitute a re-subdivision of those lots in violation of the restrictive covenants. The general rule concerning restrictive covenants in Mississippi is that in the case of ambiguity they will be construed most strongly against the party seeking to enforce the restriction. City of Gulfport v. Wilson, 603 So.2d 295, 299 (Miss.1992) (quoting Kemp v. Lake Serene Prop. Ovmers Ass’n, Inc., 256 So.2d 924, 926 (Miss.1971)). However, “[t]he language of restrictive covenants is to be read ‘in its ordinary sense,’ considering the entire document as well as the circumstances surrounding its formulation to ascertain its meaning, purpose and intents.” Stokes v. Bd. of Dirs. of La Cav Improvement Co., 654 So.2d 524, 527 (Miss.1995). A restriction expressed in unambiguous language will be enforced. Andrews v. Lake Serene Prop. Owners Ass’n, Inc., 434 So.2d 1328, 1331 (Miss.1983). But, the restrictions should not be extended by strained construction, especially when the use sought to be restricted is clearly permitted by the covenants. Wilson, 603 So.2d at 299 (quoting Kinchen v. Layton, 4SFI So.2d 343, 346 (Miss.1984)).

¶ 16. In Lake Castle Lot Owners Ass’n v. Litsinger, 868 So.2d 377, 380(¶ 12) (Miss.Ct.App.2004), this Court considered an argument that the relocation of an interior lot line was a re-subdivision of the lots in violation of protective covenants. Just as in this case, the covenants did not define the term “re-subdivision.” Id. The property owner, seeking to move the line, argued that “re-subdivision” was incapable of being defined or that the relocation of an interior lot line was not a re-subdivision because such action does not create a new lot. Id. The lot owners’ association contended the line relocation was a re-subdivision, and the word “subdivision” means “to divide a part into smaller parts of the same thing or subject matter and the prefix ‘re’ simply means to do it again.” Id. at (¶ 13). The Court did not determine the meaning of “re-subdivision” because even applying the definition urged by the lot owners’ association the relocation of the line between two lots created no smaller parcel; thus, it did not constitute a re-subdivision. Id. at 380(¶ 14).

¶ 17. COR promotes a definition of “subdivision” as “the division of a thing into smaller parts.” Black’s Law Dictionary 1437 (7th ed.2000). COR argues that a condominium development involves division of ownership of the land rather than division of the land itself; therefore, a condominium development does not meet its definition of subdivision and does not constitute a re-subdivision of the lots. The homeowners do not take issue with COR’s proposed definition, but they argue that the division of the seven lots into fifty condominiums could be nothing other than subdivision of the platted lots.

¶ 18. Mississippi Condominium Law specifically states that what is divided in a condominium project is not a tract of land, but the ownership thereof. Miss.Code Ann. § 89-9-5(5) (Rev.1999). A condominium development splices the ownership of a tract of land into multiple estates, each consisting of a unit coupled with a share of the common areas. Miss.Code Ann. § 89-9-5(1). It does not involve the creation of new, smaller lots from the extant tract. We must determine whether the word “re-subdivided,” contained in the covenants, encompassed division of ownership of the encumbered lots. Certainly, the term “re-subdivided” does not plainly or unambiguously mean division of land ownership, and we conclude that the term cannot be interpreted so broadly. Construing the term “re-subdivided” most strongly against the homeowners and in favor of COR, the prohibition that the lots were not to be re-subdivided meant that the platted lots were not to be divided into smaller tracts of land and then re-platted as a subdivision. It would be unreasonable to find that the covenant drafters intended that a lot owner, who alienated a portion of a lot without assigning it a separate lot number, was engaged in prohibited re-subdividing. This is especially so in light of the covenant’s allowance of multi-family residential structures on the lots, which contemplates more than one property owner per lot. We find that the chancellor manifestly erred by finding that the condominium development violated the covenant against re-subdividing the lots.

II. WHETHER THE CHANCELLOR ERRED BY PROVIDING HIS OWN INTERPRETATION OF THE INTENT OF THE PROTECTIVE COVENANTS APPLICABLE TO LOTS 6, 7, 8, 9, 10, 19 AND 20 OF COLLEGE HILL HEIGHTS SUBDIVISION.

¶ 19. The covenants specifically permitted use of the property for multifamily, residential purposes provided that a multi-family residential structure on the lots have a fair market value of more than $22,000, based upon the latest published commodity price index of the United States government. The trial testimony established that the fair market value of each condominium structure would far exceed that required by the covenants. The chancellor found that the Hickory Cove project would violate the covenants because the covenant drafters could not have envisioned that multi-family residential purposes could include a fifty-unit condominium development. COR argues that this finding ignored the plain language of the covenants and substituted the chancellor’s own contrary interpretation.

¶ 20. We have already determined that the covenant against re-subdividing the lots did not prohibit the Hickory Cove development. Now, we consider whether the chancellor correctly found that the covenants prohibited Hickory Cove because the drafters could not have intended this type of condominium development. The sole evidence concerning the meaning of the term “multi-family” was the testimony of Sneed and Jones that condominiums were considered multi-family residences for zoning purposes. There was no evidence brought out at the hearing regarding whether, at the time of the drafting of the covenants in 1970, the phrase “multifamily residential purposes” would have been understood to include a condominium development. At oral argument in this case, the homeowners expressed their belief that the covenants would permit condominiums or duplexes provided the structures were located within the interior lot lines and setback lines and the right of way of Adams Lane was undisturbed. The homeowners opined that, with these restrictions, two condominiums or duplexes per lot would be the feasible limit.

¶ 21. When the language of a restrictive covenant is ambiguous, the circumstances surrounding the formation of a restrictive covenant must be considered in addition to the language of the covenant to ascertain its meaning, purpose, and intent. Stokes, 654 So.2d at 527. Ambiguous covenants are to be construed most strongly against the party seeking to enforce the restriction, here, the homeowners. Wilson, 603 So.2d at 299. It is apparent from the chancellor’s finding that he considered the term “multi-family residential use” to be ambiguous as to whether this use would include the Hickory Cove condominium project. Having found the term ambiguous, the chancellor looked to the intent of the covenant drafters and found that they could not have intended a large-scale development like Hickory Cove. However, no evidence was brought out at the hearing pertaining to whether, in 1970, the term “multi-family residential purposes” would have included condominiums. All of the evidence before the chancellor pertaining to the definition of multi-family residential use was that it included condominiums. By finding that the covenant’s drafters intended to prohibit condominiums, the chancellor effectively construed the covenants against COR and in favor of the homeowners. This was manifest error. We find that the chancellor clearly erred in finding that the covenants prohibited a condominium development like Hickory Cove.

III. WHETHER THE CHANCELLOR ERRED IN FINDING THAT HICKORY COVE WOULD AMEND AND OBLITERATE THE ORIGINAL PLAT OF COLLEGE HILL HEIGHTS SUBDIVISION.

¶ 22. Authority is bestowed upon the chancery court by section 19-27-31 to alter or vacate maps and plats upon petition by a landowner. Miss.Code Ann. § 19-27-31; City of Wiggins v. Breazeale, 422 So.2d 270, 272 (Miss.1982). Section 19-27-31 states:

If the owner of any land which shall have been laid off, mapped, or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, shall be desirous of altering or vacating such map or plat, or any part thereof, he may, under oath, petition the chancery court for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated, or altered, and the names of the persons to be adversely affected thereby, or directly interested therein. The parties so named shall be made defendants thereto, and publication of summons shall be made one time in a newspaper published, or having a general circulation, in the county where the land is situated, and which publication shall clearly state the objects and purpose of the petition. At any time after the expiration of five days from said publication and the service of process upon the named defendants, the cause or proceeding shall be triable, and the court in term time or the chancellor in vacation may hear the petition and all objections from any person thereto, and may decree according to the merits of the case. However, where all adversely affected or directly interested persons join in said petition, the same may be finally heard and determined by the court or chancellor at any time. If the decree vacate, in whole or in part, or alter the map or plat, it shall be recorded as a deed, and a memorandum thereof noted on the record of the map or plat.

A more recently enacted statutory subsection gives the Board of Supervisors authority to alter or vacate a map or plat upon petition by the landowner, desiring the change, accompanied by the written agreement of the persons to be adversely affected by or directly interested in the change. Section 17-1-23(4) states:

If the owner of any land which shall have been laid off, mapped or platted as a city, town or village, or addition thereto, or subdivision thereof, or other platted area, whether inside or outside a municipality, desires to alter or vacate such map or plat, or any part thereof, he may petition the board of supervisors of the county or the governing authorities of the municipality for relief in the premises, setting forth the particular circumstances of the case and giving an accurate description of the property, the map or plat of which is to be vacated or altered and the names of the persons to be adversely affected thereby or directly interested therein. However, before taking such action, the parties named shall be made aware of the action and must agree in writing to the vacation or alteration. Failure to gain approval from the parties named shall prohibit the board of supervisors or governing authorities from altering or vacating the map or plat, or any part thereof. Any alterations of a plat or map must be recorded in the appropriate location and a note shall be placed on the original plat denoting the altered or revised plat. No land shall be subdivided nor shall the map or plat of any land be altered or vacated in violation of any duly recorded covenant running with the land.

¶ 23. The evidence established that Hickory Cove, as planned, would involve building condominiums over interior lot lines, utility easements, and a portion of the right of way of Adams Lane, all features depicted on the recorded plat of College Hill Heights subdivision. The chancellor held that building Hickory Cove would necessitate statutory alteration of the plat and enjoined COR from proceeding with construction of Hickory Cove until such time as it had secured alteration of the plat in conformance with statutory procedures. COR contends that this ruling was error, advancing the alternative arguments that (1) compliance with the statutory plat alteration procedure is not mandatory; (2) the plat alteration procedure was unnecessary because Hickory Cove would not create new interior lot lines or require alteration of the exterior boundaries of the subdivision; (3) the plat of College Hill Heights has already been altered through the abandonment of Adams Lane and the utility easements; and (4) building over interior lot lines does not require alteration of a plat.

¶ 24. COR first argues that compliance with the statutory procedure is permissive, not mandatory, because both statutes provide that a landowner desiring to alter a plat “may” petition for relief. In other words, COR argues, a landowner may alter a map or plat without resorting to the procedure under either statute. This argument is without merit. The primary rule of statutory construction requires this Court to determine the intent of the Legislature “from the statute as a whole and from the language used therein.” MIC Life Ins. Co. v. Hicks, 825 So.2d 616, 621(¶ 12) (Miss.2002). If possible, this Court must read the entire statute in a manner that harmonizes all of its parts consistent with its scope and object. McKnight v. Mound Bayou Pub. Sch. Dist, 879 So.2d 493, 497-98(¶ 15) (Miss.Ct. App.2004) (quoting Ellison v. Mobile & O.R. Co., 36 Miss. 572, 585 (1858)). And, we “will not impute an unjust or unwise purpose to the legislature when any other reasonable construction can save it from such imputation.” Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 510, 62 So.2d 772, 775 (1953).

¶ 25. Section 19-27-31 requires mandatory notice and an opportunity to be heard for those persons directly interested in or adversely affected by a landowner’s proposed alteration or vacation of a map or plat, followed by an adjudication on the merits by the chancery court. It is only when the directly interested or adversely affected persons agree in writing that the landowner may secure the vacation or alteration from the Board of Supervisors under section 17-1-23(4). It would be absurd for the Legislature to have intended for the landowner, at his option, to forego these procedures, yet secure identical relief. Moreover, the supreme court has consistently viewed the statutory plat alteration procedure as mandatory for a landowner to secure alteration or vacation of a plat or map. See Barrett v. Ballard, 483 So.2d 304, 306 (Miss.1985); Reinecke v. Reinecke, 105 Miss. 798, 806, 63 So. 215, 216 (1913). In these statutes, the word “may” merely signifies that a landowner may seek relief under the statutes, or instead may content himself with the status quo.

¶ 26. COR’s next argument relies on an Attorney General’s opinion for the proposition that the statutory plat alteration procedure is not implicated because Hickory Cove would not create new interior lot lines or change the external boundaries of the subdivision. In the Attorney General’s opinion, a developer wanted to convey a portion of a platted tract but not assign the portion a separate lot number, and the city attorney wanted to know whether the developer had to comply with section 19-27-31. COR relies on the following language:

This office has opined that Section 19-27-31 sets out the procedure to change a subdivision plat. It does not dictate when or under what circumstances a plat must be changed. One can convey a portion of a lot without giving the conveyed portion a separate lot number and without having the conveyance marked off on the subdivision plat. However, if the external boundary of the subdivisions are to be changed, or if the portion which is to be resubdivided is to be given a separate lot number and be designated on the plat, then the official subdivision plat would necessarily have to be amended pursuant to Section 19-27-31. MS AG Op. Gamble, (May 12, 1993).
Further, we have opined there is no requirement that an amended plat be filed every time a portion of a lot is conveyed by deed to another. In other words, one can convey a portion of a lot without giving the conveyed portion a separate lot number and without having the conveyance marked off on the subdivision plat. MS AG Op. Lacoste (May, 1991).

Op. Att’y Gen. Mitchell (May 17, 2002). “An attorney general’s opinion is entitled to careful consideration and regarded as persuasive; however, the opinion i[s] not binding upon the court considering the same question of law.” Blackwell v. Miss. Bd. of Animal Health, 784 So.2d 996, 1000(¶ 9) (Miss.Ct.App.2001). While the Attorney General’s opinion states that assigning a portion of platted land a separate lot number or changing the external boundaries of a subdivision requires the statutory plat alteration procedure, the opinion does not limit the applicability of the statutory procedure to solely those circumstances.

¶ 27. The evidence showed that Hickory Cove would involve building condominium units over: (1) platted interior lot lines, (2) a portion of the platted Adams Lane right of way, and (3) platted utility easements. COR argues that a landowner owning adjoining lots may build improvements over interior lot lines without having to petition for alteration of the subdivision plat. Concerning the easements and road right of way, COR argues that these features have been abandoned; thus, the plat has already been altered. We find that COR’s plan to incorporate part of the platted right of way of Adams Lane into its private condominium development and to obliterate or move the platted utility easements were sufficient to mandate its compliance with the statutory plat alteration procedures.

¶28. A landowner’s development of platted land in a manner conflicting with streets and easements appearing on the plat has been recognized as an activity requiring compliance with the statutory procedures. Barrett, 488 So.2d at 305; Breazeale, 422 So.2d at 272. In Barrett, a recorded plat reflected a subdivision designed for single-family dwellings located in the City of Philadelphia. Barrett, 483 So.2d at 305. The plat showed that streets would be constructed through the subdivision. Id. The city subsequently re-zoned the subdivision for commercial uses, and a developer began constructing multi-family housing on the property. Id. However, the water and sewer lines had already been laid pursuant to the single family plat, and the city informed the developer that its construction obstructing the lines was unauthorized. Id. The developer filed a petition, joined by the city, to vacate the plat pursuant to section 19-27-31, arguing that the plat should be vacated because the platted streets were never constructed. Id. The petition was granted by the chancery court. Id. Shortly thereafter, nearby landowners petitioned to set the decree aside, arguing that they had not been given proper notice under the statute. Id. They further argued that the deletion of the platted streets imposed a severe hardship on them by diminishing the value of their property and limiting their access to a street running south of the subdivision. Id. Forty-nine other citizens of Philadelphia subsequently filed a motion to intervene. They argued that they were affected by the decree vacating the plat, and they had never received any statutory notice. Id. The chancellor denied the motion to intervene and the original petition for lack of due diligence. Id.

¶ 29. The supreme court reversed the judgment of the chancery court because the developer and city had failed to comply with the statutory notice procedure contained in section 19-27-31. Id. at 306. They had never published a summons in a county newspaper of general circulation. Id. at 305. The supreme court stated:

The Barretts and the forty-nine other would-be intervenors may have rights subject to adjudication and could be adversely affected by the proceedings begun by [the developer]. It is axiomatic that before one may be judicially deprived of a right, he must be given (a) reasonable advance notice of a hearing, at which (b) he is afforded a meaningful opportunity to assert and defend that right, [citations omitted.]
This principle of hornbook constitutional law has been implemented in the legislative enactment which vests in the chancery courts authority to hear and adjudicate a proceeding to alter or vacate a plat.

Id. The court held that the decree vacating the plat was invalid because it was obtained without legally adequate and timely notice as required by the statute. Id. at 306-07.

¶ 30. To like effect is City of Wiggins, involving the deletion of streets from a plat. In that case, Breazeale filed a petition under section 19-27-31 to vacate portions of two platted city streets, averring that the portions had never been opened or used as streets and were of no value to anyone save Breazeale. Breazeale, 422 So.2d at 270. The city argued that the chancery court lacked jurisdiction to entertain the petition because another statute gave the city jurisdiction to close streets. Id. The supreme court rejected the city’s argument and held that both a municipality and the chancery court possess authority to close and vacate streets. Id. at 272. Focusing on the applicability of section 19-27-31 to the closing of streets and other public ways, the supreme court stated:

Where the part of a plat or subdivision to be altered involves a street, alley, or property dedicated to the public, the logical sense of the statute is that such areas have never been opened and used for those purposes. When the plat is altered or vacated, those areas, for all practical purposes, are expunged from the plat and it becomes a recorded plat with such street, alley, or public property not included or appearing therein.

Id. at 271. The supreme court noted the statutory requirement that persons adversely affected by or directly interested in a proposed plat alteration, including the municipality or county, be given notice and the right to appear, object, and give reasons why the plat should not be altered or vacated. Id.

¶ 31. Pursuant to Barrett and Breaz-eale, we hold that COR was required to secure alteration of the plat before proceeding with development that would obliterate a significant portion of the platted right of way of Adams Lane and all the platted utility easements on the subject lots.

¶ 32. We now address COR’s argument that, even if plat alteration was required for it to proceed with the construction of Hickory Cove, the plat has already been altered through the non-use of Adams Lane and the utility easements. COR avers that Adams Lane was never dedicated to public use and that, even if it was, its non-use as a public thoroughfare and the construction of a house in its right of way amounted to an abandonment by the county such that the land reverted to the abutting landowners. In resolving this issue, we first discuss the law applicable to COR’s arguments about the legal status of Adams Lane and the utility easements and then proceed to COR’s contention that their non-use has altered the plat of College Hill Heights subdivision.

¶ 33. The protracted non-use of a public road for an extended period of time creates a presumption of abandonment. R & S Dev., Inc. v. Wilson, 534 So.2d 1008, 1010 (Miss.1988). This presumption is strengthened by acts acquiesced in by the governing authority which are inconsistent with a public right and show an intent to abandon, such as the placement of physical obstructions in the public way. Id. at 1011. These principles are applicable to county roads as well as to municipal streets. McNeely v. Jacks, 526 So.2d 541, 544 (Miss.1988) (“if the public’s exclusion from a public [county] road is so complete and continuous that, were adverse possession being claimed against a record title holder the claim would be honored, our law decrees abandonment.”). Easements also may be abandoned through protracted non-use for an extended time period. Bivens v. Mobley, 724 So.2d 458, 461(¶ 11) (Miss.Ct.App.1998).

¶ 34. COR also disputes that Adams Lane ever became a county road subject to abandonment because its dedication was never accepted by the county. The homeowners argue that Adams Lane is a dedicated public road pursuant to Mississippi Code Annotated 17-1-23(3). Section 17-1-23(3) provides that where a map or plat is submitted to and approved by the governing authorities of a municipality, all streets, roads, alleys and other public ways shown on the plat are dedicated to public use. These platted roads, whether opened or unopened, cannot be used otherwise unless the plat is vacated in the manner provided by law. Miss.Code Ann. § 17-1-23(3). Though urged by the homeowners, this statute does not govern in the present case because it applies only to municipalities, not counties. However, it is the law in this State that:

a public road may be created by prescription or by dedication, as well as by being laid out and established in accordance with statutory provisions, where the general public or several freeholders or householders of the county are interested in the road, and where the public interest or convenience requires a road to be established.... [A] settlement or neighborhood road may become a public road by prescription from user for the period required by law; and also ... a public road may be established by dedication by the landowner donating the right-of-way and where the public authorities accept the dedication by taking over and maintaining such a road at public expense, without having followed the statutory proceeding.

Coleman v. Shipp, 223 Miss. 516, 530-31, 78 So.2d 778, 784 (1955) (emphasis added); see Miss.Code Ann. § 65-7-4.1 (Rev.2005) (recognizing that roads may become county roads through “dedication, under the methods provided by statute, or by prescription and required by public convenience and necessity.”). The Attorney General’s Office has opined that a road that has been platted and dedicated by the landowner for public use, but never accepted and maintained by the county, remains subject to acceptance by the county in the future pursuant. to the dedication. Op. Att’y Gen. Parker (May 14, 2004).

¶ 35. The issues of whether Adams Lane was a public road and whether it and the utility easements have been abandoned are not determinative of whether COR could forego the statutory plat alteration procedures. Contrary to COR’s argument, a road and utility easements appearing on a plat cannot dematerialize from the recorded plat upon a landowner’s unilateral conclusion that these features have been abandoned. Rather, questions pertaining to the legal status of platted roads and utility easements, such as whether these features have been abandoned and should be removed from the plat, are properly submitted to the chancery court pursuant to section 19-27-31 for determination on the merits. The purpose of the plat alteration statute is to channel these questions before the chancellor for determination after proper notice to all directly interested or adversely affected parties, which may include the county or municipality. See Breazeale, 422 So.2d at 271. It is only after these proceedings have occurred that the chancellor may alter the plat. Barrett, 483 So.2d at 306-07. Moreover, it is clear that considerations beyond the legal status of a platted feature should come into play in the chancellor’s determination of whether to remove the feature from the plat under section 19-27-31. This is because the chancellor is to render the decision “according to the merits of the case” after all the interested parties have been given an opportunity to be heard. Miss.Code Ann. § 19-27-31; see Barrett, 483 So.2d at 305.

¶ 36. In conclusion, for this Court to determine that the plat has been altered through abandonment of the road and easements, when there has been no chancery court determination after proper notice under section 19-27-31, would be to permit COR to sidestep the procedure for plat alteration that has been prescribed by the Legislature. This we cannot do; therefore, we affirm the decision of the chancery court. COR remains enjoined from proceeding with the development of Hickory Cove until such time as it has secured leave to do so after proper plat alteration proceedings pursuant to section 19-27-31 or section 17-1-23(4).

¶ 37. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART. THE COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.

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

      . Adams Lane was not used as access to this house, which had separate private driveway access from College Hill Road.

      . According to the minutes of the planning commission meeting, Sneed represented that the Hickory Cove development would have one hundred and fifty-seven parking spaces.

      . The statutory proceeding for laying out or changing a county road is found at Mississippi Code Annotated section 65-7-57 (Rev. 2005).


source: Caselaw Access Project

author: MYERS, J., for the Court.

license: Public Domain

text:
    S.L. ROBINSON and Jo Dell Robinson, Appellants v. LINCOLN COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2006-CA-01261-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2008.

      W. Stewart Robison, McComb, José B. Simo, attorneys for appellants.
    Robert 0. Alien, Brookhaven, attorney for appellee.
   MYERS, J., for the Court.

¶ 1. The Lincoln County Board of Supervisors dedicated Greenwich Lane, located in northwest Brookhaven, Mississippi, as a public road through the method of prescription. The decision was appealed by S.L. Robinson and Jo Dell Robinson (S.L. Robinson); however, his appeal was denied and Greenwich Lane remained listed in the Lincoln County Road System Register and Official Map of Lincoln County Roads. Subsequently, the Lincoln County Circuit Court affirmed the decision of the Board of Supervisors. Robinson appeals, arguing that there was no evidence presented at the hearing on the matter establishing that Greenwich Lane was used by the public in general for a period of ten years, so as to satisfy the requisite factors of prescription. Finding no error, we affirm.

UNDERLYING FACTS AND PROCEDURAL HISTORY

¶ 2. Brothers S.L. Robinson and Robert Earl Robinson own real properties located in northwest Brookhaven in Lincoln County, Mississippi. Greenwich Lane, the road in dispute, runs alongside the Robinsons’ properties, and just inside the eastern boundary of Robert Robinson’s property. The road services both S.L.’s and Robert’s family homes and properties and provides ingress and egress to Robert’s vegetable farm.

¶ 3. Greenwich Lane was originally constructed at the direction- of the Board of Supervisors in 1967. Later, in 1984, Greenwich Lane was paved under the direction of the Board of Supervisors. Public funds were used to finance the construction and later paving of the road.

¶ 4. In 2003, Greenwich Lane was added to the Lincoln County Road System Register and Official Map of Lincoln County Roads by the county’s Board of Supervisors. Thereafter, S.L. Robinson petitioned the Board of Supervisors to delete Greenwich Lane from the register and official map, or, alternatively, to abandon Greenwich Lane as a public road. The Board of Supervisors conducted a public hearing following the filing of the petition, and testimony was taken from several witnesses, including adjacent landowners, S.L. Robinson and Robert Robinson. Several exhibits were also introduced at the hearing. At the close of the hearing, the Board of Supervisors denied S.L. Robinson’s petition, and resolved that Greenwich Lane had been maintained by the county and used by the public for the requisite period of time to become a public road by prescription.

¶ 5. S.L. Robinson filed a bill of exceptions with the circuit court; however, the circuit court affirmed the decision of the Board of Supervisors. The circuit court found that Greenwich Lane was used by the general public for more than ten years, thereby satisfying the requisite factors of prescription. Aggrieved, S.L. Robinson has perfected this appeal.

STANDARD OF REVIEW

¶ 6. An appellate court is not to disturb a resolution of a Board of Supervisors unless such order was “unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency’s scope or powers; or violated the constitutional or statutory rights of the aggrieved party.” Ladner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638(¶ 6) (Miss.2001) (quoting Board of Law Enforcement Officers Stds. & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996)); Barnes v. Board of Supervisors, 553 So.2d 508, 511 (Miss. 1989).

DISCUSSION

¶ 7. S.L. Robinson argues that the Board of Supervisors, and subsequently, the circuit court, erred in finding that Greenwich Lane was a public road by prescription. In order to acquire a road by prescription, it must be established that the use of the road has been (1) open, notorious and visible, (2) hostile, (3) under claim of ownership, (4) exclusive, (5) peaceful, and (6) continuous and uninterrupted for a period of ten years. Turner v. Duke, 736 So.2d 495, 498(¶ 10) (Miss.Ct.App. 1999). Additionally, “the road must be habitually used by the public in general for a period of ten years; and such use must be accompanied by evidence, other than mere travel thereon, of a claim by the public of the right so to do.” Id. (quoting Myers v. Blair, 611 So.2d 969, 971 (Miss. 1992) (adopting additional requirement to establish a public road by prescription); Burdsal v. Marshall County, 937 So.2d 45, 49(¶ 11) (Miss.Ct.App.2006)).

¶ 8. Specifically, S.L. argues that insufficient evidence was presented to the Board of Supervisors regarding the use of the road by the “public in general.” Thus, S.L. asserts that because the additional element of the public’s general use remained unproven, the Board should not have found prescription of Greenwich Lane. Rather, S.L. asserts that Greenwich Lane is a private driveway and seeks to have the road re-established as such.

¶ 9. At the hearing on the matter, testimony was taken from several witnesses, including Robert Robinson, S.L. Robinson and Former Lincoln County Supervisor Roland Ross. Testimony from both S.L. and Robert established that Greenwich Lane had, in the past, been used by the school bus continuously. Robert provided at the hearing that Greenwich Lane has been maintained by the county since its inception and paving. Specifically, Robert testified that the county maintained Greenwich Lane, bearing the responsibility of repairing potholes and grading the road with county equipment. Furthermore, perhaps the most convincing testimony in favor of upholding the finding of prescription was presented at the hearing by Robert Robinson and Roland Ross. Ross and Robert Robinson provided that members of the general public continually accessed Robert Robinson’s vegetable farm through Greenwich Lane. Testimony provided that the public’s use of the lane is especially busy during the summer months, when Robert’s vegetable farm customers ingress and egress to the farm via Greenwich Lane every day.

¶ 10. From the testimony before the Board of Supervisors concerning the public’s use of Greenwich Lane, we cannot say that the circuit court erred in upholding the Board’s decision finding that the road had become public by prescription. Adequate proof was presented regarding the public’s general use of Greenwich Lane. We therefore affirm the decision of the Circuit Court of Lincoln County finding that Greenwich Lane is a public road.

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

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: LEE, P.J., for the Court.

text:
    Ruth POTTER, Appellant v. Rodtrellus GREENE, Appellee.
    No. 2006-CA-01009-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2008.

      Ali Muhammad Shamsiddeen, Jackson, for Appellant.
    William F. Jordan, Jackson, for Appel-lee.
    Before LEE, P.J., IRVING and ' ROBERTS, JJ..
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On January 14, 1997, a daughter was born to Ruth Potter and Rodtrellus Greene. In June 2002, Greene filed a petition in the Rankin County Chancery Court for visitation and other relief. Greene, who had been living near Atlanta, Georgia, since his daughter’s birth, was awarded reasonable visitation with his daughter. The chancellor also ordered Greene to pay $300 per month in child support, as well as one-half of the child’s medical expenses. Although Greene had always acknowledged that he was the natural father, the chancellor established paternity and ordered the child’s birth certificate to be changed to reflect Greene as her natural father. In May 2003, Potter was found in contempt for failing to allow Greene to exercise his visitation rights and she was ordered to pay Greene’s reasonable attorney’s fees.

¶2. According to the record, in June 2003 the child was interviewed by a clinical therapist at the Mississippi Children’s Advocacy Center after Potter accused Greene of abusing their daughter. In May 2004, the Rankin County Youth Court entered an order requiring Greene and Potter to schedule a psychological assessment of the child with Dr. Criss Lott. The youth court also ordered both Greene and Potter to submit to a psychological assessment by Dr. Lott. The child was appointed a guardian ad litem.

¶ 3. On June 22, 2004, the youth court conducted a review hearing. The youth court found that Potter had neither met with Dr. Lott for her assessment nor presented the child for her assessment. At the time of the hearing, Greene had met with Dr. Lott. The youth court, pursuant to the guardian ad litem’s recommendation, suspended visitation with both parents and placed the child in the custody of the Department of Human Services. Shortly thereafter, Dr. Lott submitted his recommendation to the court, finding that the allegations of abuse were unfounded. Dr. Lott suspected that Potter had been coaching the child and telling the child that Greene was not her biological father. Dr. Lott recommended that the child continue her previously scheduled visitation with Greene. On July 2, 2004, the youth court judge ordered the custody of the child to remain with DHS, but he allowed the child visitation with her father for the next month.

¶ 4. Primary physical custody of the child was eventually returned to Potter. Over the next two years various motions were filed by both parties, including motions by Greene alleging contempt and seeking a modification of child support. Another guardian ad litem, Carol West, was appointed by the chancellor. West submitted her report to the chancellor outlining her findings. West recommended that physical custody should remain with Potter, but Greene’s visitation should be expanded to counteract Potter’s “record of hostility toward [Greene] and her history of interfering with his court ordered visitation.”

¶ 5. After a hearing on various motions, the chancellor awarded primary physical custody of the child to Greene. The chancellor also disposed of the various contempt motions, none of which are at issue in this appeal. Potter now appeals asserting (1) that the chancellor erred in finding that she had made unsubstantiated allegations against Greene concerning sexual abuse of the child and (2) that there were insufficient material changes in circumstances to warrant a change in custody.

STANDARD OF REVIEW

¶ 6. The standard of review in child custody cases is quite limited, and in order to reverse the chancellor’s findings, the chancellor must be manifestly wrong, clearly erroneous, or have applied an erroneous legal standard. Hensarling v. Hen-sarling, 824 So.2d 583, 587(¶7) (Miss. 2002). This Court reviews de novo whether the chancellor applied the proper legal standard in deciding a custody modification case. Morgan v. West, 812 So.2d 987, 990(¶ 8) (Miss.2002).

DISCUSSION

I. DID THE CHANCELLOR ERR IN FINDING THAT THE ALLEGATIONS OF SEXUAL ABUSE WERE UNSUBSTANTIATED?

¶ 7. In her first issue on appeal, Potter argues that the chancellor erred in finding that the allegations of sexual abuse made against Greene were unsubstantiated. This Court will not disturb a chancellor’s findings of fact unless these findings are manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). Both Dr. Lott and West determined that the abuse allegations were concocted by Potter and were unsupported by the evidence. From the record before us, we cannot find that the chancellor erred in determining that the allegations of sexual abuse were unsubstantiated.

II. WAS THERE A MATERIAL CHANGE OF CIRCUMSTANCES TO WARRANT MODIFICATION OF CHILD CUSTODY?

¶ 8. In her other issue raised on appeal, Potter argues that the chancellor erred in modifying the custody of her daughter. Potter’s sole argument is that this Court should reverse the chancellor’s decision because the report of the guardian ad litem, West, recommended that the child continue to live with Potter. The proper legal standard for child custody modification is as follows: (1) whether there has been a material change in circumstances which adversely affects the welfare of the child and (2) whether the best interest of the child requires a change of custody. Weigand v. Houghton, 730 So.2d 581, 585(1115) (Miss.1999). In finding that there had been a material change in circumstances, the chancellor stated as follows:

The Court finds in this case that Ruth Potter’s continued and obstinate interference with Rodtrellus Greene’s visitation with [the daughter] which included allegations of abuse that have been totally unsubstantiated over time and which have necessitated the involvement of the Rankin County Youth Court, investigations by the Department of Human Services, and an evaluation by a clinical psychologist, coupled with repeated and deliberate coaching of the child by the mother which has led to a parental allegation of Mr. Greene by his daughter, have adversely affected the emotional well being of the subject minor child in this case; that such actions in their totality equate with a material change of circumstances adverse to the minor child and continuing over a long and extended period of time while [the daughter] has been in [the] custody of her mother.

¶ 9. The chancellor then reviewed the Albright factors on the record to determine whether it was in the best interest of the child to require a change in custody. See Albright v. Albright, 437 So.2d 1003 (Miss.1983). The chancellor determined that the best interest of the child necessitated a change in custody from Potter to Greene.

¶ 10. We are not persuaded by Potter’s general assertion that this Court should reverse the chancellor’s judgment because West recommended custody remain with Potter. The supreme court has stated that “[w]hile a chancellor is in no way bound by a guardian’s recommendations, a summary of these recommendations in addition to his reasons for not adopting the recommendations is required in the chancellor’s findings of fact and conclusions of law.” Floyd v. Floyd, 949 So.2d 26, 29(¶ 8) (Miss.2007) (citing S.N.C. v. J.R.D., 755 So.2d 1077, 1082(¶ 18) (Miss.2000)). In this case, the chancellor noted that, while he greatly respected Ms. West’s judgment and recommendation, he determined that it was in the best interest of the child that she be placed in Greene’s custody. We can find no error in the chancellor’s decision; thus, this issue is without merit.

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

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


author: GRIFFIS, J„ for the Court.

text:
    James Allen RAMSEY, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-00667-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2008.

      James Allen Ramsey, appellant, pro se.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, P.J., CHANDLER, GRIFFIS and BARNES, JJ.
   GRIFFIS, J„ for the Court.

¶ 1. James Ramsey appeals the denial of his motion for post-conviction collateral relief. He asserts that: (1) his guilty pleas were not voluntarily or intelligently entered, (2) he was denied effective assistance of counsel, (3) he was denied a bail hearing within a reasonable time of his arrest, and (4) his sentence constitutes cruel and unusual punishment. We find no error and affirm.

FACTS

¶ 2. Ramsey was indicted on three counts of selling cocaine. On June 16, 2003, Ramsey entered guilty pleas on all three counts. He was sentenced to serve three consecutive five year sentences, in the custody of the Mississippi Department of Corrections, and ten years of post-release supervision.

¶ 3. On November 24, 2004, Ramsey filed a motion for post-conviction collateral relief. The circuit court found Ramsey’s claims to be without merit and dismissed his motion.

STANDARD OF REVIEW

¶ 4. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

1. Were Ramsey’s guilty pleas voluntarily and intelligently entered?

¶ 5. Ramsey contends that he involuntarily entered guilty pleas to all three charges because he relied on his attorney who was unfamiliar with the case. Specifically, Ramsey states that his attorney did not advise him of his chances at trial or of the fact that the State’s only witnesses were felons. In response, the State argues that the record, including Ramsey’s petition to enter a guilty plea and his testimony at the plea hearing, proves that Ramsey was fully aware of the consequences of pleading guilty. Thus, the State claims that Ramsey’s guilty pleas were entered voluntarily and intelligently.

¶ 6. A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss. 1991). It is voluntary and intelligent when the defendant is informed of the charges against him and the consequences of his plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992); Vittitoe v. State, 556 So.2d 1062, 1064 (Miss.1990). A defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self incrimination. URCCC 8.04. “A showing that the plea was voluntarily and intelligently made must appear in the record.” URCCC 8.04(A)(3).

¶ 7. Ramsey, with the aid of counsel, signed and presented the trial court a petition to enter a guilty plea. In the petition, Ramsey made a sworn statement that he was mentally competent to make the petition and was not under the influence of drugs or alcohol. He admitted that he was guilty of the crimes charged and waived his right to a trial by jury, his right to hear and cross examine witnesses, and his right against self incrimination. The trial judge asked Ramsey whether everything in the petition was true and correct. In response, while under oath, Ramsey answered yes.

¶ 8. The trial judge asked Ramsey the following questions at the plea hearing:

Q: Do you understand, Mr. Ramsey, that by signing that petition and being here before the court you’re asking me to accept your pleas of guilty to three counts of sale of cocaine?
A: Yes, ma’am.
Q: Is that what you want to do?
A: Yes, ma’am.

Ramsey also told the judge that he understood that he was giving up his right to a trial by jury and that he fully understood the maximum and minimum sentences and fines for his offenses. He acknowledged that he was entering an open plea and that it was possible for the judge to sentence him to the maximum sentence.

¶ 9. Despite Ramsey’s argument that his plea was not voluntary, the record contains sufficient evidence to show that Ramsey fully understood the consequences of his guilty pleas. The trial judge thoroughly questioned Ramsey about each aspect of the plea petition. Ramsey had numerous opportunities to dispute the contents of the petition. Ramsey swore that he was aware of each constitutional right that he was waiving by entering guilty pleas and admitted his guilt on all three charges of the sale of cocaine. Because we find that the record contains sufficient evidence to establish that the trial judge properly and correctly accepted Ramsey’s guilty pleas, we conclude that this issue has no merit.

2. Was Ramsey denied effective assistance of counsel?

¶ 10. Ramsey also argues that he received ineffective assistance of counsel. To support this claim, Ramsey asserts that his attorney did not advise him that the State’s witnesses against him were facing drug charges themselves. Ramsey further argues that counsel was ineffective because his lead attorney sent another attorney to represent him at the plea hearing.

¶ 11. To prove ineffective assistance of counsel, a defendant must show (1) that his counsel’s performance was deficient and (2)that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In cases involving post-conviction collateral relief, “where a party offers only his affidavit, then his ineffective assistance claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995).

¶ 12. Ramsey offered no evidence other than his own statements to prove that his counsel was ineffective. There is nothing in the record to show that counsel’s actions were deficient. Further, Ramsey has not met the second prong of the Strickland test because he cannot prove that he would not have entered a guilty plea if counsel had done as he argues and informed him of the felony charges against the State’s witnesses. Ramsey was facing the possibility of ninety years in prison. Ramsey chose to plead guilty and provides no other proof that further investigation in his case would have changed that decision.

¶ 13. Moreover, Ramsey’s claim is contradicted by the record. In his plea petition and to the trial court at his plea hearing, Ramsey stated that he was satisfied with the representation of his attorney and had no complaints against her or the way she handled his case. Therefore, Ramsey’s ineffective assistance of counsel argument is without merit.

S. Was Ramsey denied a bail hearing within a reasonable time of his arrest?

¶ 14. Ramsey contends that his right to due process of law was violated because he was not taken before a judge for a bail hearing until he had served seventy-three days in jail. He argues that he could have been in a better position to seek legal counsel but for the delay.

¶ 15. Ramsey claims that it was a violation of due process to delay his initial appearance and deny him bond for seventy-three days. Rule 6.05 of the Uniform Circuit and County Court Rules states that a defendant who has been indicted by a grand jury is not entitled to an initial appearance or a preliminary hearing. Further, Ramsey offers no proof that he was denied bond for an unreasonable amount of time. We find that the trial court did not err in finding that there was no support for Ramsey’s allegations. Thus, we find that this issue has no merit.

Ip. Does Ramsey’s sentence constitute cruel and unusual punishment?

¶ 16. Lastly, Ramsey asserts that his sentence is too lengthy and constitutes cruel and unusual punishment. Ramsey

was sentenced to five years for each of the three counts of sale of cocaine, to run consecutively, for a total of fifteen consecutive years in prison. In his plea petition and under oath at his plea hearing, Ramsey testified that he was aware of the maximum sentence for each count of sale of cocaine.

¶ 17. Ramsey was indicted and entered guilty pleas to three counts of sale of cocaine under Mississippi Code Annotated section 41 — 29—139(a) (Rev.2005). The maximum sentence for each count is thirty years in prison and a $1,000,000 fine. The supreme court has said that substantial deference is to be given to “the legislature in determining the limits of punishment for crimes [and to] the discretion of trial courts in sentencing criminals.” Barnwell v. State, 567 So.2d 215, 222 (Miss.1990). “[W]here a sentence is within prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual.” Id.

¶ 18. Ramsey’s three consecutive five year sentences are well within the statutory guidelines set forth by the legislature. There is no evidence that his sentence is cruel and unusual or excessive based on the facts of this case. This issue has no merit.

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

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


text:
    BOYD MISSISSIPPI, INC. and Continental Casualty Company, Appellants v. Iris MOORE, Appellee.
    No. 2007-WC-00422-COA.
    Court of Appeals of Mississippi.
    Jan. 22, 2008.

      Amy K. Taylor, attorney for appellants.
    Jim Davis Hull, attorney for appellee.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   LEE, P.J., for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. During her employment at the Silver Star Resort and Casino in Philadelphia, Mississippi, Iris Moore was injured when a large glass door at one of the casino exits opened and struck her on the left side of her face and head. According to Moore, she was cleaning the door when a patron opened the door hitting her. The accident occurred on September 28, 1996. Moore suffered a cut, a knot above her eye, and a bruise. Moore did not miss any work because of the accident and did not experience any problems with her eye for the next six years.

¶2. In September 2002, Moore’s one-year-old child bumped her left eye causing it to tear up. Four to six weeks later Moore went to an optometrist who diagnosed her with a detached retina and referred her to a specialist. She was also found to be legally blind in her left eye.

¶ 3. Moore’s employment with the Silver Star Casino ended in 1999. Since then she had been employed with another company and insured through her employer by Blue Cross Blue Shield. Blue Cross paid for all of her medical treatment concerning her left eye including her multiple surgeries. She did not present any of the medical bills to the Silver Star.

¶ 4. Moore filed a petition to controvert in August 2004, claiming that the accident on September 28, 1996, caused the detached retina. Boyd Mississippi, Inc. and Continental Casualty Co., her employer and workers’ compensation carrier while employed at the Silver Star, denied that she was entitled to benefits. A hearing was held before an administrative law judge (ALJ) who agreed with the employer/earrier that Moore’s injury was not compensable. The ALJ determined that Moore “failed to prove by a preponderance of the evidence that the alleged incident of September 28, 1996, and the retinal detachment and scarring were causally related to her employment.” Further, the ALJ stated that she “simply did not find the claimant’s testimony to be believable.” The Mississippi Workers’ Compensation Commission affirmed the findings of the ALJ.

¶ 5. Moore appealed the Commission’s decision to the Circuit Court of Neshoba County. The circuit court reversed the decision of the Commission finding it not to be supported by substantial evidence. The circuit court was convinced by Dr. Joel Herring’s testimony that it was a “conceivable possibility” that Moore’s eye injury was related to the accident at issue. In its ruling, the circuit court stated that since doubtful cases should be resolved in favor of compensation, this case should be resolved in favor of Moore.

¶ 6. Boyd Mississippi and Continental Casualty now appeal asserting that substantial evidence existed to support the findings of the Commission.

¶ 7. Finding that the Commission’s decision was based on substantial evidence, we reverse the judgment of the circuit court and reinstate the decision of the Commission.

STANDARD OF REVIEW

¶ 8. The standard for appellate review of workers’ compensation claims is limited. It is well settled that “the Commission is the ultimate fact-finder.” Hardin’s Bakeries v. Harrell, 566 So.2d 1261, 1264 (Miss.1990). Our review is limited to a “determination of whether or not the decision of the commission is supported by the substantial evidence.” McCarty Farms, Inc. v. Banks, 773 So.2d 380, 386-87(¶ 23) (Miss.Ct.App.2000) (quoting Delta CMI v. Speck, 586 So.2d 768, 772-73 (Miss. 1991)). “This Court will overturn a Commission decision only for an error of law or an unsupportable finding of fact.” Cook v. President Casino, 740 So.2d 963, 966(¶ 16) (Miss.Ct.App.1999) (citation omitted). Matters of law are reviewed de novo. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

DISCUSSION

¶ 9. Boyd Mississippi and Continental Casualty argue that the Commission’s decision to deny benefits was based on substantial evidence; thus, the circuit court erred in overruling the Commission.

¶ 10. Moore went to an optometrist for routine annual examinations starting in 1998. Her first visit with Dr. Lee Johnson was in 2000. At her annual visit in 2001, she mentioned having some decrease in vision in both eyes, and she wanted to change her glasses. No mention was made at any of these visits of an accident at the casino, and no accident history was provided. Moore returned for her annual exam in 2002. In September 2002, four months after her annual visit, Moore returned to Dr. Johnson complaining of a decrease in vision since August 2002. Dr. Johnson discovered she had a retinal detachment in her left eye. Dr. Johnson referred Moore to Dr. Herring, a specialist in ophthalmology and retinal surgery. During her initial visit with Dr. Herring in September 2002, Moore stated that her child had elbowed her in the eye, but that she was otherwise healthy and had no previous eye problems. She did not mention the casino accident or any prior eye problems to Dr. Herring. Dr. Herring found a detached retina in the left eye with evidence of scarring. According to Dr. Herring, the area of detachment was sequential and had begun at the edge of the eye and progressed over time. Dr. Herring performed a series of seven surgeries to repair the detached retina and to remove the scar tissue that had developed thereafter.

¶ 11. Both Dr. Herring and Dr. Johnson testified through depositions. Dr. Johnson testified at his deposition in July 2005, that based on a reasonable optomet-ric probability, the accident at the casino was related to or caused the retinal detachment. In a letter written in April 2005, Dr. Johnson stated that since he was not a specialist he would defer to Dr. Herring’s opinion as to whether a retinal detachment could lie dormant for an extended period of time. In May 2005, Dr. Johnson wrote another letter stating that retinal detachments can occur from trauma months and even years after an accident; therefore, a correlation could be drawn between the accident at the casino and the retinal detachment. When questioned in his deposition about why he changed his opinion, Dr. Johnson testified that after he wrote the first letter he read a journal article while doing research that said retinal detachment may occur weeks, months, or even years after an accident. He stated that he felt comfortable giving that opinion based on his research. Dr. Johnson also stated that he could not say that the detachment was not caused by some other factor.

¶ 12. Dr. Herring testified through his deposition that he could not state to a reasonable degree of medical probability that being hit in the eye with a door would be the proximate cause of retinal detachment and scarring. From the characteristics of the scarring, he found that the detachment had progressed in part over a period of time and was partially acute. He testified that it was conceivable that a detachment could have existed for four years before becoming large enough to be noticeable. Dr. Herring also testified that it was conceivable that the scarring could have occurred over a period of a month to six weeks — the period of time that had passed since her child elbowed her eye. He stated that the detachment would not have been noticed at a routine visit unless the eye was dilated.

¶ 13. After reviewing the testimony of Dr. Herring and Dr. Johnson, the Commission found Dr. Herring’s testimony to be more persuasive since he was a specialist in the field of retinal surgery. Neither doctor could state with any certainty that the accident at the casino was the underlying cause of the retinal detachment. The findings of the ALJ, adopted by the Commission, state that “[t]he medical proof is simply not there to establish a causal relationship between the alleged accident and Ms. Moore’s left eye condition.” We agree with the Commission that no testimony was presented to show within a reasonable degree of medical probability that the retinal detachment was in any way related to the injury at the casino. We reverse the judgment of the circuit court and render judgment reinstating the decision of the Commission in favor of Boyd Mississippi, Inc. and Continental Casualty Co.

¶ 14. THE JUDGMENT OF THE NESHOBA COUNTY CIRCUIT COURT IS REVERSED AND RENDERED AND THE DECISION OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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