text:
    EAGLE MANAGEMENT, LLC, Appellant v. Wendell PARKS, Tammie Parks and Alanco Realty Appellees.
    No. 2005-CA-01812-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.

      Michael R. Wall, attorney for appellant.
    Omar D. Craig, Goodloe Tankersley Lewis, Oxford, attorneys for appellees.

      . Wendell’s initials appear on the contract for the purchase and sale of real estate beside two provisions that he struck through, which represented the two amendments listed in the counter-offer.

   ISHEE, J.,

for the Court.

¶ 1. Eagle Management, LLC (Eagle) originally filed suit in the Chancery Court of Lafayette County against Wendell Parks, Tammie Parks, and Alanco Realty, (collectively referred to as “Parks”), alleging breach of contract, fraud, and negligent misrepresentation arising out of Eagle’s attempt to purchase sixty condominium units from Wendell. The suit was later transferred to the Circuit Court of Lafayette County. The circuit court granted Paite’ motion to dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Aggrieved, Eagle appeals asserting numerous issues for this Court’s review. Finding no error, we affirm.

FACTS

¶ 2. On or about March 10, 2004, Eagle, through its managing member, Dino Gri-santi, entered into negotiations with Parks to purchase a sixty-unit condominium project in Oxford, Mississippi known as “No. 1 Anderson Place.” Also on March 10, Eagle prepared, signed, and delivered a contract for the purchase and sale of real property to Tammie, offering to purchase No. 1 Anderson Place for $3,230,000. On March 11, 2005, Tammie informed Grisanti that Wendell reviewed the contract and wanted to make two amendments. Grisan-ti agreed to the proposed amendments. Wendell prepared and signed a counter offer, which incorporated the two amendments, as well as the terms and conditions of the original contract. Tammie subsequently informed Grisanti that the contract had been signed and that it would be delivered. In fact, the contract for the purchase and sale of real property had not been signed. Neither the unsigned contract for the purchase and sale of real property, nor the signed counter offer, was delivered to Grisanti.

¶ 3. Without receiving a signed contract from Parks, Grisanti contacted potential investors and began negotiating the resale of No. 1 Anderson Place. On March 12, 2005, the Bert Allen Group traveled from Gulfport, Mississippi to meet with Grisanti and view the condominium units. After inspecting the units, the Bert Allen Group offered to purchase the property from Eagle for a total purchase price of $3,930,000. Later that day, Tammie informed Grisanti that Wendell had received another offer for No. 1 Anderson Place; the Bert Allen Group subsequently purchased the property from Wendell for the sum of $3,600,000.

¶ 4. On March 15, 2005, Eagle filed suit against Parks in the Chancery Court of Lafayette County alleging damages for breach of contract, or equitable estoppel, as well as fraud and negligent misrepresentation. Eagle sought compensatory damages in the amount of $700,000, as well as unspecified punitive damages. On April 18, 2005, Wendell filed a motion to dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. He asserted that the facts alleged in Eagle’s complaint violated the statute of frauds, or Mississippi Code Annotated section 15-3-l(c) (Rev. 2003). On May 4, 2005, Tammie and Alan-co Realty filed a motion to dismiss; they also asserted that Eagle’s claims were barred by the statute of frauds because there was never a signed contract. On May 26, 2005, Tammie and Alanco Realty filed a supplemental motion to dismiss asserting that Eagle could prove neither detrimental reliance on any allegedly fraudulent statement, nor recoverable damages; Wendell filed a similar supplemental response on June 14, 2005. The suit was transferred to the Circuit Court of Lafayette County on June 21, 2005.

¶ 5. After a hearing on the motions to dismiss, the circuit court entered an opinion and judgment dismissing Eagle’s complaint with prejudice on August 17, 2005. Regarding Eagle’s breach of contract claim, the court found that, pursuant to Mississippi Code Annotated section 15-3-1, a contract for the sale of land must be in writing. Consequently, the court found Wendell could not be liable for breach of contract because it was undisputed that he never signed the contract for the sale of No. 1 Anderson Place. The circuit court further found that Eagle’s claim for equitable estoppel must fail because the lost profits alleged by Eagle were not the result of statements made by Parks, but were the result of Parks entering into a contract with the Bert Allen Group instead of entering into a contract with Eagle. Similarly, the court found that Eagle failed to state a claim as to fraud and negligent misrepresentation because the complaint failed to “allege any damages directly flowing from the false statement by Wendell Parks and Tammie Parks.”

¶ 6. Aggrieved by the court’s decision, Eagle appeals asserting the following issues for this Court’s review:

I. Whether the court erred in finding that it was undisputed that the contract between Eagle and Wendell was never signed.

II. Whether the court erred in finding that no contract existed between the parties.

III. Whether the court erred in finding that the doctrine of equitable es-toppel was not applicable in the event that there was not a contract between the parties.

IV. Whether the court erred in dismissing Eagle’s fraud and negligent misrepresentation claims.

V. Whether the court erred in finding that Eagle’s complaint failed to state a cause of action for which relief could be granted.

STANDARD OF REVIEW

¶ 7. A motion to dismiss pursuant to Rule 12(b)(6) of the Mississippi Rules of Civil Procedure tests the legal sufficiency of the complaint. Varvaris v. Perreault, 813 So.2d 750, 752(¶ 4) (Miss.Ct.App.2001) (citing Fortenberry v. City of Hattiesburg, 758 So.2d 1023(¶ 12) (Miss.Ct.App.2000)). “In order to grant this motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.” Id. A motion for dismissal under Rule 12(b)(6) raises an issue of law. Little v. Miss. Dep’t of Human Servs., 835 So.2d 9, 10-11(¶ 5) (Miss.2002) (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). This Court conducts de novo review on questions of law. Id. (citing UHS-Qualicare, Inc. v. Gulf Coast Community. Hospital, Inc., 525 So.2d 746, 754 (Miss.1987)).

ISSUES AND ANALYSIS

I. Whether the court erred in finding that it was undisputed that the contract between Eagle and Wendell was never signed.

¶ 8. Eagle asserts that the trial court ruled that there was no valid and binding contract between Eagle and Wendell without ever viewing the original contract to determine whether or not it had been signed. Eagle further asserts that the trial court knew that Wendell refused to produce the original contract, despite numerous requests for its production. Consequently, Eagle asserts that the trial court committed substantial error by ruling on the issue without the benefit of knowing whether or not Wendell had in fact signed the contract.

¶ 9. We find that this issue is procedurally barred, as Eagle has failed to cite any legal authority in support of its position. It is the appellant’s duty “to provide authority in support of an assignment of error.” United Plumbing & Heating Co. v. Mosley, 835 So.2d 88, 92(¶ 8) (Miss.Ct.App.2002) (quoting McNeil v. Hester, 753 So.2d 1057, 1075(¶ 65) (Miss.2000)). Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment. Mosley, 835 So.2d at 92(¶ 8) (citing Powell v. Cohen Realty, Inc., 803 So.2d 1186, 1190(¶5) (Miss.Ct.App. 1999)). Consequently, we decline to address this issue.

II. Whether the court erred in finding that no contract existed between the parties.

¶ 10. Citing Central Shoe Co. v. J.P. Conn & Co., 160 Miss. 151, 133 So. 126 (1931), Eagle asserts that the contract for the purchase and sale of real property combined with the counter-offer constituted a valid and binding contract as to Wendell. In Central Shoe, the court held that, in order to satisfy the statute of frauds, a written contract need not be in one writing, but may be in several writings necessarily connected with each other. Id., 160 Miss, at 155-56, 133 So. at 127. The court further held that “[i]f a paper signed by the party sought to be charged makes such reference to another writing as that, construing them together, all the terms of the bargain are expressed, it is sufficient under the statute, and parol evidence is admissible to identify the paper referred to and apply the reference.” Id., 160 Miss, at 156,133 So. at 126.

¶ 11. Although we agree that a contract may consist of several writings, we are not persuaded by Eagle’s logic as applied to the facts of this ease. The record reveals that Wendell did not sign the contract for purchase and sale of real property. Moreover, the counter offer prepared and signed by Wendell specifically stated that “[t]he offer to purchase the real property ... made by [Eagle] ... is not acceptable in its present form, but the following counter-offer is hereby submitted.” Thus, Wendell specifically rejected Eagle’s offer as it was set forth in the contract for purchase and sale of real property. Furthermore, the counter-offer was never delivered to Eagle for its signature. Consequently, we find that the circuit court did not err in finding that no valid contract existed between the parties. This issue is without merit.

III. Whether the court erred in finding that the doctrine of equitable estoppel was not applicable in the event that there was not a contract between the parties.

¶ 12. Equitable estoppel generally defined as “the principle by which a party is precluded from denying any material fact, induced by his words or conduct upon which a person relied, whereby the person changed his position in such a way that injury would be suffered if such denial or contrary assertion was allowed.” Dubard v. Biloxi H.M.A., Inc., 778 So.2d 113, 114(¶ 5) (Miss.2000) (quoting Koval v. Koval, 576 So.2d 134, 137 (Miss.1991)). “The doctrine of equitable estoppel may be used to enforce an oral contract which would otherwise be unenforceable under the statute of frauds.” Powell v. Campbell, 912 So.2d 978, 982(¶ 12) (Miss.2005) (citing Koval v. Koval, 576 So.2d 134, 137 (Miss.1991)). Nonetheless, equitable estoppel “should only be used in exceptional circumstances and must be based on public policy, fair dealing, good faith, and reasonableness.” Id. (citing PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss.1984)).

¶ 13. A party asserting a claim for equitable estoppel must assert the following: (1) belief and reliance on some representation, (2) change of position as a result thereof, and (3) detriment or prejudice caused by the change of position. Cothern v. Vickers, Inc., 759 So.2d 1241, 1249(¶ 19) (Miss.2000) (citing Covington County v. Page, 456 So.2d 739, 741 (Miss.1984)). Eagle maintains that it changed its position in reliance on the representation of Parks that Wendell had signed the contract. Eagle further maintains that it would have never contacted the Bert Allen Group had Parks not made this misrepresentation. Consequently, Eagle urges this Court to “force [Parks] to be accountable for [their] actions and untruths” by reversing the decision of the circuit court.

¶ 14. The circuit court found that Eagle failed to state a claim for equitable estoppel because he failed to allege that he suffered any damages as a result of the allegedly untrue representations of Parks. The court further found that the damages alleged by Eagle did not arise from Eagle’s dealings with Parks, but from Wendell’s decision to enter into a contract with the Bert Allen Group, rather than Eagle. We agree.

¶ 15. We find Eagle’s negotiations with the Bert Allen Group and others regarding the resale of the property to be insufficient facts to support Eagle’s allegation that it changed its position to its detriment. Eagle did not assert that it expended funds negotiating with the potential investors as a result of Parks’ representations. Instead, Eagle asserted that, had it been able to resale the property to the Bert Allen Group, it would have realized a profit of $700,000. Consequently, we find that the circuit court did not err in declining to employ the doctrine of equitable estoppel.

IV. Whether the court erred in dismissing Eagle’s fraud and negligent misrepresentation claims.

¶ 16. Under this assignment of error, Eagle asserts that either the court failed to recognize that a valid contract existed between the parties or, in the alternative, the doctrine of equitable estoppel should have been invoked. Thus, Eagle further assets that, because it was the rightful owner of the property, and because the Bert Allen Group initially agreed to purchase the property from Eagle, Eagle sustained damages for lost profits that it was legally entitled to receive. Consequently, Eagle maintains that the trial court wrongfully determined that Eagle’s claims for fraud and negligent misrepresentation were deficient because they failed to allege proximate damages.

¶ 17. In order to properly bring a claim for fraud, the plaintiff must assert the following:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of the truth; (5) the speaker’s intent that it should be acted upon by the hearer and in the manner reasonably contemplated;
(6) the hearer’s ignorance of its falsity;
(7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.

Spragins v. Sunburst Bank, 605 So.2d 777, 780 (Miss.1992) (citing Bank of Shaw v. Posey, 573 So.2d 1355, 1362 (Miss.1990)). In order to bring a claim for negligent misrepresentation, the plaintiff must assert the following:

(I) a misrepresentation or omission of fact; (2) the materiality or significance of the representation or omission; (3) failure to exercise reasonable care on the part of the defendant; (4) reasonable reliance on the misrepresentation or omission; and (5) damages as a direct and proximate result of such reasonable reliance.

Little v. Miller, 909 So.2d 1256, 1260(1116) (Miss.Ct.App.2005) (citing Spragins, 605 So.2d at 780).

¶ 18. As stated previously, we find that no contract existed between the parties; because the contract was unsigned, it failed to satisfy the statute of frauds. Furthermore, we find that the circuit court was correct in its determination that the damages alleged by Eagle did not arise from any representation of Parks, but arose from Wendell’s decision to enter into a contract with the Bert Allen Group instead of Eagle. Consequently, the circuit court did not err in finding that Eagle failed to state a claim for fraud and negligent misrepresentation. This issue is without merit.

Y. Whether the court erred in finding that Eagle’s complaint failed to state a cause of action for which relief could be granted.

¶ 19. Because we find that no contract existed between the parties, and that the trial court did not err in finding that Eagle failed to state a claim for fraud and negligent misrepresentation, we also find that this issue is without merit.

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

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

      . Wendell owned the property in question; Tammie acted as his real estate agent. Alan-co Realty is a sole proprietorship owned by Tammie.

      . The first amendment stated, "[s]eller is to retain all Security Deposits currently being held on the units leased in the amount of $7,900." The second amendment stated, "[s]eller retains the right to back out of this offer if his Cash due to seller at closing is not at least $100,000.”


source: Caselaw Access Project

author: KING, C.J.,

license: Public Domain

text:
    Tina DAVIS, Appellant v. The CLARION-LEDGER and The Travelers Insurance Company, Appellee.
    No. 2005-WC-01510-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.

      Dennis Harmon, Columbus, attorney for appellant.
    Ernest Russell Turner, attorney for ap-pellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the Court.

¶ 1. The Mississippi Workers’ Compensation Commission (Commission) found that Tina Davis was an independent contractor, and denied her claim for workers’ compensation benefits. Upon appeal, the Lowndes County Circuit Court affirmed the denial of benefits. Davis appeals to this Court raising the following issues:

I. Whether a person who is paid a salary by a newspaper company to deliver papers is an employee within the worker’s compensation statute.

II. What is the proper calculation of damages when the Commission does not reach the benefits issue and the defendant offers no counter evidence on injuries.

Finding reversible error in the first issue, this Court reverses and remands this case to the Mississippi Workers’ Compensation Commission for a determination of benefits.

FACTS

¶ 2. In 1999, Davis entered into an agreement with The Clarion-Ledger to sell newspapers. Under that agreement, Davis purchased the newspapers from The Clarion-Ledger, and within a specified sales territory, placed some in coin operated newspaper racks and placed the others in local businesses for in-store sale. Davis collected and retained the money from the newspaper racks and the in-store sales. Davis’ compensation was the difference between the price which she paid for her inventory of newspapers and the retail price paid by consumers. This contractual arrangement continued until January 2001, when Davis informed The Clarion-Ledger District Manager Danny Tharp of her intent to terminate her contract with The Clarion-Ledger because she was not making enough money. In response to Davis’ concerns, Tharp requested that Davis continue to service this territory until a replacement could be found. Tharp proposed to pay Davis $40 per day for her services, and to give her a $5 per day gasoline allowance. Under the new agreement, Davis would continue to transport the newspapers and collect the unsold newspapers in the same fashion to which she was accustomed, but she would not have to purchase the newspapers, nor would she collect the money from the machines. Davis accepted this offer. Three days later, Tharp removed Davis’ locks from the money boxes on the newspaper racks and replaced them with The Clarion-Ledger’s locks.

¶ 3. On February 7, 2001, Davis had worked approximately two weeks under the new agreement. After having restocked a newspaper rack, Davis stepped off of a curb and injured her ankle. She was taken by ambulance to the hospital, where it was revealed that she had suffered a displaced trimalleolar ankle fracture. Davis underwent an operation on her ankle that day. Due to recurrent infection, Davis underwent subsequent ankle operations on April 4 and May 8, 2001. In addition to her operations, Davis also underwent physical therapy. On July 13, 2001, her doctor determined that Davis had reached maximum medical improvement.

¶ 4. On October 12, 2001, Davis filed her petition to controvert with the Commission. On December 27, 2001, The Clarion-Ledger filed its answer, asserting that Davis was an independent contractor. On January 29, 2003 the administrative judge held that Davis was an independent contractor, and denied her claim. The Commission affirmed the order of the administrative law judge. Davis then appealed to the Lowndes County Circuit Court, which affirmed the Commission’s order on July 28, 2005.

ANALYSIS

¶ 5. Mississippi Workers’ Compensation Commission cases are reviewed under the substantial credible evidence standard. Shelby v. Peavey Elecs. Corp., 724 So.2d 504, 506(¶ 8) (Miss.Ct.App.1998). However, when the issue is one of law rather than fact, we employ a de novo standard of review. Id. Our supreme court has stated that the issue of whether an individual is an employee or independent contractor is an issue of law. Id.

Pursuant to Miss.Code Ann. Section 71-3-3(r) (2001):

“Independent contractor” means any individual, firm or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workers independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses, one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.

Davis asserts that The Clarion-Ledger clearly controlled the methods by which she maintained the newspaper racks primarily by changing the locks on the racks. The Clarion-Ledger denies that changing the locks on the racks, or having Tharp collect the money from the racks amounts to exercising control over the details of Davis’ daily work activities.

¶ 6. The supreme court has adopted two tests to assist in determining whether an individual is an employee or an independent contractor. The “control test” consists of the following factors, “(1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.” Shelby, 724 So.2d at 507(¶ 13).

¶ 7. Davis’ testimony before the administrative judge revealed that during the two weeks in which she performed under the new agreement, no one at The Clarion-Ledger told her how to run her route, nor had she ever received a performance evaluation. However, it is the right to control, rather than the exercise of that right, which is decisive. Id. The record contains the following evidence regarding The Clarion-Ledger’s right to control. Under the new arrangement, Davis no longer purchased an inventory of newspapers to sell. Instead, The Clarion-Ledger provided the newspapers to Davis, who merely filled the newspaper racks and transported newspapers to businesses for in-store sales. Davis’ locks were taken off of the money boxes on the newspaper racks and replaced with The Clarion-Ledger’s locks. Davis no longer collected the money from the newspaper racks. Tharp became responsible for collecting the money from newspaper rack sales. The changing of the locks limited Davis’ access to the newspaper racks. Therefore, The Clarion-Ledger began providing Davis with quarters as her only means to open and stock the newspaper racks, while preventing her access to the money contained in the coin boxes. Davis also testified that she and Tharp had discussed employee policies and procedures. These facts tend to illustrate The Clarion-Ledger’s right to control the details of Davis’ work. The method of payment factor clearly favors a finding of employment since Davis was to be paid a salary of $40 dollars per day regardless of the number of papers actually sold. As for the furnishing of equipment, although Davis furnished her own automobile, The Clarion-Ledger furnished her gasoline, the newspapers, locks on the machines, and quarters to open the machines. Accordingly, this factor also favors a finding of employment. Finally, The Clarion-Ledger conceded that either Davis or The Clarion-Ledger could have terminated the relationship at any time. An application of the four factors of the control test indicates that Davis was an employee rather than an independent contractor.

¶ 8. An application of the “nature of the work test” also indicates that Davis was an employee of The Clarion-Ledger. The factors to be considered in the “nature of the work test” are,

the character of the claimant’s work or business — how skilled it is, how much of a separate calling or enterprise it is, to what extent it may be expected to carry its own accident burden and so on — and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.

Boyd v. Crosby Lumber & Mfg. Co., 250 Miss. 433, 444, 166 So.2d 106, 110 (1964) (quoting 1 Larson, Workmen’s Compensation Law, § 43.52). Clearly, no special skill is required in the delivery of newspapers. Also, delivery of the newspapers to the general public is an integral part of The Clarion-Ledger’s function. Finally, Davis’ duties were continuous as she transported the newspapers seven days a week.

¶ 9. It is undisputed that prior to the January 2001 Davis-Tharp meeting, Davis was an independent contractor. During that time, she purchased newspapers from The Clarion-Ledger and resold them to the general public via the newspaper racks and in-store sales. Her compensation depended on the amount of newspapers actually sold to the public. After Davis and Tharp terminated that agreement, Davis no longer purchased the newspapers, and was therefore transporting products solely owned by The Clarion-Ledger for a salary. The Clarion-Ledger controlled the details of her work by exercising total control over the newspaper racks. For all of the foregoing reasons, we find that Davis was an employee of The Clarion-Ledger.

¶ 10. Because we find the first issue to be dispositive, we decline to address the second issue.

¶11. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . Davis never actually received payment, including the gasoline allowance, after the injury. Nevertheless, the agreement was that she would be provided the gasoline subsidy.


text:
    Billy David BLALACK, Appellant v. Jane Sproles BLALACK, Appellee.
    No. 2005-CA-00860-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.

      James H. Arnold, Durant, attorney for appellant.
    Jerry Askew, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the Court.

¶ 1. On March 14, 2005, Billy David Bla-lack and Jane Sproles Blalack were granted a second divorce from each other based on the ground of irreconcilable differences by the Oktibbeha County Chancery Court. The chancellor performed an equitable distribution of marital assets and awarded Mrs. Blalack permanent alimony in the amount of $500 per month. Mr. Blalack appeals the award of alimony.

FACTS

¶ 2. Mr. and Mrs. Blalack remarried in 1987. Shortly thereafter, they moved to Saudi Arabia due to Mr. Blalack’s job with Boeing Aircraft. Mr. Blalack earned $120,000 per year while overseas. The couple returned to the U.S. in 1989, and Mr. Blalack was transferred to California. His salary was approximately $80,000 upon returning to the U.S. During that time, Mrs. Blalack resided in Eupora, Mississippi, where her daughter was finishing high school, but went to California to be with her husband during the summer. Mrs. Blalack did move with her husband when he was transferred to Maryland in 1990. The couple returned to Eupora after Mr. Blalack was laid off in 1991. Mr. Blalack then took a job as a machinist, earning seven dollars per hour. During that time, Mrs. Blalack took a factory job, earning eleven dollars per hour.

¶ 3. Although the Blalacks had no children together, Mrs. Blalack bore three daughters prior to her marriage to Mr. Blalack. Some time prior to the Blalacks’ separation, Mrs. Blalack spent much of her time in Starkville helping take care of her granddaughter. By May 2003, Mrs. Bla-lack was spending approximately three nights per week in Starkville babysitting and taking her granddaughter to extracurricular activities. Mrs. Blalack testified that Mr. Blalack had no problem with the arrangement and that he even provided her with money to purchase gasoline to travel between Eupora and Starkville. However, one evening in August 2004, when Mrs. Blalack returned to her home in Eupora, she discovered that Mr. Blalack had changed all of the locks on the doors. When Mrs. Blalack contacted Mr. Blalack to inquire why she had been locked out of the house, he informed her that he was filing for a divorce. Mr. Blalack originally filed for a divorced based on the grounds of desertion or, in the alternative, irreconcilable differences. The couple eventually consented to an irreconcilable differences divorce, reserving the issues of equitable distribution and alimony to be decided by the chancellor.

¶ 4. The chancellor awarded Mr. Blalack exclusive use and possession of the marital home, two 2001 Ford Rangers, a 1986 Ford Bronco, and various personal property. Mrs. Blalack was awarded $7,000 which represented one-half of the equity in the marital home, a 1997 Ford Explorer, and various personal property, as well as $500 per month in alimony.

ANALYSIS

¶ 5. This Court will not reverse an award of alimony based upon findings of fact supported by credible evidence, absent manifest error or abuse of discretion. Mabus v. Mabus, 890 So.2d 806, 822(¶ 65) (Miss.2003). A chancellor must consider the following factors in determining whether to award alimony:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4.The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or
12. Any other factor deemed by the court to be “just and equitable” in connection with the setting of spousal support.

Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

¶ 6. The chancellor addressed the applicable Armstrong factors in her opinion and made the following findings. Mr. and Mrs. Blalack’s second marriage lasted for sixteen years. At the time of the proceeding, both parties were sixty-one years of age and disabled. Mr. Blalack receives $4,291 per month in benefits, whereas Mrs. Bla-lack receives $739 per month in benefits. Mr. Blalack will have exclusive use and possession of the marital home, whereas Mrs. Blalack does not have a home of her own. The parties had incurred some marital debt at the time of their separation. Mr. Blalack refinanced a vehicle to assist Mrs. Blalack after she encountered a legal problem. He also paid for Mrs. Blalack’s automobile insurance since the separation and made all mortgage payments. The chancellor considered the standard of living of the parties prior to their separation and noted that Mr. Blalaek provided Mrs. Blalaek with spending money every month.

¶ 7. The thrust of Mr. Blalack’s argument is that the chancellor did not take into account that it was Mrs. Blalaek who moved out of the marital home, and that Mrs. Blalack’s arrest caused Mr. Blalaek to expend funds on her behalf. However, the chancellor did address the fact that Mr. Blalaek refinanced a vehicle in order to financially assist Mrs. Blalaek with her legal troubles. Whether Mrs. Blalaek actually moved out of the marital home, or whether she was kicked out by Mr. Blalaek was contested by the parties. Presumably, Mr. Blalaek believes that this issue goes toward the Armstrong factor of fault or misconduct. However, this Court has previously stated that “the chancellor is not required to analyze each Armstrong factor individually in his opinion, but is required to view the overall combination of the factors as a whole, opting to address individual factors at his discretion.” Wells v. Wells, 800 So.2d 1239, 1245(¶ 12) (Miss. Ct.App.2001) (citing Hoggatt v. Hoggatt, 766 So.2d 9,12 (¶9) (Miss.Ct.App.2000)). We find that the chancellor’s findings were supported by credible evidence in the record, and that she did not abuse her discretion or commit manifest error in awarding alimony.

¶ 8. THE JUDGMENT OF THE OK-TIBBEHA COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . At the time of the proceeding, Mrs. Blalack lived with her daughter in Starkville. Mrs. Blalack exchanged babysitting services for rent and utility payments.

      . Mrs. Blalack's arrest was unrelated to the divorce proceeding.


text:
    Carlos DAVISON a/k/a Carlos D. Davison, Appellant v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 2005-CA-00088-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.

      George S. Shaddock, Pascagoula, attorney for appellant.
    James C. Smallwood, attorney for appel-lee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J.,

for the court.

¶ 1. Carlos Davison was ordered by the Jackson County Chancery Court to pay child support for four of his children. After Davison failed to pay child support, the special master assigned to Davison’s cases found him in contempt. Davison objected to the special master’s report by appealing to the chancery court. The chancery court adopted the special master’s report, and ordered Davison to serve ninety days in jail or purge himself of contempt by paying the arrearage. Davison now appeals raising the following issues, which we quote verbatim:

I. Whether the appeal of the Master’s three orders to the Chancery Court was proper under Rule 53.

II. Whether the chancellor erred in finding Davison able to work and provide child support, and thus in contempt.

III. Whether the Chancellor’s judgment correctly followed the credible evidence adduced at both hearings.

Finding no reversible error, we affirm.

FACTS

¶ 2. Davison, twenty-seven years old at the time of the hearing in question, had fathered at least four children by three different women — Sandra Molden, Trease Jenkins, and Andrea Pitts. On January 11, 2001, Davison was ordered to pay $180.98 per month in child support for the two children he fathered with Jenkins. On February 5, 2001, Davison was ordered to pay $150 per month in child support for the child he fathered with Molden. On February 14, 2002, Davison was ordered to pay $100 per month in child support for the child he fathered with Pitts.

¶ 3. On July 18, 2002, the special master found Davison in contempt of court for his failure to pay child support for Molden’s child. The special master recommended forty days of incarceration and set a purge amount of $1,188.50. On July 25, 2002, Davison filed a motion of judicial review in the chancery court. On January 27, 2003, the chancellor remanded the Davison/Mol-den matter back to the master “for an evidentiary hearing on the amounts heretofore paid towards his obligations as per Order of February 5, 2001, and his present ability to pay any amount.” On October 30, 2003, Davison failed to appear before the master on the Molden contempt charge, but his counsel appeared. The master again found Davison in contempt and ordered him to appear on January 28, 2004 to show cause. Davison had also been found in contempt on the Jenkins and Pitts child support orders, and January 28, 2004 was also set as Davison’s show cause date on those matters. After several continuances, all three of Davison’s cases were set for review on September 9, 2004. Once again, Davison failed to appear but graciously sent counsel in his place. Davison was again found in contempt on all three matters. The master recommended that Davison be incarcerated for thirty consecutive days on each finding of contempt in the Jackson County Adult Detention Center. The master also set three different purge amounts corresponding with the amount of arrearage in each matter. On September 23, 2004, Davison filed a notice of appeal in the chancery court regarding the master’s report. On December 15, 2004, the chancellor heard the appeal, and subsequently entered an order affirming the master’s findings.

ISSUES AND ANALYSIS

I. Whether the appeal of the Master’s three orders to the Chancery Court was proper under Rule 53.

¶ 4. Mississippi Rules of Civil Procedure Rule 53(g)(2) states:

The court shall accept the master’s findings of fact unless manifestly wrong. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as provided by Rule 6(d). The court after hearing may adopt the report or modify it or may reject it in whole or in any part or may receive further evidence or may recommit it with instructions.

¶ 5. The master’s report finding Davison in contempt was entered on September 9, 2004. DHS argues that the December 15, 2004 “appeal” before the chancellor was improper because Davison failed to serve a written objection to the report within ten days, and instead filed a notice of appeal fourteen days after the report was entered. It does appear from the record that Davison failed to serve a written objection to the master’s report within ten days. However, a master’s report has no effect until it is either accepted or rejected by the chancellor. Evans v. Davis, 401 So.2d 1096, 1099 (Miss.1981). Even if Davison never filed a written objection or notice of appeal, the chancellor was still required to determine whether to accept or reject the master’s report. Rule 53(g)(2) also makes clear that the chancellor had the authority to receive further evidence at the hearing, which he did. We find that not only was the chancellor correct in conducting the December 15, 2004 hearing, but also that he was required to decide whether to accept or reject the master’s report.

II. Whether the chancellor erred in finding Davison able to work and provide child support, and thus in contempt.

III. Whether the Chancellor’s judgment correctly followed the credible evidence adduced at both hearings.

¶ 6. Although Davison frames his second and third issues separately, the question is simply whether the chancellor’s findings were supported by substantial credible evidence. Absent a manifest abuse of discretion, this Court will not disturb a chancellor’s findings which are supported by substantial credible evidence. Martin v. Lowery, 912 So.2d 461, 464(¶ 7) (Miss.2005)

¶ 7. At the hearing in which the chancellor reviewed the master’s report, Davison argued that he should not be held in contempt for failure to pay child support because he is disabled and unemployable. Davison claimed that he suffers periodic seizures and blackouts resulting from a fall he suffered when he was six or seven years old. Davison’s attorney attempted to present the master with documents allegedly from two of Davison’s treating physicians to prove that Davison was disabled. However, the master and the chancellor found that the documents were hearsay.

¶ 8. In McIntosh v. Mississippi Dep’t of Hitman Services, the supreme court held,

In contempt actions involving unpaid child support, a prima facie case of contempt has been established when the party entitled to receive support introduces evidence that the party required to pay the support has failed to do so. At this point, the burden shifts to the paying party to show an inability to pay or other defense; this proof must be clear and convincing and rise above a simple state of doubtfulness.

886 So.2d 721, 724-725(111) (Miss.2004) (internal citations omitted). The record clearly establishes that Davison was ordered to pay child support to Molden, Jenkins, and Pitts, and that he failed to comply with those orders. Therefore, it was up to Davison to prove by clear and convincing evidence that he was unable to pay the ordered child support due to his alleged disability.

¶ 9. Davison’s testimony was the only evidence presented to prove his inability to pay child support. Davison testified that he is unable to work due to the alleged seizures and blackouts from which he suffers. However, Davison testified that he did work from the ages of seventeen to twenty-three years of age. Davison testified that his last job was with Lewis Printing Co. and that he quit “because it got slow.” He further testified that although he did not remember when he worked at Lewis Printing Co., when he quit, or how much he was paid, he did remember that he quit sometime after three withholding orders had been presented to his employer, although that was not the reason he quit. Although Davison claims that he is unemployable, he testified that he spends approximately four days per week at his brother’s pool hall. He also testified that he was not employed at the pool hall, although he is often at the pool hall from open to close, maintains keys to the pool hall and often closes the pool hall for his brother. However, Davison maintained that he was not paid for these pseudo-employment activities. Although the record does not establish how Davison pays for his basic expenses, he did testify that he lives in a house owned by his brother who owns the pool hall. Finally, Davison also testified that he applied for and was denied Social Security disability benefits, and that at the time of the hearing that denial was on appeal.

¶ 10. A chancellor sitting as the finder of fact is in the best position to determine the veracity and credibility of a witness. Owen v. Owen, 928 So.2d 156, 168(¶ 35) (Miss.2006). In the chancellor’s order adopting the master’s report, the chancellor stated:

It appears that the Defendant is making every effort to avoid paying child support when he is able to move freely and do as he pleases in other areas and could be employed at some job and make an effort to pay toward the children he has fathered but has not. He has a very caviler [sic] attitude about same, as though it is not important, and that nothing can be done about it.

Clearly, the chancellor found that Davison did not meet his burden of proving by clear and convincing evidence his alleged inability to pay the ordered child support.

¶ 11. Davison also argues that the chancellor erred in ruling that three documents he sought to introduce into evidence were hearsay. One document is a letter allegedly written by Reginald Stewart, D.O. to Davison’s attorney dated November 28, 2002, in which Dr. Stewart stated that Davison has a seizure disorder which prevents him from maintaining employment. The second document appears to be from a February 17, 2003 office visit. The document states that Davison “has had several seizures lately.” At the bottom of the typed document, Dr. Stewart’s name appears in typeface, but the document is not signed. The third rejected document was a letter “to whom it may concern” dated March 15, 2004, appearing on the letterhead of Terry J. Millette, M.D. However, the letter was authored by an individual named Amanda Stokes. The Stokes letter also referenced Davison’s seizures and blackouts, and goes even further to state, “His medical problems render him disabled from a neurological standpoint.”

¶ 12. “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). The Stewart and Stokes letters clearly meet the definition of hearsay, and the chancellor did not err in refusing to admit them into evidence. The documentation of Davison’s February 17, 2003 visit to Dr. Stewart may have fallen under Mississippi Rules of Evidence, Rule 803(6), records of regularly conducted activity. However, Rule 803(6) requires that the document sought to be introduced as a record kept in the regular course of business be accompanied by “testimony of the custodian or other qualified witness,” unless the document is self-authenticated in accordance with Rule 902(11). M.R.E. 803(6). See also Ferguson v. Snell, 905 So.2d 516, 520(¶ 12) (Miss. 2004). Davison did not have the record custodian nor any other qualified witness present to authenticate the document. Nor did the document meet the self-authenticating qualities contained in Rule 902(11). Therefore, the chancellor did not err in ruling that the three documents were hearsay.

¶ 13. In summary, the substantial credible evidence relied on by the chancellor includes the following. Davison admitted to having at least five years of employment some ten years after his accident. Also, Davison testified that he quit his last job because it “got slow,” rather than as the result of any medical condition. Davison also testified that he is well enough to frequent a pool hall four days a week and perform many employment-like activities. Also, the fact that Davison has been denied Social Security disability benefits carries some evidentiary value.

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

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

      . The Mississippi Department of Human Services is the named plaintiff in this case because each of the mothers are recipients of Title IV-D services under the Social Security Act. See State Dep’t of Human Servs. v. Shelby, 802 So.2d 89, 95(¶ 22) (Miss.2001) (quoting Blessing v. Freestone, 520 U.S. 329, 334, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)).

      . This is not to say that a chancellor must hold a hearing in order to decide whether to accept or reject the master's report. Instead, Rule 53(g)(2) gives the chancellor the option to receive further evidence before making the determination.


author: LEE, P.J.,

text:
    Kimberly Rensink HEFFNER, Appellant v. Darin R. RENSINK, Appellee.
    No. 2005-CA-01549-COA.
    Court of Appeals of Mississippi.
    Oct. 3, 2006.

      Cheryl Ann Webster, Clarksdale, attorney for appellant.
    Darin R. Rensink, Appellee, pro se.
    Before LEE, P.J., CHANDLER and ROBERTS, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. Kimberly Heffner and Darin Ren-sink were married in North Dakota on August 13,1999, and divorced on February 28, 2002, in the Bolivar County Chancery Court. During the marriage Heffner and Rensink had one child, Nicole, who was twenty-two months at the time of the divorce. The chancellor awarded Heffner sole legal and physical custody of Nicole, subject to liberal visitation with Rensink. The chancellor ordered Rensink to pay $275 per month in child support in addition to $3,277.50 owed by Rensink for past due child support and medical expenses.

¶ 2. On July 18, 2003, Rensink filed for a modification of the parties’ visitation, to which Heffner filed a counterclaim arguing that Rensink had unclean hands due to his failure to conform with the court’s support order and order regarding past-due child support. After a hearing, the chancellor modified both visitation and custody, giving Rensink and Heffner joint legal custody. The chancellor ruled that Rensink was entitled to visitation “at any time, provided that the parties agree and that the visitation does not interfere with the child’s schooling or extracurricular activities.” The appropriate order regarding the modification was entered November 18, 2004.

¶ 3. On January 21, 2005, Heffner sought modification of the November modification, alleging that Nicole had been mistreated during a visit at Rensink’s home in Iowa. Heffner also requested an increase in child support and requested that Rensink’s visitation be limited to supervised visitation. Rensink filed a counterclaim for contempt, to which Heffner filed a counterclaim seeking to terminate Rensink’s parental rights. The chancellor denied the motion for modification of child support but ordered that an adult female be present at all times during Rensink’s visitation with Nicole. The chancellor further ordered that no adult male was to dress or bathe Nicole, whether she was in Rensink’s or Heffner’s custody. The chancellor also denied Ren-sink’s counterclaim for contempt.

¶ 4. It is from this judgment that Heff-ner appeals, arguing the following assignments of error, which we quote verbatim:

I. IS IT REVERSIBLE ERROR FOR A CHANCELLOR TO IGNORE THE RIGHT OF THE CHILD TO HAVE HER PARENTAL RIGHTS TERMINATED, AFTER THE GROUNDS FOR TERMINATION OF PARENTAL RIGHTS HAVE VESTED BY VIRTUE OF SECTION 93-15-107 OF THE MISSISSIPPI CODE?

II. IS IT REVERSIBLE ERROR FOR THE CHANCELLOR TO FAIL TO APPOINT A GUARDIAN AD LI-TEM TO REPRESENT THE CHILD’S INTEREST, ONCE GROUNDS TO TERMINATE PARENTAL RIGHTS HAVE VESTED AND THE ISSUE HAS BEEN RAISED IN A COURT OF LAW?

III. IS IT REVERSIBLE ERROR FOR THE MISSISSIPPI DHS CASE WORKER, MS. RODGERS, TO REFUSE TO TESTIFY IN A CHANCERY COURT PROCEEDING, REFUSE TO UNDERGO DIRECT AND CROSS EXAMINATION WITH REGARD TO DISCLOSURE OF VITAL DHS RECORDS AND INFORMATION WITHOUT PERMISSION BY A YOUTH COURT REFEREE, WHEN THE MOTHER, HEFFNER, A NATURAL PARENT HAS SUBPOENAED HER AS A WITNESS; AND FURTHER TO HAVE THE YOUTH COURT REFEREE LIMIT THE TESTIMONY TO [AN] IN CAMERA, UNRECORDED INTERVIEW BY THE COURT, DENYING THE MOTHER HER RIGHT TO MAKE A RECORD FOR THE HIGHER COURTS?

¶ 5. Finding the chancellor erred in regard to Issues II and III, we reverse and remand for proceedings consistent with this opinion.

STANDARD OF REVIEW

¶ 6. This Court will not disturb the findings of a chancellor unless we find an abuse of discretion, an erroneous application of law, or manifest error. Andrews v. Williams, 723 So.2d 1175, 1176(¶ 7) (Miss. Ct.App.1998). Thus, if we find substantial evidence in the record to support the chancellor’s findings, we will not reverse. Wilbourne v. Wilbourne, 748 So.2d 184, 186(113) (Miss.Ct.App.1999). We review questions of law de novo. In re Custody of M.A. G., 859 So.2d 1001, 1003(¶4) (Miss.2003).

DISCUSSION

¶ 7. As Rensink did not file a brief in this matter, we have two options before us. The first is to take Rensink’s failure to file a brief as a confession of error and reverse, which should be done when the record is complicated or of large volume and “the case has been thoroughly briefed by the appellant with apt and applicable citation of authority so that the brief makes out an apparent case of error.” May v. May, 297 So.2d 912, 913 (Miss.1974). The second is to disregard Rensink’s error and affirm, which should be used when the record can be conveniently examined and such examination reveals a “sound and unmistakable basis or ground upon which the judgment may be safely affirmed.” Id. Because Heffner has made out an apparent case of error and the basis for the chancellor’s decision is erroneous, we discuss the merits below.

¶ 8. We address Issue II and III first, as both require that we reverse and remand, declining to review the chancellor’s findings of fact as contested in Issue I.

II. IS THE FAILURE TO APPOINT A GUARDIAN AD LITEM REVERSIBLE ERROR?

¶ 9. Under Mississippi law, a person may have his parental rights terminated by deserting the child; having no contact for six months with a child under the age of three; abusing the child or another child; where the child evidences “extreme and deep-seated antipathy” toward the parent or when there is “substantial erosion” of the parent-child relationship caused by the parent’s behavior; when the parent has been convicted of certain crimes involving children; and when the child has been adjudicated to be an abused or neglected child and custody of the child has been transferred and a court has determined that reuniting the parent and child is not in the child’s best interest. See Miss.Code Ann. § 93-15-103 (Rev.2004).

¶ 10. “A guardian ad litem shall be appointed to protect the interest of the child in the termination of parental rights.” Miss.Code Ann. § 93-15-107(1) (Rev.2004). Our supreme court has held that the failure to appoint a guardian ad litem in a termination of parental rights proceeding constitutes reversible error. E.M.C. v. S.V.M., 695 So.2d 576, 580 (Miss.1997). Although E.M.C. dealt with an action to adopt the child in addition to an action to terminate parental rights, we find this distinction irrelevant, as our supreme court has previously determined that the statute speaks for itself. “The statute, as written, is clear and unambiguous. It unequivocally mandates that a guardian ad litem be appointed to protect the interest of a child in a termination of parental rights proceeding. The statute is clearly mandatory and not permissive.” Luttrell v. Kneisly, 427 So.2d 1384, 1388 (Miss.1983).

¶ 11. The chancellor erred in failing to appoint a guardian ad litem to represent Nicole’s interests; therefore, this cause is reversed and remanded.

III. WAS IT ERROR FOR THE DEPARTMENT OF HUMAN SERVICES REPRESENTATIVE TO REFUSE TO TESTIFY AND WAS IT ERROR FOR THE CHANCELLOR TO REFUSE TO ALLOW HEFFNER TO REVIEW THE RECORDS SUBMITTED BY THE YOUTH COURT?

¶ 12. During the hearing on the matter, the chancellor states that he met in camera with the DHS social worker, Jean Rodgers, in order to discuss the investigation by DHS concerning Nicole. Prior to this proceeding the Panola County Youth Court issued an order permitting the limited disclosure of Nicole’s records. The order stated that the records be disclosed to Judge Willard and that the order be “construed to allow for the testimony of the appropriate case/social worker as to any personal observations and/or conclusions that she may have as to the minor child.” The record also contains a motion from Heffner’s attorney describing various discrepancies between the transcript of the hearing and the tapes of the hearing, including dialogue where Heffner called Rodgers, who had been subpoenaed by Heffner, to testify but Rodgers refused. The trial court later entered an order granting Heffner’s motion to correct errors in the transcript.

¶ 13. As a result, Heffner argues that it was reversible error for the chancellor to conduct the interview with Rodgers in camera with no record for this Court to review. Mississippi Code Annotated Section 43-21-261 (Rev.2004) discusses the disclosure of records involving children. Section 43-21-261(1) states that “Except as otherwise provided in this section, records involving children shall not be disclosed ... except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed .... ” This particular section lists seven specific persons or entities to whom the orders may be issued. But, Section 43-21-261(3) states that “Upon request, the parent, guardian or custodian of the child who is the subject of a youth court case or any attorney for such parent ... shall have the right to inspect any record, report or investigation which is to be considered by the youth court at a hearing. ...” This inspection of the records is limited, however, and does not permit copying.

¶ 14. In State v. U.G., 726 So.2d 151 (Miss.1998), the trial judge requested the youth court and school records of a juvenile criminal defendant and reviewed these records in camera. The supreme court found that the trial judge abused his discretion in not allowing either party to review these records and found that the judge, in doing so, denied the appellate court an opportunity to review the evidence he relied upon in making his decision. The supreme court stated that the parties could have reviewed the records and “made any challenges in camera while still protecting the defendant.” Id. at 156(¶ 24).

¶ 15. Furthermore, an opinion by the attorney general interprets the provisions of Section 43-21-261 as granting the parent, inter alia, the right to inspect the records without the prerequisite of an order from the youth court. Taylor, July 30, 2004, A.G. Op. # 04-0370.

¶ 16. We find that it was error for the chancellor to refuse to allow the parties to review Nicole’s records and to conduct the interview with Rodgers in camera. This Court cannot apply the appropriate standard of review if we do not have the same evidence before us as the chancellor.

¶ 17. THE JUDGMENT OF THE BOLIVAR COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


author: SMITH, Justice.

text:
    Ex parte KEELBOAT CONCEPTS, INC., and F. Michael Rickels. (In re Keelboat Concepts, Inc., and F. Michael Rickels v. C.O.W., Inc., and Joseph C. Bonner).
    1040091.
    Supreme Court of Alabama.
    Dec. 23, 2005.

      Jerome E. Speegle, Anthony M. Hoffman, and Robin Banek Taylor of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for petitioners.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for respondents.
   SMITH, Justice.

The plaintiffs, Keelboat Concepts, Inc., and F. Michael Rickels, petitioned this Court for a writ of certiorari in this declaratory-judgment action. They requested that this Court review the judgment of the Court of Civil Appeals affirming, without an opinion, the trial court’s judgment for the defendants, C.O.W., Inc., and Joseph C. Bonner. Keelboat Concepts, Inc. v. C.O.W., Inc. (No. 2030174, October 8, 2004), 921 So.2d 477 (Ala.Civ.App.2004) (table). We reverse and remand.

Facts and Procedural History

The dispute in this case arises from a provision in a franchise agreement giving the franchisee the option to renew the franchise agreement. On August 1, 1983, C.O.W., Inc., purchased a franchise for a “Cock of the Walk” catfish restaurant from Cock of the Walk, Inc., which owned the franchise system. Bonner was the majority shareholder in C.O.W., Inc. The restaurant, located in Mobile, opened for business on January 4, 1984, and Bonner ran the day-to-day operations of the restaurant. The franchise agreement between Cock of the Walk, Inc. (the franchisor), and C.O.W., Inc. (the franchisee), contained the following renewal provisions:

“A. Except as otherwise provided in this Franchise Agreement, the term of this Franchise Agreement shall be for a period of twenty (20) years, which period shall commence from the date of commencement of operations of the ‘Cock of the Walk’ Catfish Restaurant at the location as set forth in Exhibit ‘A’ attached.
“B. Franchisee may, at its option, renew this Franchise Agreement for one additional period of twenty (20) years, provided that at the time of renewal:
“1. Franchisee gives Franchisor written notice of such election to renew not less than twelve (12) months nor more than eighteen (18) months prior to the end of the primary term.”

(Emphasis added.) Because the restaurant opened for business on January 4, 1984, the parties concede that the agreement required Bonner to give notice sometime during the six-month period between July 3, 2002, and January 3, 2003, that he was exercising the option to renew.

In 1991, Bonner and Rickels decided to purchase the “Cock of the Walk” franchise system from Cock of the Walk, Inc. They formed a new corporation, Keelboat Concepts, Inc. (“Keelboat”), and they purchased all of the assets in the “Cock of the Walk” franchise system from Cock of the Walk, Inc. The two operated Keelboat and the franchise system together for approximately two years. Bonner also continued to operate the Mobile “Cock of the Walk” catfish restaurant franchise during this time.

In 1993, Bonner and Rickels decided that Rickels would purchase all of Bonner’s interest in Keelboat. On April 28, 1993, Bonner and Rickels executed a “Share Purchase Agreement” under which Bonner transferred all of his stock in Keel-boat to Rickels. As consideration for the purchase, the 1983 franchise agreement for the Mobile franchise location was amended to provide that Bonner would pay 0% in royalty fees for the remainder of the term of the franchise agreement as opposed to the 3% fee required by the original franchise agreement. In addition, the amended franchise agreement provided that Bonner would pay a 1% royalty fee to Keelboat during the second 20-year period if he decided to exercise the option to renew the franchise agreement under the renewal provision set out in the original agreement.

On January 22, 2003, Bonner sent Rick-els written notice that he was exercising the option to renew the franchise agreement for an additional 20 years. However, the terms of the franchise agreement required Bonner to send Rickels written notice of his election to renew between July 3, 2002, and January 3, 2003. The parties conceded at trial that Bonner failed to give written notice of his election to exercise the option to renew within the time required under the franchise agreement. On January 30, 2003, Rickels sent a letter to Bonner indicating that January 3, 2003, was the last date upon which notice of his election to renew could have been timely given, that the agreement had not been validly renewed, and that the franchise agreement had been terminated.

On April 29, 2003, Rickels and Keelboat sued Bonner and C.O.W., Inc., seeking a declaratory judgment as to the rights of the parties. Rickels and Keelboat sought a declaration that the franchise agreement had expired and that Bonner had failed to give timely notice of his election to renew. C.O.W., Inc., and Bonner answered and filed a counterclaim against Keelboat and Rickels, arguing that although the notice of renewal was not timely, the notice was nevertheless effective to renew the franchise agreement.

A bench trial was held on October 15, 2003, and the trial court entered a judgment in favor of Bonner and C.O.W., Inc. The trial court held that the evidence did not indicate “an intent of the parties to strictly adhere to [the] terms” of the franchise agreement, that “time was not of the essence,” and that “the language of the [Franchise] Agreement itself, and the conduct of the parties since 1983, indicate that no more than substantial performance of obligations under the [Franchise] Agreement was required.” Therefore, the trial court held that although Bonner exercised the option to renew after the option had expired, the renewal was effective to renew the franchise agreement for an additional 20 years.

Rickels and Keelboat appealed to this Court, and the case was transferred to the Court of Civil Appeals pursuant to Ala. Code 1975, § 12-2-7(6). The Court of Civil Appeals affirmed the decision of the trial court, without an opinion. Keelboat Concepts, Inc. v. C.O.W., Inc. (No. 2030174, October 8, 2004), 921 So.2d 477 (Ala.Civ.App.2004) (table). Rickels and Keelboat then petitioned this Court for a writ of certiorari. This Court granted the petition for the writ of certiorari to review the issue whether the terms of the renewal option in the franchise agreement should be strictly enforced because time is of the essence in an option contract. We decide that the terms of the renewal option should be strictly enforced and we therefore reverse and remand.

Standard of Review

“Typically, when a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.” Philpot v. State, 843 So.2d 122, 125 (Ala.2002). “ ‘However, where the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the court’s judgment carries no presumption of correctness.’ ” Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)). Questions of law are reviewed de novo. Alabama Republican Party, 893 So.2d at 342.

Discussion

“We have stated before that time is of the essence in an option contract unless it is expressly stated otherwise.” Allen v. Storie, 579 So.2d 1316, 1318 (Ala.1991) (citing Colonial Baking Co. of Alabama v. Pine Dale, Inc., 436 So.2d 856, 858 (Ala.1983) (“Time is always of the essence in an option contract unless expressly stated otherwise.”)). See also Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 415, 111 So. 427, 429 (1927) (“This is in accord with the generally recognized principal that in option contracts, unless expressly negatived, time is always of the essence of the contract.”). “ ‘The period of time within which an option is to be exercised is an inherent ingredient; and, unlike a contract which calls for no stated time for performance, the period of time in the case of an option is of the essence of the agreement.’ ” Jackson v. L.D. McReynolds, Inc., 430 So.2d 873, 875 (Ala.1983) (quoting National Sec. Ins. Co. v. Stewart, 43 Ala.App. 274, 277, 188 So.2d 774, 775 (1965)). “Option contracts are to be strictly construed, and any ambiguities are to be construed against the drafter.” Haddox v. Walker, 522 So.2d 266, 269 (Ala.1988) (citing Colonial Baking, 436 So.2d at 858).

The parties agree that the franchise agreement in this case contained an option provision allowing Bonner to renew the franchise agreement for an additional 20 years. It is also undisputed that Bonner failed to exercise the option within the six-month period stipulated by the franchise agreement. The right to exercise the option expired on January 3, 2003; Bonner sent his notice of renewal on January 22, 2003. Because time is of the essence in an option contract and because option contracts are to be strictly construed, the notice of renewal sent by Bonner on January 22, 2003, was not effective to renew the franchise.

Bonner and C.O.W., Inc., argue that the rule that time is of the essence in an option contract should not be strictly applied in this case. They correctly note that this Court has recognized certain factual situations in which the optionee may be excused from timely performance in exercising the option under an option contract. However, as explained below, the facts of this case do not fall within any of those recognized exceptions.

In Murphy, the parties entered into a contract for the sale of standing timber. 215 Ala. at 414, 111 So. at 428. The contract contained an option to renew that had to be exercised within a specified time period, but the optionee failed to allege sufficiently in his complaint that he had exercised the option within the time provided under the contract. Although the optionee failed sufficiently to allege that he had timely exercised the option, this Court held that the optionor had waived the right to timely performance of the option because the optionor had failed to object to the late notice. Murphy, 215 Ala. at 415-16, 111 So. at 430. The Court stated that “with respect to the timeliness of the tender, if no objection is made on that ground, but only on some other, the default as to time is held to be waived.” Murphy, 215 Ala. at 416, 111 So. at 430. See also Stewart, 43 Ala.App. at 274, 188 So.2d at 775 (rejecting the optionee’s argument that the optionor waived the right to timely exercise of an option).

The doctrine of waiver, however, does not apply to the facts of this case. In a letter sent to Bonner soon after he attempted to exercise the option to renew the franchise agreement, Rickels objected to Bonner’s attempt to exercise the option to renew on the basis that the time period for renewing the option had expired. The basis of Rickels’s complaint was that Bonner failed to exercise the option in a timely manner. Rickels and Keelboat subsequently filed this action seeking a judgment declaring that Bonner had failed to give timely notice of his election to renew the franchise agreement. Nothing in the record indicates that Rickels either failed to object to Bonner’s untimely attempt to exercise the option or that Rickels waived the timely exercise of the option.

This Court has also held that an op-tionee is excused from timely performance under an option contract when the op-tionee’s failure to exercise the option within the time required by the contract was a direct result of the optionor’s conduct. In Jackson, the parties entered into a lease agreement that contained an option to purchase property. 430 So.2d at 874. To exercise the option, the lessee had to provide written notice to the lessor and had to close on the property before the expiration of the lease term. The lessee was unable to obtain the financing necessary for closing because of an outstanding lien on the property. The lien on the property was eventually cleared by the lessor, but the lessor then refused to sell the property. The lessor argued that time is of the essence in an option contract and that the lessee had failed to fulfill the requirements necessary to exercise the option because the lessee did not close on the transaction by the lease-expiration date.

This Court held that “[wjhile we have no disagreement with [the] well-settled axiom of jurisprudence” that time is of the essence in an option contract, the failure of the lessee to exercise the option within the required time “rest[ed] upon [the lessor]” and “was a direct result of [the lessors] failure to present for examination a good and marketable title.” Jackson, 430 So.2d at 876. Thus, the rule that time is of the essence in an option contract did not apply to the facts of this case. Jackson, 430 So.2d at 876.

The facts of Holk v. Snider, 294 Ala. 318, 319, 316 So.2d 675, 675 (1975), are similar to the facts of Jackson. In Holk, upon which Bonner and C.O.W., Inc., rely, the parties entered into an agreement for the purchase of real estate. The buyers then contacted the seller’s real estate agent to complete the transaction. The buyers executed a contract for the sale of the property and delivered the down payment to the agent. The agent then attempted to contact the seller to arrange a time for the closing. The seller’s agent sent the seller a letter by certified mail attaching a copy of the contract and suggesting a time for the closing. However, the letter was unclaimed and was returned to the agent. The agent then sent two more certified letters to the seller; these letters were also unclaimed and returned to the agent. The purchasers were unable to complete the transaction, so they sued for specific performance. On appeal, the seller argued that because the agreement was an option contract, time was of the essence, and the buyers were not entitled to specific performance because they failed to complete the transaction within the required time. This Court rejected that argument, stating that “[t]ime is not the essence of a contract unless it is expressly stated by the parties or unless it naturally follows from the circumstances of the particular- case.” Holk, 294 Ala. at 321, 316 So.2d at 677 (citing McFadden & Bro. v. Henderson, 128 Ala. 221, 29 So. 640 (1900)).

Bonner and C.O.W., Inc., argue that this holding supports their position that time was not of the essence because the franchise agreement did not explicitly state that time was of the essence. However, the Court in Hoik went on to state that with an option contract, “time is ordinarily of the essence and should be strictly construed” and noted “ ‘the generally recognized principal that in option contracts, unless expressly negatived, time is always of the essence....’” Holk, 294 Ala. at 322, 316 So.2d at 678 (quoting Murphy, 215 Ala. 412, 415, 111 So. 427, 429). The Court noted that the seller “overlook[ed] the fact that ... it was her agent who sent her the letters on May 12, June 2, and June 19, 1972, enclosing the contract and agreement for [her] approval” and the fact that “[the buyers] have been ready, willing, and able to perform on their part since the date of the exercise of the option, and they are entitled to have specific performance.” Holk, 294 Ala. at 321, 316 So.2d at 677. The buyer’s failure to exercise the option effectively was the direct result of the seller’s failure to respond to the attempts to set a date for closing. Therefore, the Court held that time was not of the essence where the optionee’s failure to exercise the option was the result of the option- or’s conduct. Holk, 294 Ala. at 322, 316 So.2d at 678. See also Hicks v. Dunn, 622 So.2d 914, 917 (Ala.1993) (“This Court held that the right of the purchaser to exercise the option ‘was not subject to be defeated by any voluntary act on the part of defendant, whether done with intent to defeat the exercise of the option or not.’ [Holmes v. Myles, 141 Ala. 401, 405, 37 So. 588, 589 (1904)]. Specific performance was compelled because the purchaser ‘acted with due promptness in attempting to communicate to [the owner] his acceptance of the option.’ Id.”).

Under the facts of this case, there is no indication that Bonner failed to exercise the option to renew because of Rickels’s actions, and there is no evidence to indicate that Rickels took any action to prevent Bonner from exercising the option to renew within the required six-month period. Therefore, the facts of this case do not support Bonner’s argument that strict compliance with the terms of the option provision should not be enforced under the exception set out in Jackson and Hoik.

The trial court in the instant case held that although Bonner failed to give timely notice as required by the franchise agreement, Bonner nevertheless effectively exercised the option. The trial court stated:

“The evidence revealed little about the Franchise Agreement indicating an intent of the parties to strictly adhere to its terms ... [and] that time was not of the essence in the performance of the obligations of the parties under the Franchise Agreement. Both the language of the Agreement itself, and the conduct of the parties since 1983, indicate that no more than substantial performance of obligations under the Agreement was required. The Court, therefore, finds that Bonner’s notice to Rickels substantially complied with the Franchise Agreement and was effective to renew the franchise for a new term of 20 years.”

(Emphasis added.)

The trial court examined the “intent” of the parties in holding that strict adherence with the terms of the franchise agreement was not required. However, it is well settled under Alabama law that “ ‘[t]he words of a contract are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract.’ ” Ex parte Awtrey Realty Co., 827 So.2d 104, 107-08 (Ala.2001) (quoting Smith v. Citicorp Per-son-To-Person Fin. Ctrs., Inc., 477 So.2d 308, 310 (Ala.1985)). “Where a contract, by its terms, is plain and free from ambiguity, there is no room for construction and the contract must be enforced as written.” BoWing Office Sys., Inc. v. Johnson, 744 So.2d 915, 918 (Ala.Civ.App.1999) (citing Ex parte Conference America, Inc., 713 So.2d 953, 956 (Ala.1998), and Ex parte South Carolina Ins. Co., 683 So.2d 987, 989 (Ala.1996)). In addition, option contracts are to be strictly construed. Haddox, 522 So.2d at 269; Colonial Baking, 436 So.2d at 858. The option provision in this case clearly required that Bonner exercise the option by providing written notice to Rickels between July 3, 2002, and January 3, 2003. Because the option provision contained no ambiguity, the trial court erred in holding that the terms of the option should not be strictly construed and in looking outside the terms of the franchise agreement itself to determine the intent of the parties.

The trial court also stated that the evidence indicated that only “substantial performance of obligations” was required, and, therefore, that “time was not of the essence in the performance of the obligations of the parties under the Franchise Agreement.” Under the doctrine of substantial performance, “[w]here a contract is made for an agreed exchange of two performances, one which is to be rendered first, substantial performance of the first obligation, rather than exact or strict performance of the contract’s terms, is sufficient to entitle the contractor to recover.” 17A Am.Jur.2d Contracts § 616 (2004). See also Bay City Constr. Co. v. Hayes, 624 So.2d 1031, 1034 (Ala.1993) (holding that the plaintiff was permitted to recover damages for breach of contract because, although he had not performed all of the obligations on his part under the contract, he had substantially performed the obligations).

The trial court’s reliance on the equitable doctrine of substantial performance of obligations is misplaced because this is not a breach-of-contract case. If Bonner had never attempted to exercise the option, there would be no cause of action for breach of contract because he had no obligation to renew. See McGuire v. Andre, 259 Ala. 109, 114, 65 So.2d 185, 189 (1953) (holding that an option to purchase “merely gives the right to purchase within a limited time without imposing any obligation to purchase”); Stewart v. Robert son, 490 So.2d 13, 15 (Ala.Civ.App.1986) (“In a contract to purchase and sell, a mutual obligation exists ...; whereas, in an option to purchase, no binding obligation to purchase exists”). Despite the trial court’s holding that “time was not of the essence in the performance of the obligations of the parties under the Franchise Agreement” (emphasis added) and thus “no more than substantial performance of obligations ” was required (emphasis added), Bonner had no “obligation” to renew the franchise agreement; the renewal provision was an “option,” not an “obligation.” See McGuire, 259 Ala. at 114, 65 So.2d at 189; Stewart, 490 So.2d at 15. Bonner and C.O.W., Inc., cite no authority for the proposition that “substantial compliance” is an exception to the rule that time is of the essence in an option contract, and the trial court erred in so holding.

Although the trial court explains its judgment in terms of the doctrine of substantial compliance, the trial court’s judgment could also be construed as holding that Rickels waived the right to timely performance by not requiring Bonner to “strictly adhere” to other terms in the franchise agreement. Bonner argues that the evidence shows that he was not required to comply strictly with many of the provisions in the franchise agreement. For example, Bonner argues that Keelboat did not strictly enforce the franchise recipe requirements for the catfish seasonings and the coleslaw at the Cock of the Walk restaurant Bonner operated. Bonner frequently used his own recipes instead of the approved franchise recipes. In addition, Boner argues that Keelboat never required Bonner to strictly adhere to staff uniform requirements, and Bonner never required his employees to sign eonfiden-tiality agreements in accordance with the franchise agreement. Lastly, Bonner served Pepsi brand products; thus, he did not strictly comply with the requirement in the franchise agreement that Cock of the Walk restaurants serve Coca-Cola brand products. Keelboat argues that Bonner was required to comply strictly with the terms of the franchise agreement, and the record indicates that Rickels sent “countless letters” to Bonner asking him to comply with the terms of the franchise agreement. However, Bonner argues that these letters did not amount to a demand for strict compliance with the terms of the franchise agreement because, he says, the tone of the letters was “cordial” or friendly-

Even if the trial court’s holding, couched in terms of the “substantial performance” doctrine, is actually based on the doctrine of waiver, the facts do not support a finding that Rickels waived his right to timely performance. As already noted, the record shows that Rickels promptly notified Bonner by letter that his renewal notice was ineffective because it was untimely. Cf. Murphy, 215 Ala. at 416, 111 So. at 430 (holding that the optionor waived the right to timely exercise of the option because the optionor failed to object on that ground). In addition, even if Rickels did not require Bonner to “strictly adhere” to certain terms of the franchise agreement, the agreement contained an anti-waiver provision, which provided:

“No failure of Franchisor to exercise any power reserved to it in this Franchise Agreement or to insist upon compliance by Franchisee with any obligation or condition in this Franchise Agreement, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of Franchisor’s right to demand exact compliance with the terms of this Franchise Agreement.”

See, generally, Lynaum Funeral Home, Inc. v. Hodge, 576 So.2d 169, 170-71 (Ala.1991) (stating that the trial court did not err in holding that a landlord was not estopped from terminating a lease because of late rent payments even though the landlord had previously accepted rent payments after their due date because the lease contained an anti-waiver provision that expressly reserved the right to accept late rent payments without waiving his right to declare default). Therefore, under this anti-waiver provision, Rickels’s failure to strictly enforce terms of the franchise agreement relating to the day-to-day operations of the restaurant could not amount to a waiver of the requirement that notice of the election to renew be timely given.

Bonner also argues that Mississippi law should apply in this case because the 1983 franchise agreement contained a choice-of-law provision stating that the “Franchise Agreement shall be interpreted and construed under the laws of the State of Mississippi .... ” Rickels, however, argues that Alabama law applies in this case because the 1993 “Share Purchase Agreement,” which also contained an amendment to the 1983 franchise agreement, stated that “it is the intention of the parties that the laws of the State of Alabama should govern the validity of this Agreement and the construction of its terms and the interpretation of the rights and duties of the parties.” At the summary-judgment stage of this case, the parties disputed which state’s law applied. However, the trial court did not rule on the motions for a summary judgment and did not make a ruling as to what state law applied in the case. Neither Bonner nor Rickels made this choice-of-law argument during the trial. In addition, at trial, no party moved the trial court to determine whether Mississippi law applied in the case, and Bonner did not cite any Mississippi caselaw during trial. The trial court’s final order does not indicate what law was applied. However, even if Mississippi law applied in this case, the result would be the same. In Robinson v. Martel Enters., Inc., 337 So.2d 698, 702-04 (Miss.1976), the Mississippi Supreme Court held:

“ ‘It is incumbent upon the optionee to exercise the option in the manner provided in the contract and, unless such requirements are waived, his failure to do so, or his attempt to exercise it in another manner, is inoperative to form a binding contract .... ’ [quoting Reynolds v. Maples, 214 F.2d 395, 398 (5th Cir.1954)].
“ ‘As a general proposition, an option contract is of such a nature that time is generally regarded as of the essence thereof, even in equity.’ [quoting 72 A.L.R.2d 1127 (1960)].
“As a general rule, time is of the very essence of an option contract. Poole v. McCarty, 229 Miss. 170, 90 So.2d 190 (1956); 17 Am.Jur.2d Contracts § 335 (1964). When the option contract calls for giving notice of the grantee’s intention to exercise the option, a great majority of courts have held that this provision is of the essence, and that upon failure to give timely notice, the option expires. 72 A.L.R.2d 1127 (1960); 71 Am.Jur.2d, Specific Performance § 145 (1973).
“... [W]e have decreed strict compliance with the terms and provisions of option contracts. See Poole v. McCarty, 229 Miss. 170, 90 So.2d 190 (1956). To allow [the optionee] to ignore such a notice requirement or substitute his own date and manner for giving notice of his intention to exercise his option is tantamount to this Court’s making a different contract between the parties, which we cannot do.”

See also Frazier v. Northeast Mississippi Shopping Ctr., Inc., 458 So.2d 1051, 1055 (Miss.1984) (holding that time is of the essence in the exercise of an option contract); Poole v. McCarty, 229 Miss. 170, 175-76, 90 So.2d 190, 193 (1956) (‘“The province of the courts in respect to contracts extends not a single step farther than the enforcement thereof as made by the parties, and the courts must be careful that they go no farther...... Time is of the very essence of an option and we are therefore of the opinion that the complainant was not entitled to specific performance of the contract as written, the option therein provided for having expired.... ”).

Bonner and C.O.W., Inc., cite Robinson for their argument that under Mississippi law, only option contracts involving an interest in land are governed by the rule that time is of the essence in an option contract. Although Robinson does involve an option contract for the purchase of land, the Court in Robinson does not limit the application of the rule that time is of the essence with an option contract to option contracts for the purchase of land.

Bonner and C.O.W., Inc., also cite Christiansen v. Griffin, 398 So.2d 213, 216 (Miss.1981), for the proposition that the “substantial performance” rule should apply in the case at bar. In Christian-sen, the owner of a floral business wanted to sell the entire business, including the real property on which the business was located. The business owner entered into negotiations for the sale, but the parties discovered that the city business permit necessary for the operation of the floral business could not be transferred to the buyer. To avoid this problem, the parties entered into an “Employment Agreement” whereby the owner of the floral business “employed” the prospective purchaser to run the business. Under the agreement the prospective purchaser would operate the business and would pay a certain amount per month that would be applied to the purchase price. The parties also entered into an option contract giving the prospective purchaser the right to purchase the business, including the real estate. The purchaser-optionee had to exercise the option to purchase the business by providing notice of the intent to purchase by a certain date. The option to purchase could be renewed for seven successive one-year periods through written notice. The optionee did not provide notice that she was exercising the option until more than a year after the date required for the giving of such notice. The business owner initially agreed to complete the sale; however, he later objected to the sale on the ground that the op-tionee failed to give the required notice of the intent to renew the option period. The Mississippi Supreme Court held that the business owner had waived the right to timely performance of notice. The Court noted that the business owner had informed state tax commissioners that the optionee had already purchased the business, and he had written to the city planning board requesting that the permit be transferred to the optionee. In addition, the business owner initially had agreed to proceed with the transaction; therefore, he failed to object to the late renewal notice. Lastly, the business owner had already accepted a $10,000 down payment for the purchase along with monthly installment payments totaling $11,730. The Court held that this conduct of the business owner “clearly evidenced a waiver by appellant of any pretended notice requirement of the contract.” Christiansen, 398 So.2d at 216.

Contrary to Bonner’s assertion, the Court in Christiansen does not apply, or even mention, the “substantial performance” rule. Rather, the Court applied the doctrine of waiver to hold that the optionor had waived the right to timely notice under the option contract. Like the caselaw in Alabama, the Christiansen case holds that the optionor may waive the timely notice requirement. However, as already discussed, the doctrine of waiver does not apply to the facts of this case.

Conclusion

We conclude that the Bonner and C.O.W., Inc., did not effectively renew the franchise agreement because time was of the essence of the option contract and the renewal notice was not timely; thus, the trial court erred in ruling that Bonner’s late notice of renewal was effective to renew the franchise agreement for an additional 20 years. We therefore reverse the judgment of the Court of Civil Appeals affirming the trial court’s ruling, and we remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

NABERS, C.J., and SEE, HARWOOD, WOODALL, STUART, BOLIN, and PARKER, JJ., concur.

LYONS, J., recuses himself.

      . This case was originally assigned to another Justice; it was reassigned to Justice Smith.

      . C.O.W., Inc., retained title to the real property in Mobile upon which the Cock of the Walk catfish restaurant was located.

      . This case deals with an option contract that contains a limitation on the time within which to exercise the option. If an option agreement contains no time limitation, the option must be exercised " ‘within a reasonable time.’ " Herring v. Prestwood, 379 So.2d 548, 551 (Ala.1979) (quoting Smith v. Cleveland, 289 Ala. 401, 403, 268 So.2d 14, 16 (1972)).

      . The 1983 franchise agreement contained a provision stating that the franchisee was obligated "[t]o open the 'Cock of the Walk' Restaurant ... within four (4) months (one hundred twenty (120) days) from the date of this [franchise] Agreement, time being of the essence in this contract.” The parties disputed whether the clause "time being of the essence in this contract” applied to the entire contract or only to the particular provision it followed. In addition, the parties also disputed whether this provision “carried over” to the amended franchise agreement the parties entered into in 1993. However, we do not need to resolve these issues here, because we granted certio-rari review to determine whether the affir-mance by the Court of Civil Appeals conflicts with the general rule that time is of the essence in an option contract unless otherwise specified.

      . Although there may be a dispute as to whether Bonner was required to adhere strictly to the terms of the franchise agreement, there is no ore tenus presumption of correctness in favor of the trial court’s judgment because the doctrine of substantial compliance, as a matter of law, does not apply in this case.


author: PER CURIAM.

text:
    KEELBOAT CONCEPTS, INC., and F. Michael Rickels v. C.O.W., INC., and Joseph C. Bonner.
    2030174.
    Court of Civil Appeals of Alabama.
    March 10, 2006.
    Jerome E. Speegle and Anthony M. Hoffman of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellants.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellees.
   On Remand from the Alabama Supreme Court.

PER CURIAM.

This court, on October 8, 2004, affirmed the trial court’s judgment, without an opinion. Keelboat Concepts, Inc. v. C.O.W., Inc. (No. 2030174, October 8, 2004), 921 So.2d 477 (Ala.Civ.App.2004) (table). This court’s judgment has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Keelboat Concepts, Inc., 938 So.2d 922 (Ala.2005). In compliance with the Supreme Court’s opinion, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with the Supreme Court’s opinion.

REVERSED AND REMANDED.

All the judges concur.