author: DIAZ, Justice,

text:
    Carroll GRAVES and Cathy Graves v. DUDLEY MAPLES, L.P., and Hancock Bank, Trustee, for the A.F. Dantzler, Jr., Trust.
    No. 2004-CA-01510-SCT.
    Supreme Court of Mississippi.
    March 8, 2007.

      James H. Herring, Canton, attorney for appellants.
    Mark Anthony Maplés, Lucedale, W. Lee Watt, Jackson, Joseph Anthony Sherman, attorneys for appellees.
    Before WALLER, P.J., DIAZ and CARLSON, JJ.
   DIAZ, Justice,

for the Court.

¶ 1. This case concerns whether a prescriptive easement exists over a piece of property.

Facts and Course of Proceedings Below

¶ 2. The facts giving rise to this case are not in dispute. Dudley Maples, L.P. is a corporation that owns property in George County, Mississippi. Sard-Mag Road is the only way one can reach the land-locked property. Roughly every three months, Dudley Maples or another designee of Dudley Maples, L.P., takes that road to visit his property. Maples inspects the timber growing on the property for growth patterns, fire prevention, and insect infestation, and performs other tasks necessary to property management. In addition to selling timber from the property, Maples also draws income by leasing the land to hunters. The hunters also use Sard-Mag Road to access the property. According to Maples, the road has been in use by individuals who owned property along its borders for nearly a century.

¶ 3. Maples was concerned about an attack on the timber by the blackheaded pine sawfly, an insect which consumes the foliage of pine trees. Defoliation can cause a considerable reduction in the ability of the tree to grow, and may also subject it to attack from other pests, such as bark beetles. This loss of growth can cause a loss of value and delay the harvest. Maples had been advised by the Mississippi State Extension Service to inspect the trees regularly.

¶ 4. On March 29, 2002, Carroll Graves purchased property surrounding Sard-Mag Road. This land is situated between the main road, Highway 26⅛ and Maples’ property. Not long after his purchase, Graves blocked the road with a pile of debris.

¶ 5. Maples filed a complaint on October 24, 2002, for a temporary restraining order, a preliminary injunction, and a permanent injunction barring Graves from blocking the road. His other goal was to persuade the trial court to formally declare that a prescriptive easement was established for the portion of Sard-Mag Road that runs across Graves’ property. On November 13, 2002, the George County Chancery Court granted a TRO compelling Graves to reopen access to Sard-Mag Road to Maples “and his designees until the final order of this court is entered and the issues are fully resolved by the hearing.”

¶ 6. After receiving the TRO from the trial court, Maples sent a copy of the order and a letter to Graves, notifying him that Maples or a designated list of agents would resume using the Sard-Mag Road to inspect his property. After receiving no response, Maples sent Graves another letter and copy of the TRO. Maples then sent agents across to reach his land, but they were thwarted by Graves and his wife, who were accompanied by a George County constable. Despite the presence of a court order allowing them to use the road to reach the landlocked property, the desig-nees of Maples were threatened with arrest by the constable if they continued down the road. Afterwards, Maples learned that Graves had erected a barbed wire fence across the road.

¶ 7. Maples then moved for sanctions and attorneys’ fees because of Graves’ flagrant violation of the order of the chancery court. At the direction of the trial court, other property owners affected by the blocked road were notified. The A.F. Dantzler, Jr. Trust intervened through its representative Hancock Bank. The Dant-zler Trust owns property directly east, west, and south of the Graves’ property, all of which was made inaccessible by Graves’ actions.

¶8. To avoid sanctions for his blatant disregard of the order, Graves entered into a consent order with Maples and Dantzler. The order noted that Graves was ordered, and agreed, to remove the debris pile and fence blocking Sard-Mag Road, and would reestablish the road. He agreed “not to interfere in any respect whatsoever with Plaintiffs’ use of their properties.” The order allowed any “employees, agents and assigns” of Maples and Dantzler to use the road. Finally, Graves agreed that “should he not comply with this order,” that Maples and the Dantzler could be granted attorneys’ fees and costs for any effort made to ensure compliance with the consent order. The agreement was signed by attorneys for all three parties on January 3, 2003.

¶ 9. However, even after he agreed to abide by the order, Graves refused to hon- or its terms. He opened gaps in the barbed wire fences, but only on the northern and western sides. The eastern and southern sides remained fenced, which still blocked Maples and Dantzler from inspecting their property. Graves also followed designees of Maples and Dantzler on his four-wheeler, and on one occasion threatened a designee traveling on the road not to return to the property. At roughly the same time, Dantzler discovered that boat ramps had been cut into portions of its property that bordered Black Creek, and suspected Graves played a role in the destruction of the creek banks. Graves later admitted at trial that he had indeed cut the creek banks.

¶ 10. Maples and Dantzler then petitioned the trial court for a mandatory injunction forcing Graves to comply with the terms of the agreed order, a citation of contempt for failure to comply, and attorneys’ fees for having to bring further legal action. Yet another order was entered by the trial court, again signed by attorneys for all parties, affirming all the terms of the previous order and mandating a repair of the creek banks. The only question reserved was the request for attorneys’ fees, which was to be determined at trial.

¶ 11. The trial was held over five days in late 2003. Because Graves admitted at trial that he knew Maples and Dantzler had a right to use the road, the trial court found that the need for “litigation and the numerous orders and methods of procedure taken throughout [this case] were, in fact, frivolous in nature.” Graves repeatedly admitted that he knew the road was open to all and that he had personally piled the debris, built the barbed wire fence, and cut the creek banks on Black Creek.

¶ 12. The trial court ultimately found that a prescriptive easement existed over Graves’ property due to its use as an access road to Black Creek and as a logging road since the 1930’s. Use of the road was allowed in favor of Maples, Dantzler, and their designees, invitees, and assigns. Graves was permanently enjoined from interfering with the use of the road by those persons. Graves was ordered to repair the creek banks he damaged and to pay $3,200 to Dantzler and $2,500 to Maples to pay their attorneys’ fees incurred in bringing the action.

¶ 13. Graves did not petition the court for reconsideration of this judgment or a new trial, but instead appealed directly to this Court. He argues three separate errors were committed by the trial court.

Standard of Review

¶ 14. On review, we generally defer to a chancery court’s findings of fact unless they are manifestly wrong or clearly erroneous. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000). We use a de novo standard of review when examining questions of law decided by a chancery court. Id.

I. Was the trial court’s finding of a prescriptive easement against the weight of the evidence?

¶ 15. Graves argues that the finding of a prescriptive easement across their land was against the weight of the evidence. In response, Maples offers that this issue was never raised in a motion to reconsider at the chancery court. We have “repeatedly held that a trial judge will not be found in error on a matter not presented to the trial court for a decision.” Purvis v. Barnes, 791 So.2d 199, 203 (Miss. 2001). “[T]here are certain errors that parties must bring to the attention of the trial judge in a motion for a new trial,” or they will not be considered on appellate review. McLemore v. State, 669 So.2d 19, 24 (Miss.1996). “These include all new matters, motions made upon the ground of inadequate or excessive damages, motions made for new trial where it is contended that the verdict is against the overwhelming weight of the evidence, and the denial of a continuance.” Id.; see generally T. Jackson Lyons, “Preservation of Claims and Error,” Ency. of Miss. Law App. Prac. & Proc. § 11 (J. Jackson & M. Miller eds.2006).

¶ 16. The proper method to address any concerns about evidence would have been through a motion for a new trial pursuant to M.R.C.P. 59, which provides that a chancellor or other trial court sitting without a jury “may open the judgment if one has been entered, take additional testimony, amend findings of fact and. conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” See also Purvis, 791 So.2d at 203 (“Logically, the only way to present an error regarding a question such as this would be by way of a motion for a new trial”).

¶ 17. Moreover, the record is replete with the testimony of more than a dozen witnesses who testified to the historical use of the road by the public and adjacent landowners. Sard-Mag Road had been used for decades by members of the community to access Black Creek and for property owners to access their timber. Graves himself repeatedly agreed that it was not reasonable to block access to the road; that Maple and Dantzler should have access to the road; that his blocking the road had nothing to do with Maple or Dantzler, but instead his personal problems with two local individuals; and that he agreed everybody used the roads and never needed to ask permission; and that he himself had never asked permission to use it in the decades before he acquired the land. Such ample testimony, including repeated admissions by Graves, are why the trial court deemed the road to be subject to a prescriptive easement. Additionally, the chain of title leading to Graves’ purchase in 2002 indicates exceptions to the title for “unrecorded easements and rights-of-way for existing roads (public or private).” The trial court committed no error in its finding.

¶ 18. The trial court also found that Graves should have to pay the attorneys’ fees of Maples and Dantzler. In his brief, Graves argues without citation that “[t]here should be no requirement for defendants to pay any money to the plaintiffs for legitimately attempting to protect their property rights.” It is long-settled that failure to cite any authority in support of claims of error precludes this Court from considering the specific claim on appeal. See Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). Additionally, this argument is procedurally barred as it was not raised in a motion to reconsider or motion for a new trial. See McLemore, 669 So.2d at 24 (before appellate court can review “motions made upon the ground of inadequate or excessive damages” they must be presented to the trial court).

¶ 19. The record is clear that Graves repeatedly ignored the orders of the trial court to cease blocking the road and depriving Maples and Dantzler of access. At one point, Graves went so far as to threaten designees of Maples with arrest, even though they were in possession of a lawful court order granting them access to the road. Graves also agreed in the first consent order that he would pay the costs of any attorneys’ fees if disobeyed the order. That blatant disregard for the orders of the court, coupled with his repeated admissions at trial by which he actually agreed that blocking the road was wrong, that Maples and Dantzler should have access to the road, and that the road for decades had been used by the community, are reasons why the chancery court deemed an award of attorneys’ fees to be warranted. They are also the reasons why the chancellor categorized the action as “frivolous.” The trial court committed no error in assessing Graves these costs.

II. Was there “misjoinder or non-joinder of parties” because Dudley Maples was not joined as an individual?

¶ 20. Graves argues that the trial court should be reversed because Dudley Maples was not joined in the action as an individual, and he cites no cases in support of the argument that misjoinder or non-joinder warranted reversal. As noted supra, failure to cite any authority in support of claims of error precludes this Court from considering the specific claim on appeal. See Grey, 638 So.2d at 491. This argument that Maples should have been joined in the action as an individual was never raised at trial or in any post-trial motion. Accordingly, it is barred. See McLemore, 669 So.2d at 24 (before appellate court can review “all new matters” must be first presented to the trial court). This decision is not made capriciously, but under “the ordinarily sound principle that this Court sits to review actions of trial courts and that we should undertake consideration of no matter which has not first been presented to and decided by the trial court.” Purvis, 791 So.2d at 203.

¶21. Graves strains mightily against these multiple procedural bars, and while still failing to provide citation to cases regarding joinder or the need for necessary parties, asserts that there may be a problem with subject matter jurisdiction. Subject matter jurisdiction may be raised at any time, even for the first time on appeal. See M.R.A.P. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action or transfer the action to the court of proper jurisdiction”); Comment, M.R.A.P. 12 (“Under Rule 12(h)(3) a question of subject matter jurisdiction may be presented at any time ... [and] may be presented for the first time on appeal”).

¶ 22. However, no justifiable basis exists for arguing that a chancery court does not have jurisdiction over matters involving property. Such authority is conferred by our constitution, history, and precedent. See Miss. Const, art. 6, § 160. Nor did Graves offer any cases in which a chancery court lacked jurisdiction to address an easement by prescription. Additionally, even if jurisdiction is problematic, “once a chancery court makes a final judgment on the merits of the case, this Court may not reverse that finding without finding an error in addition to lack of subject matter jurisdiction.” U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So.2d 38, 47 (Miss.2002) (emphasis added); Miss. Const, art. 6, § 147. Thus this argument fails for a variety of reasons.

III. Was it error for the trial court to allow Darwin Maples to testify?

¶ 23. This is the one argument by Graves which is not procedurally barred, as the objection made at trial preserved it for our review. See McLemore, 669 So.2d at 24 (“Having made an objection at trial, the objection was preserved for appellate purposes despite its failure to appear in the appellant’s motion for a new trial”). Graves argues that it was reversible error to allow Darwin Maples, the brother and attorney of Dudley, to testify at trial.

¶ 24. The landmark Mississippi case on this subject is Pittman v. Currie, in which we examined the general undesirability of attorneys testifying in cases wherein they are counsel, a practice which we have said should be avoided if possible. 414 So.2d 423 (Miss.1982); see Miss. R. Prof'l Conduct 3.7. We explicitly noted that “permitting [an attorney’s testimony at trial is not a ground for reversal.]” Id. at 427. We further expounded that

the rationale of the rule rests on the premise that there exists a conflict of interest when an advocate is asked to be a witness. The rule disqualifies a lawyer where there is a likelihood that the lawyer will be a necessary witness. This rule then is not an immunity from testifying by the advocate witness, but it is a limitation on advocacy.

Pearson v. Parsons, 541 So.2d 447, 452 (Miss.1989). Allowing an attorney to testify as a witness may result in his or her disqualification as an advocate, but not as a witness with relevant testimony. Id. at 452 (“withdrawal from representation of both counsel who were to be witnesses on contested issues was required”); see also West v. State, 519 So.2d 418, 423 (Miss.1988) (“The court may admonish an attorney when it appears that he knew in advance that he would be called upon to testify in a case, for taking active part in the trial of a case, but the court cannot refuse an accused the right to introduce competent evidence in his favor because it may appear that an attorney has violated an ethical rule”).

¶ 25. In spite of our clear precedent prohibiting reversal in these types of cases, Graves urges reversal is warranted because Darwin Maples was allowed to testify. The record is clear that Darwin Maples immediately ceased his advocacy on behalf of his brother when he was brought in to testify. Further, Graves omits an important fact. In Pittman and Pearson, the attorney-witnesses sought to testify for their clients. In the case at hand, Darwin Maples testified not for his brother and client, but for the Dantzler Trust.

Mr. Watt [attorney for the Dantzler Trust]: So that the record is amply clear, the plaintiff calling this witness to testify [is] Hancock Bank, trustee for A.F. Dantzler, Jr. Trust.
This is the oldest witness who has knowledge of the road ... I have interviewed many, many people to establish the relationship with the Dantzler family to establish the use of the road, and the prescriptive easement, which has been created over at least 70 years. And this witness goes further back than anyone else.... I don’t care whether anyone else asks him any other questions, but the Dantzler Trust should not be prohibited from using [his testimony].... [H]e is not counsel for Dantzler.... This is our primary witness. We have two witnesses ... and this is one of them.

It is clear from the record that the trial court expressly examined the Pittman case and grappled with the underlying doctrine (stating that “it is frowned upon by the Court to have someone try to serve as both counsel and as a witness”), and also that Maples was disqualified as an attorney for his brother. This is in accordance with our precedent and has never been the basis for a reversal. The judge acted within his discretion in allowing Darwin Maples to testify.

Conclusion

¶ 26. For the reasons above, we affirm the judgment of the George County Chancery Court that Maples and the Danztler Trust have a prescriptive easement over that portion of Sard-Mag Road crossing the Graves’ land, and affirm the judgment that Graves must pay attorneys’ fees for all parties.

¶ 27. AFFIRMED.

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

      . Neither party provided a concise summation of the facts in this case, only reciting at great length the course of proceedings in the trial court and events at trial. This is contrary to our Rules of Appellate Procedure and is disfavored. See M.R.A.P. 28(a)(4) (parties should provide a "statement of facts relevant to the issues presented for review, with appropriate references to the record”).

      . Once reaching Graves' property, Sard-Mag Road branches off into three directions.

      . Although Graves repeatedly objects in his briefs to Sard-Mag Road being declared open to the public, no such order was issued by the trial court. Indeed, the chancery court explicitly noted that "the Court will refrain from declaring the road a public road” and narrowed those who might use it to Maples, Dantzler, and their designees. The trial court did note that members of the general public could possibly use the road "to the extent that the Plaintiffs have shown the general public to be a de facto invitee of Dantzler and Maples,” as there was evidence of people using the road to access Black Creek for fishing and swimming.


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    Kimberly Crum CREEL v. BRIDGESTONE/FIRESTONE NORTH AMERICAN TIRE, LLC, and Ford Motor Company.
    No. 2005-CA-01875-SCT.
    Supreme Court of Mississippi.
    March 8, 2007.

      Stephen W. Mullins, Ocean Springs, Brandon C. Jones, attorneys for appellant.
    David L. Ayers, James J. Crongeyer, Jr., Graham P. Carner, Jackson, Tiffanee Wade-Henderson, Walker W. Jones, III, Barry W. Ford, Joan Leigh Lucas, Jackson, attorneys for appellees.
    Before WALLER, P.J., DIAZ and DICKINSON, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. In this appeal we are asked to consider the propriety of the Jefferson County Circuit Court’s transfer of a suit to Rankin County and the Rankin County Circuit Court’s subsequent grant of summary judgment to defendants. Because we have mandated that plaintiffs misjoined under Miss. R. Civ. P. 20 must be dismissed without prejudice and that judicially articulated rules on severance and transfer will be applied retroactively on appeal, the Jefferson County Circuit Court erred in transferring the case to Rankin County. Instead, the circuit court should have dismissed the case without prejudice for failure to meet the joinder requirements of Rule 20 and because Jefferson County was never an appropriate venue for the claims raised in the complaint. The Rankin County Circuit Court’s grant of summary judgment is therefore reversed, and this cause is dismissed without prejudice.

FACTS

¶ 2. On January 31, 2001, Kimberly Crum Creel, a resident of Louisiana, filed a product liability suit in the Jefferson County Circuit Court against Ford Motor Company and Bridgestone Firestone North America Tire, LLC, for injuries and property damage arising from a rollover accident in Webster Parish, Louisiana. She claimed the accident was caused by product defects in her 1991 Ford Explorer and in her Firestone Wilderness AT tires. Creel acknowledges that no element of her claims had any connection to Mississippi: She was a resident of Louisiana at the time the suit was filed and remains a resident of Louisiana today; she purchased her car and tires in Louisiana; her accident occurred in Louisiana; and her treatment for her injuries occurred in Louisiana. Her claims were originally part of a mass action suit filed in Jefferson County as Cynthia King, et al. v. Ford Motor Co., et al, involving forty-one individual plaintiffs and twenty-seven accidents.

¶ 3. After the multi-plaintiff action was filed, Ford and Firestone removed it to the United States District Court for the Southern District of Mississippi, which then transferred it to the Ford/Firestone Multi District Litigation (MDL) panel in the United States District Court for the Southern District of Indiana. After proceeding in the MDL, the action was remanded to the Circuit Court of Jefferson County.

¶4. After the action was remanded, Ford and Firestone filed, and the circuit court granted, motions to sever the improperly joined plaintiffs and transfer them to appropriate venues. Creel and the other severed plaintiffs were ordered to provide the court with an order transferring venue to an appropriate venue of their choice. While there is no indication in the record that Creel or any of the other misjoined plaintiffs provided the circuit court with such an order, the plaintiffs filed a motion for a stay of the proceedings, arguing that the court should require Ford and Firestone to waive any statutes of limitations so that non-resident plaintiffs could dismiss their claims and refile claims in appropriate venues. The court denied the motion to stay and transferred Creel’s case, along with several others, to the Circuit Court of Rankin County, where both Ford and Firestone maintained agents for service of process. Creel then filed a petition for an interlocutory appeal, which was denied.

¶ 5. After the cases were transferred, Ford and Firestone filed a motion for summary judgment, and Creel responded by filing a motion to dismiss the case under the doctrine of forum non conveniens. The circuit court granted Ford and Firestone’s motion, finding that Creel’s claims were time-barred under the Louisiana statute of limitations, which was applied pursuant to Mississippi’s “borrowing statute,” Miss.Code Ann. § 15-1-65 (Rev.2003), and dismissed Creel’s motion as moot. Creel now appeals the grant of summary judgment, claiming that the Jefferson County Circuit Court erred in transferring her claim to Rankin County, and that the Rankin County Circuit Court misapplied Louisiana law in finding that the statute of limitations on her claim had run.

DISCUSSION

¶ 6. Creel raises three issues on appeal, arguing that (1) the Jefferson County Circuit Court erred in transferring her claim to Rankin County; (2) the Rankin County Circuit Court erred in denying her motion to dismiss for forum non conveniens; and (3) the Rankin County Circuit Court misapplied Louisiana law in finding that the statute of limitations on her claim had run. Because the first issue is dispositive, the second and third issues will not be considered in detail.

Whether the Jefferson County Circuit Court Erred in Transferring Creel’s Suit to Rankin County

¶ 7. The issue of the transfer of Creel’s case concerns the procedural implications of Janssen Pharmaceutica v. Armond, 866 So.2d 1092 (Miss.2004), in which we held that plaintiffs may not be joined unless their claims are connected by a distinct, litigable event. Armond, 866 So.2d at 1099. If a plaintiff fails to meet the requirements for joinder and venue is not proper before the forum court, the trial judge must determine an appropriate venue and transfer the case. Id. at 1102. However, because Armond did not provide guidelines to the lower courts for determining venue and transferring severed cases, we found it necessary to revisit these matters in Canadian National/Illinois Cent R.R. v. Smith, 926 So.2d 839 (Miss.2006).

¶ 8. In Canadian National, we recognized that requiring trial courts to determine the appropriate venue for misjoined plaintiffs created a number of procedural difficulties and restricted the plaintiffs’ traditional right to choose a venue. In light of these problems, we adopted an amended rule for severance and transfer:

Where plaintiffs are misjoined and severance is required, we' hold that the better rule — and the one we adopt today — is for the trial court to (1) allow a plaintiff whose case is properly before the court (if any), and all properly joined plaintiffs, to proceed in the filed action, (2) allow misjoined plaintiffs who are properly before the trial court to proceed with separate actions in the forum court, and (3) sever and dismiss all mis-joined plaintiffs who lack proper venue in the forum court, allowing each severed plaintiff to file a new complaint in an appropriate venue selected by that plaintiff.

Canadian National, 926 So.2d at 845. This rule adheres to the general principle that misjoined plaintiffs whose claims were not appropriate in the forum court should be dismissed without prejudice. See Amchem Prods., Inc. v. Rogers, 912 So.2d 853, 859 (Miss.2005) (“The out-of-staté Plaintiffs with no connection to the State of Mississippi and whose causes of action accrued out of state should be dismissed without prejudice based upon forum non-conveniens.”); Harold’s Auto Parts, Inc. v. Mangialardi, 889 So.2d 493, 495 (Miss.2004) (ordering dismissal without prejudice of plaintiffs claim for failure to meet joinder requirements). On appeal, Creel argues that Canadian National, which was decided nearly two years after her case was transferred, should be applied retroactively to the Jefferson County Circuit Court’s decision to transfer her case to Rankin County.

¶ 9. As an interlocutory order, the transfer of venue merges with the final judgment of the transferee court, and may be considered on direct appeal. See, e.g., Hendler v. United States, 952 F.2d 1364, 1368 (Fed.Cir.1991) (“As a general proposition, when a trial court disposes finally of a case, any interlocutory rulings ‘merge’ with the final judgment.”); Kimball, Raymond & Co. v. Alcorn & Fisher, 45 Miss. 145, 149 (1871) (“An appeal from the final decree opens for consideration all prior interlocutory orders, any way connected with the merits of the final decree.”); J. Michael Fincher, P.C. v. Wright, 141 S.W.3d 255, 260 (Tex.App.2004) (“A trial court’s ruling transferring venue is interlocutory as to the parties, but final as to the transferring court.”).

¶ 10. We apply a deferential standard in our review of joinder and venue determinations and will not reverse unless we find the trial court has abused its discretion. Miss. Farm Bureau Fed’n v. Roberts, 927 So.2d 739, 741 (Miss.2006). The retroactive application of judicially enunciated rules is governed by the United States Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Manning v. State, 929 So.2d 885, 900 (Miss.2006) (“We hold today that the limited retroactive standard set forth in the United States Supreme Court case of Teague v. Lane should be applied to all issues relating to the retroactive application of judicially enunciated rules.”). Teague restricted the retroactive application of judicially enunciated rules on collateral review, but affirmed the necessity of applying such rules retroactively to cases on direct appeal. Teague, 489 U.S. at 304, 109 S.Ct. 1060. This approach is consistent with our retroactive application of rules on direct appeal. See, e.g., Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002) (“Newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation.”); Ales v. Ales, 650 So.2d 482, 486 (Miss.1995) (decision issued while another case was pending review applied retroactively).

¶ 11. Judicially articulated rules regarding severance and transfer will be applied retroactively on appeal. Albert v. Allied Glove Corp., 944 So.2d 1 (Miss.2006). There, we considered the claims of 102 plaintiffs who challenged the dismissal without prejudice of their claims through the retroactive application of the joinder requirements articulated in Armond. The plaintiffs had filed suit in 2000, seeking tort and product liability damages for exposure to asbestos. In 2004, a number of the defendants filed a motion for relief in light our decision in Mangialardi. The trial court granted the defendants’ motion and dismissed the plaintiffs claims because the plaintiff was not a resident of this state and did not allege exposure in this state. We affirmed, finding that the rules articulated in Armond, Mangialardi, and subsequent cases applied retroactively, and that the trial court was therefore correct in dismissing without prejudice misjoined plaintiffs who did not have proper venue in the forum court.

¶ 12. Creel’s case is analogous to Albert. Her claim was filed in 2001, and her case was transferred in 2004, before this Court’s ruling in Armond. Although the Jefferson County trial judge did not have the benefit of Armond and Canadian National when he ordered Creel’s severance and transfer, under Albert, the rule articulated in Canadian National applies to cases on review. See also Amchem Prods., Inc., 912 So.2d at 858 (finding that while trial judge did not have the benefit of Armond and Mangialardi when he denied defendant’s motion, those decisions applied on review). Although the Jefferson County trial judge was not at fault in his ruling, his order transferring venue was error, and Creel’s claim must therefore be dismissed without prejudice in accordance with Canadian National.

¶ 13. Given the importance of our decisions on severance and transfer in the wake of Armond, a short discussion regarding the basis of Creel’s dismissal is warranted. Creel argues that both the Jefferson County Circuit Court and the Rankin County Circuit Court should have allowed her to dismiss her claim and refile under the equitable doctrine of forum non conveniens. However, claims of out-of-state plaintiffs with no connections to Mississippi whose claims accrued outside of the state and who do not meet the joinder requirements of Rule 20 must be dismissed without prejudice as a jurisdictional matter. This distinction between jurisdiction and venue is pivotal. While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised, that is, the place where the suit may or should be heard. 77 Am.Jur.2d Venue § 2 (2006). Thus, at common law, the plea of forum non conveniens “was sustained in cases where the jurisdiction seemed clear but the parties were nonresidents and [a given venue] would have been inconvenient.” Clark v. Luvel Dairy Prods., Inc., 731 So.2d 1098, 1099 (Miss.1998) (citing Edward L. Barrett, Jr., The Doctrine of Forum Non Conveniens, 35 Cal. L.Rev. 380, 387 n. 35 (1947) (emphasis added)).

¶ 14. By contrast, in cases such as Canadian National and Albert, we have declined to exercise jurisdiction over claims that have no relation to this state. Because Mississippi was never a proper jurisdiction for plaintiffs such as Creel and those in Canadian National and Albert, the equitable doctrine of forum non con-veniens, which presupposes two valid jurisdictions, is inapplicable. The legal principle at issue is not whether one valid jurisdiction or the other is the appropriate venue, but whether this state was ever a valid venue in the first place. The issue is therefore jurisdictional, not equitable.

¶ 15. Because the trial court should have dismissed Creel’s case without prejudice, it necessarily follows that the trial court should not have granted summary judgment.

CONCLUSION

¶ 16. Because our decisions in Canadian National and Albert must be applied retroactively, the trial court’s order transferring Creel’s case and its summary judgment are reversed and Creel’s complaint and this case are dismissed without prejudice.

¶ 17. REVERSED AND RENDERED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES, J., NOT PARTICIPATING.


author: ISHEE, J„

text:
    Dennis DOBBS, Appellant. v. STATE of Mississippi, Appellee.
    No. 2004-KA-01638-COA.
    Court of Appeals of Mississippi.
    April 11, 2006.
    Rehearing Denied Aug. 15, 2006.

      Jeffrey J. Hosford, attorney for appellant.
    Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   ISHEE, J„

for the Court.

¶ 1. Dennis Dobbs was convicted in the Clay County Circuit Court of simple assault on a law enforcement officer. He was sentenced as a habitual offender to serve a term of five years in the custody of the Mississippi Department of Corrections. The trial court denied Dobbs’s motion for a new trial, or in the alternative, judgment notwithstanding of the verdict (JNOV). Aggrieved by his conviction and sentence, Dobbs appeals. Finding no error, we affirm.

FACTS

¶ 2. On December 6, 2002, Dobbs was a prisoner on trusty status in the Clay County Jail in West Point. As a prisoner on trusty status, he worked outside the jail picking up garbage for the county sanitation department. When Dobbs returned from work that day, the dispatcher, Beth Luna, believed that he was intoxicated, due to a strong smell of alcohol. Luna called the jailer on duty and requested that Dobbs be checked for alcohol use. Dobbs was tested three times on the Intoxilyzer, and all three tests revealed that he had a blood alcohol concentration above .17.

¶ 3. After the third test was administered, the officers informed Dobbs that he would be required to enter a screening cell, or “drunk tank.” Dobbs protested and argued that the tests were incorrect. He refused to go into the screening cell. Deputy Joe Huffman explained to Dobbs that the rules required him to do so, and eventually Dobbs agreed to enter the cell. When jailer Danny Banks unlocked the door, however, Dobbs refused to comply. Deputy Huffman was then summoned for assistance.

¶ 4. Deputy Huffman approached Dobbs and asked him to go into the screening cell. Dobbs adamantly refused, insisting that he had not been drinking. Deputy Huffman testified that Dobbs’s “demeanor kept getting louder” and that he “kept throwing his hand in the air stating that he was not going to go in there.” According to the testimony of Banks and Deputy Huffman, Dobbs initiated physical confrontation by grabbing the collar of Deputy Huffman’s shirt. A scuffle ensued, as the two men wrestled from one side of the hallway to the other. Deputy Huffman gained control by wrestling Dobbs to the floor. Just as Dobbs appeared to relent, he suddenly flipped Deputy Huffman over his head. Eventually, Banks and Deputy Huffman were able to place Dobbs in the cell.

¶ 5. During the trial, Dobbs testified that Deputy Huffman intentionally struck him in the groin during the scuffle. Dobbs further testified that he threw Deputy Huffman over his head because he was being choked. According to Dobbs, he had to resist Deputy Huffman to avoid being harmed. The jury heard contrary testimony from Banks and Deputy Huffman, both of whom testified that Dobbs initiated the physical confrontation, and that he threw the deputy over his head after pretending to give up the struggle. Both the prosecution and the defense played a partially obstructed videotape of the events in question while examining witnesses, including Dobbs. The jury also heard testimony from Luna, the jail administrator, and several inmates of the Clay County Jail.

¶ 6. On July 22, 2004, Dobbs was convicted on the charge of simple assault on a law enforcement officer. The trial court denied Dobbs’s motion for a new trial or, in the alternative, a JNOV. Aggrieved by the trial court’s decision, Dobbs appeals. He asserts that the trial court erred by failing to properly instruct the jury as to self-defense.

STANDARD OF REVIEW

¶ 7. “In determining whether error lies in the manner in which the jury was instructed, the various requested instructions are not considered in isolation. . Rather, the instructions actually given must be read as a whole.” Sheffield v. State, 844 So.2d 519, 524(¶12) (Miss.Ct.App.2003) (citing Turner v. State, 721 So.2d 642, 648(¶ 21) (Miss.1998)). When read as a whole, if the instructions fairly announce the law of the case and create no injustice, then no reversible error will be found. Johnson v. State, 908 So.2d 758, 764(¶20) (Miss.2005) (citing Williams v. State, 863 So.2d 63, 65(¶ 5) (Miss.Ct.App.2004)).

ISSUE AND ANALYSIS

I. Whether the trial court erred by failing to properly instruct the jury as to self-defense.

¶ 8. During trial, Dobbs testified that he threw Deputy Huffman over his head in self-defense, but that he did not intend to do the deputy any harm. Based on this testimony, Dobbs argues that there was credible evidence in the record to support his claim of self-defense. Consequently, Dobbs argues that the trial court denied him a fair trial when it declined to give the jury his requested instructions on self-defense, labeled D-2, D-3, and D-5.

¶ 9. The State argues that the trial court properly refused the jury instructions requested by Dobbs because they were repetitive. We agree. Although a defendant is entitled to jury instructions which present his theory of the case, “this entitlement is limited to instructions that correctly state the law, are not covered fairly elsewhere in the instructions, and have a foundation in the evidence.” Sproles v. State, 815 So.2d 451, 454(¶ 9) (Miss.Ct.App.2002) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). Furthermore, “the trial court is not required to grant several instructions on the same question in different verbiage.” Sproles, 815 So.2d at 454(¶ 9) (citing Ragan v. State, 318 So.2d 879, 882 (Miss.1975)).

¶ 10. Requested jury instruction D-2 read as follows: “[t]he Court instructs the jury that if you find that the Defendant, Denis [sic] Dobbs, on or about December [sic] 2002, acted in necessary self defense from Deputy Joe Huffman, then you SHALL FIND THE DEFENDANT NOT GUILTY of Simple Assault of a Law Enforcement Officer.” The State argues that this instruction was adequately covered by instruction S-2, which was granted. Instruction S-2 stated in part that Dobbs should be found guilty as charged if the jury finds that he “unlawfully, willfully, feloniously, purposely, and knowingly [caused] or [attempted] to cause bodily injury to Deputy Joe Huffman ... without authority of law and not in necessary self defense.” We find that the limited subject matter of instruction D-2 was adequately covered by S-2. Thus, the trial court did not err in denying instruction D-2.

¶ 11. Dobbs also argues that the trial court erred in refusing to grant instruction D-3. Requested jury instruction D-3 read as follows:

Dennis Dobbs has been charged with the offense of Simple Assault upon a Law Enforcement Officer.
If you find from the evidence in this case the State FAILED to prove in this case BEYOND A REASONABLE DOUBT that:
1. Dennis Dobbs, on or about December 6, 2002 in Clay County;
2. Unlawfully, willfully, purposely and knowingly cause or attempt to cause bodily injury to Joe Huffman;
3. By repeatedly grabbing Joe Huffman with his hands and wrestling with him;
4. Joe Huffman was a law enforcement office [sic];
5. Joe Huffman was acting within the scope of his duty as a law enforcement officer, and further;
6. Dennis Dobbs was not acting in self defense;
then you shall find the defendant NOT GUILTY of the Charge of Simple Assault on a Law Enforcement Officer.

The trial court found that this instruction was repetitive to instruction D-l, which was granted. Instruction D-l read as follows:

The Court instructs the Jury that if you find that the STATE failed to prove beyond a REASONABLE DOUBT that the Defendant, Den[n]is Dobbs, did on or about December 6th, 2002, did unlawfully, willfully, purposely and knowingly cause or attempt to cause bodily injury to Deputy Joe Huffman, a law enforcement officer with the Clay County Sheriffs Department, at a time when the said Deputy Joe Huffman was acting with the scope of his official duties and office, by repeatedly grabbing the said Deputy Joe Huffman with his hands and wrestling with him, without authority of law not in necessary self defense, then you SHALL FIND THE DEFENDANT NOT GUILTY of Simple Assault of a Law Enforcement Officer.

We fail to see any meaningful difference between instruction D-l, which was granted by the trial court, and instruction D-2. Accordingly, we find that the trial court did not err in refusing to grant instruction D-2.

¶ 12. Finally, Dobbs argues that the trial court erred in refusing to grant instruction D-5, which read as follows:

The Court instructs the Jury that if you believe from the evidence in this cause that Deputy Joe Huffman committed an unprovoked or unnecessary assault or attack upon the Defendant, Dennis Dobbs, while giving a Command to Mr. Dobbs a State Inmate, then in the event the defendant had the right to resist said unprovoked or unnecessary attack, and if you further believe the defendant’s use of this force was not more than reasonably necessary for his own protection and that the defendant’s conduct did not cause the assault, then you should find the defendant NOT GUILTY.

The trial court refused to grant instruction D-5, holding that the jury was properly instructed by instructions S-4 and D-4. Instruction D-4 required the jurors to render a verdict of not guilty if they determined that Deputy Huffman “used excessive force that was not reasonably necessary to compel Dennis Dobbs to comply with his order.” Instruction S-4 stated in part that “an officer may. use such force as is reasonably necessary” to compel an inmate to comply with his lawful order, but he may not use excessive force to accomplish this purpose. S-4 further instructed the jurors that if they found “beyond a reasonable doubt that Joe Huffman was using only such force as was reasonably necessary ... then Joe Huffman was justified in his use of that force and the defendant cannot claim a right to resist that force.”

¶ 13. We find that the jury was properly instructed by instructions S-4 and D-4, which effectively conveyed the message that Deputy Huffman’s actions were not justifiable if he used excessive force. If the jurors determined that Deputy Huffman used excessive force, then they were required to render a verdict of not guilty. Although instruction D-5 does not use the language “excessive force,” it does ask the jurors to determine whether Deputy Huffman’s actions were “unnecessary.” The trial court was not required to grant several instructions that used different wording to address the same issue, i.e., whether Dobbs was subjected to excessive, or unnecessary force. Therefore, this issue is without merit.

¶ 14. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT OF CONVICTION OF SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.

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


author: KING, C.J., for the Court.

text:
    OFFICE OF the GOVERNOR DIVISION OF MEDICAID, The State of Mississippi and Warren A. Jones, M.D., Executive Director, Appellants v. Pauline JOHNSON, Appellee.
    No. 2005-SA-00588-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.
    Rehearing Denied March 6, 2007.

      Office of the Attorney General by T. Richard Roberson, William Harris Moun-ger, attorneys for appellants.
    Joseph M. Stinson, Tylertown, attorney for appellee.
    Before KING, C.J., SOUTHWICK and IRVING, JJ.
   KING, C.J., for the Court.

¶ 1. Pauline Johnson was denied Medicaid nursing home benefits by the Mississippi Division of Medicaid. Johnson sought judicial review in the Walthall County Chancery Court, which reversed Medicaid’s decision. Medicaid now appeals to this Court, raising both procedural and substantive legal issues. However, because we find that venue was improper in the Walthall County Chancery Court, we decline to address the substantive legal issues raised by Medicaid.

¶ 2. On December 10, 2004, Johnson filed a notice of appeal in the Walthall County Chancery Court. On December 14, 2004, Medicaid filed a motion for change of venue, asserting that because the final decision regarding Johnson’s Medicaid eligibility was rendered by the Executive Director for the Division of Medicaid whose principal office is located in Hinds County, venue was proper only in Hinds County. The chancery court denied Medicaid’s motion. In the court’s order reversing Medicaid’s decision, the court stated that it had jurisdiction over the appeal by virtue of Mississippi Code Annotated Section 43-13-116 (Rev.2004) “and other related statutes.”

¶ 3. Mississippi Code Annotated Section 43-13-116 governs Medicaid benefit eligibility hearings and other issues concerning Medicaid. Subsection (3)(e)(xvii) provides that after an unsuccessful eligibility hearing, “[t]he claimant is entitled to seek judicial review in a court of proper jurisdiction.” Medicaid agreed that the Walthall County Chancery Court had jurisdiction over the matter, but disagreed as to venue. Venue for all cases is governed by statute. Board of Trustees v. Slyke, 510 So.2d 490, 492 (Miss.1987) (citing M.R.C.P. 82(b)). Mississippi Code Annotated Section 11-5-1 (Rev.2004) provides that chancery court venue for all matters other than probate matters, cases involving real or personal property, or cases concerning executors, administrators, and guardians is “in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found.” It is undisputed that Medicaid does not have an office in Walthall County.

¶ 4. When a specific venue statute exists it controls over general venue statutes. Guice v. Miss. Life Ins. Co., 836 So.2d 756, 759(¶ 13) (Miss.2003). Unlike Medicaid, some state boards and agencies have specific jurisdiction and venue statues. Mississippi Code Annotated Section 75-15-31(10) (Rev.2000), for example, requires that appeals from the Mississippi Board of Nursing be brought in the chancery court of the county of the licensee’s residence. Taylor v. Miss. Bd. of Nursing, 863 So.2d 1015, 1017(¶6) (Miss.Ct. App.2004). The State Board of Public Contractors has a similar statute requiring appeals from the Board to be heard in the chancery court of the county in which the appellant resides. Miss.Code Ann. § 31-3-23 (Rev.2005). Since Medicaid has no such specific statute, Mississippi Code Annotated Section 11-5-1, the general chancery court venue statute, must apply.

¶ 5. It is well settled that for cases in which the defendant is a state agency, venue is proper in Hinds County, the seat of state government. Moore v. Bell Chevrolet-Pontiac-Buick-GM C, LLC, 864 So.2d 939, 945 (Miss.2004). Regarding venue, the supreme court has also held, “the right to be sued in the county of ones residence is a valuable right, not a mere technicality. Indeed, a chancery court has no jurisdiction over a defendant who neither resides nor is found in the county where the suit is filed, absent waiver.” Id. When a court has proper jurisdiction but not venue, the appropriate action is to transfer the case to a court where venue is proper. Miss.Code Ann. § 11-11-17 (Rev.2004). Accordingly, the Walthall County Chancery Court should have transferred Johnson’s appeal to the Hinds County Chancery Court.

¶ 6. THE JUDGMENT OF THE WALTHALL COUNTY CHANCERY COURT IS REVERSED AND THIS CASE IS REMANDED TO THE WALT-HALL COUNTY CHANCERY COURT FOR TRANSFER TO THE HINDS COUNTY CHANCERY COURT. ALL COSTS OF APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: BARNES, J.,

text:
    CHECK CASHERS EXPRESS, INC., Title Loans Express, Inc. and Robert J. Pope, Jr., Appellants, v. Boyce CROWELL, Appellee.
    No. 2005-CA-01631-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.

      Robert Binnion Andrews, Port Gibson, attorney for appellants.
    James Andrew Yelton, Batesville, attorney for appellee.
    Before LEE, P.J., IRVING, BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Check Cashers Express, Inc., Title Loans Express, Inc. and Robert J. Pope, Jr. (collectively “Tenants”) appeal the judgment of the Chancery Court of Panola County which found them hable for damages to property leased from Boyce Cro-well. On appeal, Tenants argue that the partition walls in the building at issue were not fixtures that became part of the realty, but were personal property, which Tenants had a right to dismantle and take upon vacating the premises. Additionally, Tenants argue that the trial court erred in awarding compensatory damages for the removal of the interior walls and an air conditioning unit and in awarding attorney’s fees. We find no reversible error and affirm the chancery court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. Boyce Crowell filed a complaint against Tenants in the Panola County Chancery Court on August 2, 2004, claiming breach of contract on a lease and conversion. This lawsuit arose when Tenants dismantled walls and interior doors and windows from within the leased building in Batesville, Mississippi when the lease expired, contrary to specific provisions in the lease and the expressed request of the current landlord. Tenants also dismantled and took an air conditioning unit which they had bought and installed. After trial, a judgment was entered against Tenants in the amount of $23,572.67.

¶ 3. In June 1999, Tenants had originally negotiated and signed a five-year lease with David Bailey, the owner of the premises. In March 2001, Crowell purchased the building at issue from Bailey. Crowell had thus been Tenants’ landlord since that time, under the original lease agreement. No additional lease provisions were added nor was the original lease altered. Key provisions in the lease agreement are contained in paragraph 7 (tenant shall “refrain and forbid any other person from destroying, defacing, damaging or removing any part of the premises. Tenant shall not make any alternations[alterations] to the premises ... without the prior written consent of the Landlord”), paragraph 10 (“Landlord will maintain roof only”), paragraph 12 (“Upon termination of this lease, Tenant agrees to return the premises to the Landlord in good repair ... except for ordinary wear and tear”), and paragraph 19 (“This Lease supersedes any oral or written agreements regarding these premises”). The lease expired July 1, 2004.

¶ 4. Crowell did not renew Tenants’ lease. Crowell and Tenants were in the same businesses-the pay-day/check cashing loan and title loan business. Tenants claim that they had an oral agreement with the original owner, Bailey, whereby they received permission, around the time the lease was signed in 1999, to construct partition walls within the premises. Also, Bailey was told that these walls would be removed when Tenants moved out. The walls are required by state law to keep check cashing businesses separate from title loan businesses. Tenants, upon signing the lease, proceeded to hire a contractor to install the walls. The contractor was aware that the walls would be removed eventually, so the walls were supposedly installed in as “soft” a manner as was possible while still being safe. He testified that this entailed putting nails in the floor and walls, and screws in the ceiling. The owner of Check Cashers testified that this was standard procedure in its regular course of business when moving into a new building. Specifically, three full-scale interior walls from floor to ceiling were installed with several partition walls that did not reach the ceiling, as well as interior windows, doors and a long counter-top. A monitoring alarm system was installed, as was electrical wiring in the interior walls.

¶ 5. When Crowell purchased the building from Bailey in March 2001, these alterations were already completed. Additionally, Tenants claimed that when the building’s air conditioning broke, Crowell did not replace it, so Tenants purchased and installed a new unit themselves. In May of 2004, when Tenants’ lease was not renewed, Crowell’s lawyer sent a letter to Tenants specifically requesting them not to remove any “improvements or attachments to the premises, including the walls, doors, and windows,” without consulting either Crowell or his lawyer. It is undisputed that Crowell intended to open a check cashing and title loan business similar to Tenants’ immediately upon the expiration of the lease on July 1, 2004.

¶ 6. This dispute arose when Tenants vacated the premises a few months prior to the expiration of the lease, while continuing to make lease payments, and proceeded to move their business to another location in Batesville. At this time, Tenants- removed and/or destroyed all of the interior walls, doors, windows, lights, security system, and the new air conditioning unit, without first either informing or asking permission from Crowell. Tenants justified these actions because they considered these items “trade fixtures” and thus not a part of the realty, but personal property. Indisputably, Tenants offered to sell these interior “trade fixtures” to Crowell for his new business. When Crowell declined, the owner of Check Cashers instructed a contractor to tear out all of the interior walls, doors, windows and counter tops constructed.

¶ 7. Once the building was fully vacated by Tenants, Crowell proceeded to repair and remodel the building for his own new business. He claimed that in removing the walls and other items, Tenants damaged the walls, ceiling, carpet, tile and electrical system of the premises. Further, Tenants had reinstalled the inoperable air conditioning unit in place of the new one they originally purchased, but took, upon expiration of the lease.

¶ 8. On August 12, 2005, after a bench trial, the chancellor entered an order of judgment against Tenants for $28,572.67, including $5,898.17 in attorney’s fees. From this judgment, Tenants perfected this appeal.

STANDARD OF REVIEW

¶ 9. The standard of review for a chancellor’s determinations is well established. “A chancellor’s findings will not be disturbed unless he was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Ferrara v. Walters, 919 So.2d 876, 881(¶8) (Miss.2005) (citations omitted). Otherwise, this Court has no authority to disturb the chancellor’s factual conclusions when supported by substantial evidence. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). A chancellor’s conclusions of law are reviewed de novo. Ferrara, 919 So.2d at 881(¶ 8) (citing Weissinger v. Simpson, 861 So.2d 984, 987(¶11) (Miss.2003); In re Carney, 758 So.2d 1017, 1019(¶8) (Miss.2000)).

DISCUSSION

1. Whether the trial court erred in finding the partition walls were fixtures that became part of the realty.

¶ 10. Tenants argue that the chancery court applied an incorrect standard of law in deeming, in its findings of fact and conclusions of law, that the partition walls were fixtures. Additionally, Tenants state the chancellor’s ruling was not supported by substantial evidence. The basis of this argument is the unwritten agreement the Tenants claimed they had with the original owner, Bailey, that Tenants had permission to add and remove the walls and other items. Thus, Bailey had knowledge that the intent of Tenants was to put in temporary walls which would not be strongly affixed to the building and thereby not fixtures.

¶ 11. A “fixture” is defined as “[a]n article in the nature of personal property which has been so annexed to the realty that it is regarded as a part of the real property.” Black’s Law Dictionary 638 (6th ed.1991). “A thing is deemed to be affixed to real property when it is ... permanently attached to what is- thus permanent, as by means of cement, plaster, nails, bolts, or screws.” Id. To determine if the item is a fixture or personal property, the following must be taken into account:

its nature, mode of attachment, purpose for which used, and the relation of the party making the annexation, and other attending circumstances indicating the intention to make it a temporary attachment or a permanent accession to the realty.... In some instances the intention to make the article a fixture may clearly appear from the mode of the attachment alone, as where a removal cannot be made without serious injury to the property by the act of severance.

Weathersby v. Sleeper, 42 Miss. 732, 741-42 (1869).

¶ 12. The general rule in Mississippi has long been that once a tenant has affixed an item to the premises, it becomes part of the realty. Simmons v. Bank of Miss., 593 So.2d 40, 42 (Miss.1992); Stillman v. Hamer, 8 Miss. (7 Howard) 421, 422 (1843). Several well-established ex ceptions to this general rule have been articulated. When applied to landlords and tenants, especially in a commercial setting when tenants have built structures on the land during their tenancy, the general rule is applied with leniency in favor of the tenants. Simmons, 593 So.2d at 42 (citing Waldauer v. Parks, 141 Miss. 617, 625, 106 So. 881, 882 (1926)). Furthermore, “trade fixtures,” those placed on the premises by the tenant for the purpose of trade or manufacture and not intended to irrevocably become a part of the realty, are generally considered personal property of the tenant/lessee. Wright v. Rub-a-Dub Car Wash, Inc., 740 So.2d 891, 896(¶ 13) (Miss.1999) (citing Stillman, 8 Miss. (7 Howard) at 422).

¶ 13. Tenants maintain that the exceptions to the general rule apply here, and the materials removed were personal property that they had every right to dismantle. Tenants argue that the items removed — walls, partition walls, light fixtures, built-in counters, windows, and an air conditioning unit — are “trade fixtures,” and that Tenants gave notice to the original landlord that it intended to remove these items upon the termination of its lease.

¶ 14. However, the cases cited by Tenants regarding the exceptions to the general rule of fixtures do not address the following distinguishing factors found in our case: first, there was a lease expressly prohibiting alterations or damage and removal of items on the premises, and no written agreement to the contrary, regardless of whether Tenants had an oral side-agreement with the initial landlord Bailey, and second, when the walls and other items were removed by Tenants, there wás substantial damage to the premises, regardless of whether Tenants “intended” the walls to be temporary. The Simmons court notes that in a lessor-lessee context, the parties may agree regarding removal of improvements and their agreement will be enforced by the courts. Simmons, 593 So.2d at 42. Thus, when there is a lease agreement, a court must look to the provisions of the lease agreement to determine the rights and duties of the parties.

¶ 15. Tenants allegedly had permission, albeit oral, with the first landlord, Bailey, to construct the partition walls and other items, but they did not have permission from the second landlord, Crowell, to remove the walls. In fact, Tenants were expressly prohibited from removing their additions by the May of 2004 letter from Crowell’s lawyer. Also, the lease states the tenant shall “refrain ... from destroying, defacing, damaging or removing any part of the premises.” The tenant is not allowed to “make any alterations to the premises ... without the prior written consent of Landlord.” Even if there was an oral agreement with Bailey allowing Tenants to remove the walls, Bailey was not the landlord at the time this dispute arose, and Tenants did not obtain the consent of the current landlord, Crowell, to dismantle the walls. Finally, the lease states it “supercedes any oral or written agreements regarding these premises.” Thus, we affirm the chancery court’s determination that Tenants breached their lease agreement with Crowell.

¶ 16. Further, in removing the walls and other improvements, Tenants damaged the building’s walls, ceiling, and flooring where the improvements were attached. This damage supports the factual findings that the improvements were of a permanent nature, and thereby “fixtures.” The mode of attachment alone can be the sole factor in determining whether an item is a fixture, especially when removal would cause serious damage to the surrounding permanent property. Weathersby, 42 Miss, at 742. In our case, the evidence introduced at trial shows damage from the removal of the additions. Some sections of the tile flooring were missing where the walls connected to it, exposing the building’s concrete foundation. The carpet was ripped and pulled out in places exposing concrete. Wires dangled from the ceiling, and the ceiling contained holes where electrical wires had been placed. Tenants minimize this damage, but concede that “minor damage” occurred during removal of the items. We agree with the chancery court that the damage was more substantial than “minor.” Damage during removal of the so-called “temporary” walls was to such a great extent that we consider their attachment permanent. The items removed, including the partition walls, were fixtures.

¶ 17. We find that the chancellor did not apply an incorrect standard of law. There was substantial evidence for the chancellor to rule that the partition walls were fixtures and thus became part of the realty. This issue is without merit.

2. Whether the trial court erred in awarding damages for breach of contract based on removal of the partition walls and air conditioning unit.

¶ 18. Tenants state that they upheld their lease obligation to leave the property “in good repair ... except for ordinary wear and tear.” They argue the damage done to the building was minor. Because the new air conditioner was removed from the property without damage, Tenants maintain it was their personal property and not a permanent fixture. Further, they argue that Crowell did not mitigate his damages by repairing the damage, but instead replaced materials, thereby getting his building “remodeled” at the expense of his competitor, Check Cashers. Finally, Tenants contend that the award of attorney’s fees, in lieu of punitive damages, was unwarranted.

¶ 19. The measure of damages for breach of contract and property damage can be either the reasonable cost of replacement or repairs, or diminution in value. Bell v. First Columbus Nat’l Bank, 493 So.2d 964, 970 (Miss.1986). The plaintiff must prove either of these measures with a reasonable certainty and the damage award must not unjustly enrich the plaintiff. Id.

¶ 20. The chancellor awarded Crowell $17,679.50 in compensatory damages and $5,893.17 in attorney’s fees. We find the amounts awarded by the chancellor for compensatory damages to have been proved with reasonable certainty. Admittedly, some of the charges for repairs and replacements claimed by Crowell were disallowed by the chancellor in his findings of fact and conclusions of law. The chancellor found the damages were mitigated because Mr. and Mrs. Crowell completed some of the manual repair work on the building themselves.

¶ 21. Additionally, central air conditioning units have traditionally been categorized as fixtures, as have built-in counters, and may not be removed and considered personal property in a landlord-tenant situation. See In re Cooperstein, 7 B.R. 618, 622 (Bkrtcy.N.Y.1980) (citing The Law of Personal Property 531-53 (3rd ed.1975)); Crumbley Grocery Co. v. Ferguson, 159 Miss. 861, 869-70,132 So. 737, 739 (1931). When the air conditioning unit broke, the landlord Crowell was not under a legal obligation, according to the lease with Tenants, to replace it. The lease spoke of the landlord’s maintaining the roof only and was silent as to the air conditioning system. The chancery court properly found that the air conditioning unit had become a fixture; therefore, Tenants did not have the right to remove the working air conditioner upon their departure, even though they purchased it, and replace it with the old, inoperable unit. The cost of an air conditioning system was properly included in the compensatory damages. Thus, we cannot find that the chancellor erred in his computation as to compensatory damages.

¶ 22. As for attorney’s fees, the chancellor awarded one-third the total compensatory damages for “two separate and distinct reasons”: a contractual provision for attorneys’s fees located in paragraph 13 of the lease and his finding that “it is no question that the [Tenants] acted with malice and therefore the attorney’s fees are in the nature of punitive damages.” Attorney’s fees may be awarded in a contract case where provided for by the contract, by statutory authority, or where “punitive damages are also proper.” Aqua-Culture Tech., Ltd. v. Holly, 677 So.2d 171, 184 (Miss.1996) (quoting Greenlee v. Mitchell, 607 So.2d 97, 108 (Miss.1992)). Where the conduct of the party “was of a nature such as to make the awarding of punitive damages appropriate,” the “actual awarding of punitive damages is not a prerequisite for the awarding of attorney fees.” The “trial judge may validly find that ... the plaintiff should not have to suffer the expense of litigation forced upon it by the defendant’s conduct, and therefore determine that attorney fees should be awarded.” Id. at 184-85; see also Walker v. Murphree, 122, So.2d 1277, 1283(¶ 25) (Miss.Ct.App.1998) (quoting Aqua-Culture, 611 So.2d at 185) (“attorney fees may be awarded in cases in which the awarding of punitive damages is proper”). We find that while the chancellor erred in relying on the lease provision as authority for attorney’s fees in this case, it was proper for the chancellor to award attorney’s fees in lieu of punitive damages.

¶23. Paragraph thirteen of the lease requires the Tenants “to pay any costs and attorney fees incurred by Landlord in defending any lawsuit or other action brought in regard to ... injuries [to persons] or damage [‘to property caused by Tenant or any other person on the premises with Tenant’s permission.’]” (Emphasis added). In this case, the landlord was prosecuting rather than defending the action; therefore, the plain terms of the lease do not authorize an award of attorney’s fees.

¶ 24. The chancellor, as finder of fact, however, determined that Tenants acted “with malice” in their conduct regarding the premises. This finding is sufficient to support the award of attorney’s fees in lieu of punitive damages in the case before us. For punitive damages to be awarded in a contractual setting, the plaintiff must prove by a preponderance of evidence that the breach of contract was either caused by “an intentional wrong or that a defendant acted maliciously or with reckless disregard of the plaintiffs rights.” Hamilton v. Hopkins, 834 So.2d 695, 703(¶ 26) (Miss.2003) (citations omitted). The chancellor’s finding of malice on the part of Tenants is supported by the record and is a sufficient basis for the award of attorney’s fees in lieu of punitive damages. This issue is without merit.

3. Whether to grant Crowell’s motion for attorney’s fees incurred on this appeal.

¶ 25. At the end of Crowell’s brief, he moves this Court to award attorney’s fees incurred in response to Tenant’s appeal, arguing that he is a “forced participant in the appellate process.” We deny that request. Crowell admits that he can find no Mississippi case law supporting his proposition that attorney’s fees awarded at the trial level for malicious conduct should also be awarded on appeal. We have authority to award damages, including attorney’s fees, for frivolous appeals pursuant to M.R.A.P. 38. In this case, while the chancellor found the conduct of the Tenants in defacing the leased property justified punitive damages, which were awarded as attorney’s fees, we find nothing frivolous in Tenants’ appeal. Crowell does cite authority, Knight v. McCain, 581 So.2d 590, 597 (Miss.1988), for the proposition that affirming an award of contractual attorney’s fees entitles the appellee to an attorney’s fee under the contract on appeal. Id. We have determined, however, that the contractual provision at issue does not cover the circumstances of this case. Accordingly, Crowell’s request for attorney’s fees for the appeal of this case is denied.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF PANOLA COUNTY IS AFFIRMED. APPEL-LEE’S MOTION FOR ATTORNEY’S FEES ON APPEAL IS DENIED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: IRVING, J.,

text:
    Viola DANIELS, Appellant v. Willie B. DANIELS, Appellee.
    No. 2005-CA-01318-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.

      S. Christopher Farris, attorney for appellant.
    Leigh Kennington Berry, Columbia, attorney for appellee.
    Before KING, C.J., IRVING, and GRIFFIS, JJ.
   IRVING, J.,

for the Court.

¶ 1. Viola Daniels and Willie B. Daniels agreed to an irreconcilable differences divorce and submitted several contested issues to the Marion County Chancery Court for adjudication. Specifically, the court made an equitable division of several contested pieces of property and gave Viola both periodic and rehabilitative alimony. Aggrieved, Viola appeals and asserts that the court erred in both its division of the contested property and its award of alimony.

¶2. Finding error, we reverse and remand for further proceedings consistent with this opinion.

FACTS

¶ 3. Viola and Willie were married in 1974 and had six children, five of whom are living and are over the age of twenty-one, and one of whom is deceased. Throughout the course of their marriage, other than a seven-year period from 1987 to 1994, Willie was gainfully employed. In 1985, Willie was injured when a car battery blew up, damaging his eyes. In 1994, Willie received $198,000 as a result of a settlement for his injuries. Viola was also gainfully employed throughout the course of the marriage, although she testified that she was injured in a car accident in 2001 and that she has had trouble maintaining gainful employment since that time.

¶ 4. Additional facts, if necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Equitable Division

¶ 5. In making an equitable division of the marital property, the chancellor first determined which assets were properly addressed as marital property. After stating that he had considered the factors found in Ferguson v. Ferguson, 639 So.2d 921, 928-29 (Miss.1994), the chancellor proceeded to divide the marital assets. No discussion of the factors is found in the record, and no explanation of how the chancellor found as to any factor, or how those factors impacted the chancellor’s award of marital property, is included in the court’s ruling.

¶ 6. Viola urges us to find that the chancellor erred in making inadequate findings of fact and conclusions of law in support of his division of the property. After reviewing the record, we agree that the chancellor failed to make adequate findings.

¶ 7. In Owen v. Owen, 928 So.2d 156 (Miss.2006), the Mississippi Supreme Court addressed a similar situation. The court noted that the chancellor in that case “stated that, after having reviewed the Ferguson factors, ‘as a matter of fact that Kenneth ... [had] been the primary financial contributor to the assets of the marriage and that he should receive a greater percentage of any distribution of the marital assets.’ ” Id. at 158(¶ 2) (quoting Owen v. Owen, 798 So.2d 394, 397(¶4) (Miss.2001) (Owen I)). The court summarized its holding in Owen I:

The chancellor, however, did not specifically address the applicable Ferguson factors. Margaret appealed ... this Court found that ‘the chancellor erred in failing to specifically address all applicable Ferguson factors.... ’ The Court reversed the chancellor’s judgment and remanded the case to the chancery court to provide a record of its findings of fact and conclusions of law concerning each of the applicable Ferguson factors.

Id. at 158(¶ 4) (citations omitted).

¶ 8. As in Owen I, the chancellor here failed to adequately address the applicable Ferguson factors. In fact, the chancellor here declined to provide an analysis of any of the Ferguson factors, let alone all of the applicable factors. Therefore, we reverse and remand for further findings regarding the applicable Ferguson factors and how those findings support the chancellor’s division of the marital property.

2. Alimony

¶ 9. The chancellor stated in his order that he had addressed the relevant factors found in Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147 (1955) and Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). Specifically, the chancellor noted that there was a

demonstrated substantial disparity of Viola’s earning capacity compared to that of Willie ($8,000.00 for Viola in 1994, $41,000.00 for Willie in 1994). Theirs has been a long marriage. Viola has contributed financially as well as bearing six children and assisting in the rearing of five of those children. Evidence shows Viola’s inability to meet her reasonable living needs since the separation and the lack of any support contribution by Willie since that separation. The totality of the circumstances lead the Court to the conclusion that Viola is entitled to an award of alimony, both for rehabilitative purposes and periodic for supplemental support for the future.
Accordingly, the Court awards unto Viola a lump sum award for rehabilitative purposes of $12,000.00, which sum Willie may pay, at his election, by the sum of $500.00 per month. Further, Viola is awarded periodic continuing alimony for support purposes in the amount of $300.00 per month; and in the event Willie elects to pay the lump sum award in the stated monthly installments then, in such event, the payment of monthly alimony for support purposes shall commence upon the payment in full of the lump sum award.

¶ 10. In Lauro v. Lauro, 847 So.2d 843, 848^19(¶13) (Miss.2003), the Mississippi Supreme Court explained that “[a]ll property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together.” Therefore, because we are remanding to the chancery court for an analysis of the applicable Ferguson factors and how those factors affect equitable distribution, we also remand this issue. If, on remand, the court’s analysis of the relevant Ferguson factors yields a different equitable division of the marital property, the court’s rendering of alimony will also have to be reconsidered. “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Id. at 849(¶ 13) (quoting Ferguson, 639 So.2d at 929). We also urge the chancellor to make more detailed findings regarding alimony on remand. As with the equitable division factors, the chancellor failed to thoroughly apply the relevant alimony factors in its findings of fact and conclusions of law. On remand, we urge the court to remedy this deficiency.

If 11. THE JUDGMENT OF THE CHANCERY COURT OF MARION COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., LEE, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MYERS, P.J., DISSENTS WITHOUT WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.

      . The chancellor simply said that he had "taken into consideration the dictates of the cases of Brabham and Armstrong. ...” No citation was given for either case. Therefore, we have assumed, based on subject matter, that the two cases cited above are the cases to which the chancellor was referring.