text:
    Johnathan MOODY a/k/a Jonathan Earl Moody a/k/a Tojo, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CA-01732-COA.
    Court of Appeals of Mississippi.
    June 19, 2007.

      Sylvia S. Owen, New Albany, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J., for the Court.

¶ 1. Johnathan Moody appeals the Lowndes County Circuit Court’s decision denying his post-conviction relief motion. Moody raises the following issues on appeal: (1) whether the trial court erred in accepting Moody’s guilty plea, (2) whether the trial court improperly considered Moody’s additional conspiracy charges during the sentencing phase, and (3) whether the trial court imposed a disproportionate and excessive sentence. Finding no error in the trial court’s decision, we affirm.

FACTS

¶ 2. On May 9, 2003, Johnathan Moody was indicted in the Lowndes County Circuit Court on one count sale of cocaine, in violation of Mississippi Code Annotated Section 41-29-139 (Rev.2005). On February 17, 2005, the trial court held a plea hearing. After informing Moody of all the rights he waived as a result of his guilty plea, the court accepted Moody’s plea and deferred sentencing until May 10, 2005. At the conclusion of the plea hearing, the State informed the judge that Moody’s plea would be an open plea, but that the State had agreed to retire three of Moody’s pending conspiracy counts to the file.

¶ 3. At the sentencing hearing, the State renewed its motion to retire Moody’s three conspiracy charges to the file. The court granted the motion and heard from Moody’s mitigation witnesses. At the conclusion of the witnesses’ testimonies, the court sentenced Moody to serve fourteen years in the custody of the Mississippi Department of Corrections and five years of post-release supervision. On July 14, 2005, Moody filed his motion for post-conviction relief. The circuit court summarily dismissed the motion and Moody subsequently filed this current appeal.

STANDARD OF REVIEW

¶ 4. This Court reviews denials of post-conviction relief motions under a clearly erroneous standard. Mosley v. State, 941 So.2d 877, 878(¶ 5) (Miss.Ct.App.2006). The trial court’s factual findings will not be disturbed unless they are proven to be clearly erroneous. Rankins v. State, 839 So.2d 581, 582(¶ 3) (Miss.Ct.App.2003). However, issues of law are reviewed de novo. Miller v. State, 910 So.2d 56, 58(¶ 4) (Miss.Ct.App.2005) (citing Pace v. State, 770 So.2d 1052(¶ 4)(Miss.Ct.App.2000)).

ANALYSIS

I. Whether the trial court erred in accepting Moody’s guilty plea.

¶ 5. The appellate court will not disturb a trial court’s finding that a guilty plea was voluntarily entered unless the trial court’s findings are clearly erroneous. White v. State, 921 So.2d 402, 404-05(¶ 7) (Miss.Ct.App.2006). The defendant bears the burden of proving his plea was involuntary and this must be proven by a preponderance of the evidence. Hargett v. State, 864 So.2d 283, 284(¶ 4) (Miss.Ct.App.2003). A defendant’s plea is considered voluntary and intelligent if the defendant is advised about the nature of the charges against him, as well as the consequences of entering the guilty plea. Roby v. State, 861 So.2d 368, 369-70(¶ 4) (Miss.Ct.App.2003).

¶ 6. Moody asserts that his plea was not knowingly entered because he was not informed of the plea’s nature until the entry of the guilty plea was already in progress. Moody says he was told his plea would be pursuant to a plea agreement, as opposed to an open plea. An open plea is one in which the State does not make any recommendation regarding sentencing. McNabb v. State, 915 So.2d 478, 480(¶ 9) (Miss.Ct.App.2005).

¶ 7. The trial court found Moody’s guilty plea was knowingly and voluntarily entered. Despite Moody’s assertions, this Court is satisfied that the record indicates Moody was advised about the nature of the charges against him, including the rights which he surrendered by entering his guilty plea. Moody’s signed and sworn guilty plea petition indicated his plea would be open. Even if Moody believed he had entered an agreement with the State regarding his sentence, the plea hearing transcript, as well as the guilty plea petition, clearly stated the trial court was not bound by any recommendations of the district attorney.

¶ 8. After reviewing the guilty plea petition and the plea hearing transcript, this Court is satisfied that Moody received sufficient notice that his plea was to be an open plea. The record before this Court contains no evidence that the trial court abused its discretion in accepting Moody’s guilty plea. There is no merit to this claim.

II. Whether the trial court improperly considered Moody’s additional conspiracy charges during the sentencing hearing.

¶ 9. During the guilty plea hearing, the State requested the court to retire Moody’s three additional conspiracy charges to the file. The State made no further recommendations about sentencing due to the open guilty plea. Moody alleges that the State should not have been allowed to comment on these additional charges because they were not included in the pre-sentencing report and, therefore, improperly considered by the judge as aggravating factors during sentencing.

¶ 10. Pre-sentence reports, provided for in Mississippi Code Annotated Section 47-7-9 (Rev.2004), are used at the trial court’s discretion and are not mandatory. Roberson v. State, 595 So.2d 1310, 1315 (Miss.1992). The trial court order noted that the pre-sentencing investigation report only served as an aid in the judge’s decision making and the reports do not always contain all the information relied on by the judge.

¶ 11. Even if the trial court considered the additional conspiracy charges as aggravating factors, Moody’s argument still has no merit. In Vaughn v. State, 964 So.2d 509, 511(1110), 2006 WL 4844114 (Miss.Ct.App.2006), we rejected -the defendant’s argument that the trial court erred by allowing the State to comment on retired charges during the sentencing hearing. The trial court went further by allowing the State to describe witness testimony regarding the specifics of the unrelated charge. Id. at 510(¶ 4). The Court held that the trial judge has broad discretion in the evidence he may consider during a sentencing hearing. Id. at 512(¶ 14).

¶ 12. In this case, the judge made no inquiry regarding Moody’s conspiracy charges and the State only commented on the charges by way of acknowledging that the State would not pursue the charges. There is no indication that the court considered the conspiracy charges as aggravating factors during the sentencing hearing. This issue is without merit.

III. Whether the trial court imposed a disproportionate and excessive sentence.

¶ 13. Prison sentences are imposed at the trial court’s discretion. Jones v. State, 885 So.2d 83, 88 (¶ 12) (Miss.Ct.App.2004). Generally, this Court will not disturb a prisoner’s sentence that falls within the statutory guidelines. Triplett v. State, 840 So.2d 727, 732(¶ 18) (Miss.Ct.App.2002). However, if the sentence is grossly disproportionate to the crime committed, the sentence triggers the Eighth Amendment’s protection against cruel and unusual punishment. Cook v. State, 728 So.2d 117, 123(¶ 16) (Miss.Ct.App.1998).

¶ 14. The United States Supreme Court established a three prong analysis, as set forth in Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to objectively identify a disproportionate sentence. Solem’s three prong analysis includes the following factors: (1) the gravity of the crimes and harshness of the penalties, (2) other criminals’ sentences in the same jurisdiction for the same crimes, and (3) sentences other jurisdictions impose for commission of same crime. Id. at 292,103 S.Ct. 3001.

¶ 15. The Court limited the application of Solem’s three prong analysis in Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In light of Harmelin, we only apply Solem’s factors to those cases where a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality. Hoops v. State, 681 So.2d 521, 538 (Miss.1996).

¶ 16. The Court previously discussed the Solem analysis in Fields v. State, 808 So.2d 989, 992 (¶¶ 10-11) (Miss.Ct.App.2002). In Fields, the defendant argued that his sentence of twenty years, with five suspended, created an inference of gross disproportionality because he was a first time offender and because there was a small amount of drugs involved. Id. at 991(¶ 8). The Court declined to apply the Solem factors to the case, after an initial comparison of Fields’ crime of selling marijuana to his sentence of twenty years, with five years suspended, led the Court to believe the sentence was not grossly disproportionate on its face. Id. at 992(¶ 11).

¶ 17. Moody alleges the trial court erred by imposing a disproportionate and excessive sentence when it sentenced him to fourteen years imprisonment in the custody of the Mississippi Department of Corrections, with five years of post release supervision, and a fine of $5,000. Moody pled guilty to one count of selling cocaine, in violation of Mississippi Code Annotated Section 41-29-139 (Rev.2005). The statutory guidelines for this offense, as provided in Mississippi Code Annotated Sections 41-29-139(b)(l) and 41-29-115(4) (Rev. 2005), establish the appropriate sentencing range of a minimum of zero years to a maximum of thirty years imprisonment and a fine range amount between $5,000 to a maximum of $1,000,000. Moody’s sentence fell within the appropriate statutory guidelines.

¶ 18. Moody argues that Towner v. State, 837 So.2d 221, 227(¶ 21) (Miss.Ct.App.2003) supports his position that a fourteen year sentence for his first offense creates an inference of gross dispropor-tionality and therefore, this Court should apply the Solem analysis factors. This Court disagrees. In Towner, we acknowledged that the unique facts of the particular case led it to apply the Solem analysis and find the defendant’s sentence was disproportionate. Id. Towner was sentenced to the maximum sentence allowed by law for his first offense, the trial judge acknowledged that his sentence may have been too harsh, and the State had no objections to a re-sentencing hearing. Id. These facts are not present in this current appeal.

¶ 19. Additionally, Moody reasserts the argument that the trial judge’s improper consideration of his additional conspiracy charges should create an inference of gross disproportionality. As previously discussed, this argument has no merit and we decline to address it any further.

¶ 20. There is a heavy burden of proof required for claims that sentences violate the Eighth Amendment’s protection against cruel and usual punishment and only in rare cases will we make such a finding. McDougle v. State, 781 So.2d 909, 912(¶ 11) (Miss.Ct.App.2000). Moody was sentenced to fourteen years in prison, well below the statutory maximum of thirty years for the offense, ordered to pay a fine of $5,000, and placed on five years of post-release supervision. Moody fails to present any evidence which would require this Court to apply the Solem factors. The threshold comparison of Moody’s sentence to the crime he committed does not lead to any inferences of a grossly disproportionate sentence.

¶21. We do not find the trial court’s denial of post-conviction relief was clearly erroneous; therefore, we affirm the trial court’s decision.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF LOWDNES COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWD-NES COUNTY.

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


source: Caselaw Access Project

author: GRIFFIS, J., for the Court.

license: Public Domain

text:
    Charles CALDWELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01667-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.

      Charles Caldwell, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J., for the Court.

¶ 1. Charles Caldwell appeals the denial of his motion for post-conviction relief. He raises four issues: (1) that his guilty plea was involuntarily made; (2) that he was denied due process of law; (3) that he was denied effective assistance of counsel; and (4) that the trial court erred in denying an evidentiary hearing on his motion. We find no error and affirm.

FACTS

¶ 2. The facts of this case are tied very closely to another case this Court recently addressed in Caldwell v. State, 953 So.2d 266 (Miss.Ct.App.2007). In each case, Caldwell pled guilty to sexual battery of female children under the age of nine years.

¶ 3. Here, Caldwell was indicted for fondling and sexual battery of “Jessy,” five-years-old, and “Lisa,” eight-years-old. While in the previous case, Caldwell was indicted for fondling and the sexual battery of “Kelly,” five-years-old. After reaching a plea agreement with the State as to both indictments, Caldwell entered a plea of guilty to the sexual battery of Jessy, Lisa, and Kelly. The agreement stated that the prosecution would recommend a thirty-five year sentence with eighteen years suspended and five years of post-release supervision, as well as retire the remaining counts in the indictments of fondling to the files.

¶ 4. On November 7, 2003, the trial court held a guilty plea hearing where Caldwell entered a plea of guilty to the sexual battery of the three children. Following a thorough plea colloquy, the trial court found that the guilty plea was knowingly and voluntarily entered and accordingly accepted the plea. The trial court then deferred sentencing to the following week.

¶ 5. On November 12, 2003, the trial court held a sentencing hearing in which victim impact statements were made by relatives of the victims. At the conclusion of the hearing, the trial court accepted the sentencing recommendation of the State and sentenced Caldwell to thirty-five years imprisonment with eighteen years suspended and five years post-release supervision for each count of sexual battery. The trial court ordered that the three sentences were to run concurrently.

¶ 6. On February 23, 2005, Caldwell filed a motion for post-conviction relief challenging the order convicting Caldwell of sexual battery against Kelly. The trial court denied the motion and Caldwell subsequently appealed. As mentioned above, this Court affirmed the trial court’s denial. Id. at (¶ 17).

¶ 7. On March 18, 2005, Caldwell filed another motion for post-conviction relief. This time Caldwell challenged the order convicting him of sexual battery against Jessy and Lisa. The motion alleged the exact same errors as the motion filed February 23, 2005. The trial court once again denied his motion, and he now appeals to this Court alleging the exact same issues as he argued in the earlier case.

ANALYSIS

¶ 8. Since this Court has dealt with one conviction of sexual battery and the same plea colloquy pertaining to the three convictions, the doctrine of collateral estoppel applies. A similar case involving separate motions for post-conviction relief occurred in Garner v. State, 944 So.2d 934 (Miss.Ct.App.2006). There, Garner received two convictions obtained by guilty pleas for two separate charges of armed robbery. Id. at 937(¶4). The guilty plea for each charge was also taken in the same plea colloquy. Id. at (¶ 5). Garner then filed two separate motions for post-conviction relief each attacking a separate conviction, which were each summarily denied. Id. at (¶¶ 6-7). Garner appealed the denial of each motion. Id. This Court addressed the merits of the first motion appealed. Id. at (¶ 6). Then, upon the appeal of the second motion, this Court found that any identical arguments were collaterally es-topped, while it addressed the merits of any new arguments. Id. at (¶ 12).

¶ 9. Here, Caldwell did not make any new or unique arguments to the convictions which he attacked. Therefore, he is precluded from the relitigation of the issues this Court has previously addressed. Id. (citing Pickle v. State, 791 So.2d 204, 207(¶ 14) (Miss.Ct.App.2001)).

¶ 10. This Court previously affirmed the trial court’s denial of Caldwell’s motion for post-conviction relief as to the conviction of sexual battery against Kelly. Caldwell, 953 So.2d at (¶ 17). Accordingly, due to the bar of collateral estoppel, we affirm the trial court’s denial of a motion for post-conviction relief as to the conviction of sexual battery against Jessy and Lisa.

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

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

      . As the victims of this crime are minor children, this opinion has changed their names in order for them to retain their anonymity.


author: LEE, P.J.,

text:
    MISSISSIPPI BOARD ON LAW ENFORCEMENT OFFICER STANDARDS AND TRAINING, Appellant, v. Daryl A. CLARK, Appellee.
    No. 2006-SA-01119-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.

      Office of the Attorney General by Royce M. Cole, attorney for appellant.
    W. Ellis Pittman, Rosharwin Lemoyne Williams, attorneys for appellee.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. The Clarksdale Police Department hired Daryl A. Clark on June 26, 2002. Clark served as a police officer without incident until July 2003. On July 19, 2003, at approximately 3:45 a.m., Officer Scott Johnson was escorting a suspect down the hall of the Clarksdale Police Department when he noticed a small plastic bag lying on the floor. The substance in the bag appeared to be powder cocaine. Officer Johnson contacted Corporal Billy Baker who tested the substance. It tested positive for cocaine. Officer Johnson testified that he initially suspected that the person he arrested dropped the cocaine while walking down the hall. However, video surveillance footage revealed that the bag had been on the floor since around 6:00 p.m. Between 6:00 p.m. and 3:45 a.m., several officers walked past the bag apparently not noticing it.

¶ 2. Chief Steve Bingham and Captain Danny Hill of the Clarksdale Police Department reviewed the surveillance video and determined that Clark had dropped the cocaine on the floor. On July 22, 2003, Clark was called to the station and confronted about the cocaine. He was given Miranda warnings and questioned but denied having possessed the bag of cocaine. Captain Leon Williams later testified at a hearing held by the Board on Law Enforcement Officer Standards and Training that during the questioning Clark asked if the cocaine was in a clear plastic bag. Captain Williams testified that prior to this no one had mentioned that the cocaine was found in a clear plastic bag. Clark denied having found or arrested anyone for possession of a controlled substance while on duty that day.

¶ 3. On January 8, 2004, a Civil Service Commission Board meeting was held where it was decided that Clark would be suspended indefinitely without pay. Clark then applied for unemployment compensation. The Mississippi Employment Security Commission (the Commission) reviewed the evidence, but not the surveillance footage, and found that Clark was entitled to unemployment compensation benefits. Next, Clark was indicted for possession of cocaine, tried, and acquitted. Following the criminal trial, the aforementioned hearing was held by the Law Enforcement Officer Standards and Training Board during which the Board viewed surveillance footage from the night of the incident. The Board found by clear and convincing evidence from the surveillance footage and testimony that Clark engaged in conduct unbecoming an officer and cancelled and recalled Clark’s professional certificate pursuant to Mississippi Code Annotated Section 45 — 6—11 (7)(e) (Rev.2004).

¶ 4. Clark appealed the Board’s decision to the Coahoma County Chancery Court. On June 7, 2006, the chancery court reversed the Board’s decision and reinstated Clark as a certified law enforcement officer in good standing with the State of Mississippi. The chancery court found that the surveillance footage was not substantial evidence of criminality. The chancery court went on to state that the Board’s pursuit of the certification hearing after the acquittal by the circuit court and the award of benefits by the Commission was evidence of arbitrary and capricious conduct.

¶5. The Board now appeals to this Court asserting the following issues: (1) the chancery court exceeded its authority in reversing the Board’s cancellation and recall of Clark’s professional certificate by considering evidence outside the record, and (2) the chancery court erred by substituting its own judgment for that of the Board.

¶ 6. Finding that the decision of the Board was based on substantial evidence, we reverse the decision of the chancery court and reinstate the Board’s decision.

STANDARD OF REVIEW

¶7. The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers, or violated the constitutional or statutory rights of the aggrieved party. Bd. on Law Enforcement Officer Standards & Training v. Voyles, 732 So.2d 216, 218(¶ 6) (Miss.1999). There is a rebuttable presumption in favor of the agency’s decisions; the burden of proving to the contrary is on the challenging party. Id. Appellate review of an agency’s decision is limited to the record and the agency’s findings. Id. at 218(¶ 7). The reviewing court cannot substitute its judgment for that of the agency or reweigh the facts of the case. Id. When this Court finds that the lower court has exceeded its authority in overturning an agency decision, we will reverse and reinstate the agency’s decision. Id.

DISCUSSION

I. DID THE CHANCERY COURT ERRONEOUSLY CONSIDER EVIDENCE OUTSIDE THE RECORD?

¶ 8. The Board argues that the chancellor erroneously gave weight to the acquittal in the criminal trial and the awarding of unemployment benefits by the Commission in reaching his decision. Also, the Board argues that the chancellor went beyond the record when he asked the Board to investigate whether Chief Bing-ham recommended the cancellation of Clark’s professional certificate.

¶ 9. In its findings, the chancery court noted “that the same evidence presented to the Board was also considered in two separate forums, under two (2) separate burdens of proof, and neither of those findings were consistent with the Board’s.” Despite this comment, the chancellor went on to state that he considered all the evidence in the record in making his decision. The chancellor also stated that “[b]y continuing to pursue the hearing to cancel Mr. Clark’s certification, after two separate forums with two separate burdens of proof had previously decided that Mr. Clark had never possessed cocaine, one could conclude that the Board’s decision was arbitrary and capricious.” We cannot agree with the chancellor that the Board’s decision to continue with the hearing was arbitrary and capricious. Mississippi Code Annotated Section 45-6-11(7) (Rev.2004) states that “[professional certificates remain the property of the board, and the board reserves the right to ... cancel and recall any certificate” upon certain occurrences. When the Board believes there is a reasonable basis for the cancellation or recalling of a certificate, notice and opportunity for a hearing shall be provided. Miss. Code Ann. § 45-6-11(8) (Rev.2004). We find that the Board was not bound by the Commission’s findings or the findings of the circuit court. Further, according to the testimony of the Clarksdale city attorney, the Commission made its findings without viewing the surveillance video. The Board believed a reasonable basis existed for cancelling or recalling the certificate and therefore properly proceeded with a hearing.

¶ 10. The Board next argues that the chancellor erroneously considered communications between the Board’s attorney and Chief Bingham that took place the day that Clark was found not guilty of possession of a controlled substance by the circuit court. The chancellor found that “these communications — however subtle they may be — unnecessarily influenced the Board in an arbitrary and capricious manner.” We find that these communications were outside the record and were not proper for consideration by the chancery court. Voyles, 782 So.2d at 218(¶ 7). The chancellor stated, “one of these subsequent communications went so far as to inquire deeply into the evidence the Clarksdale Police Department had to support that Mr. Clark possessed cocaine.” However, the communication between the Board’s attorney and the police department was irrelevant in determining whether the Board had substantial evidence to support its decision. We cannot find this statement to be evidence that the Board acted arbitrarily and capriciously. The communications should not have been considered by the chancery court as they were outside the record and outside the parameters of the standard of review.

II. DID THE CHANCERY COURT SUBSTITUTE ITS OWN JUDGMENT FOR THAT OF THE LAW ENFORCEMENT OFFICER STANDARDS AND TRAINING BOARD?

¶ 11. After reviewing the video surveillance, the Board found substantial evidence that Clark dropped the cocaine on the floor. The chancellor reviewed the same surveillance footage and found that “[t]he recording was not substantial evidence of criminality.” The Board argues to this Court that the chancellor substituted his own judgment for that of the Board and should be reversed. After a thorough review of the record, including the surveillance footage, we agree with the Board.

¶ 12. At the Board hearing, Chief Bingham, Captain Hill, and Captain Williams testified that the surveillance video showed Clark leaving the restroom and apparently tossing something between his left and right hand as he walked down the hall. The three witnesses testified that seconds later, a small plastic bag appeared on the floor. The chancellor found fault with the testimony as to what was depicted in the recording. The chancellor’s opinion stated that although “[t]he record clearly reflects that the bulk of the witnesses offered testimony as to what they saw depicted on the recording ... [n]one of these witnesses were present when the incident occurred, and none of the witnesses could state that Mr. Clark had possessed cocaine from what was shown on the recording.” The chancellor went on to find that “the recording failed to show Mr. Clark dropping anything to the floor.” Although the chancellor is correct that none of the witnesses were present at the time of the incident, their testimony was based upon the surveillance video. Also, it is true that the witnesses could not testify that the bag dropped contained cocaine; however, the contents of the bag that was picked up at the same spot the bag was dropped tested positive for cocaine. This Court has viewed the video surveillance footage and finds it consistent with the Board’s findings. We find that sufficient evidence existed for the Board to draw the conclusion based on the testimony that Clark dropped the bag of cocaine.

¶ 13. Another basis for the chancellor’s reversal of the Board’s decision was the reliability of the surveillance video. The chancellor stated that “most of the testimony offered by the City, with regards to the surveillance equipment’s capabilities, was by a retail salesman and not by one qualified with regards to its operational mechanics.” The chancellor determined that the surveillance equipment was “technologically advanced,” but the “recording was not foolproof and could be manipulated by others.” No one testified that the video was not accurate or may have been tampered with before the hearing. We find the testimony about the operation and accuracy of the surveillance system given by the salesman, who was also the president and security systems contractor of Access Technology Group, the installer of the surveillance system, was sufficient to verify its reliability. As for the chancellor’s finding that the salesman’s testimony was not sufficient, it must be kept in mind that “the formalities of practice, procedure, and evidence are relaxed in all administrative proceedings.” Mississippi Bd. of Veterinary Med. v. Geotes, 770 So.2d 940, 943(¶ 14) (Miss.2000). The surveillance video was relevant as it showed the incident in question, and we find that the video was properly relied upon during the hearing.

¶ 14. We find that the chancery court erred in reversing the Board’s decision as the Board based its findings on substantial evidence. The decision of the chancellor is reversed for reinstatement of the decision of the Board.

¶ 15. THE JUDGMENT OF THE COAHOMA COUNTY CHANCERY COURT IS REVERSED AND RENDERED FOR REINSTATEMENT OF THE DECISION OF THE BOARD ON LAW ENFORCEMENT OFFICER STANDARDS AND TRAINING. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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


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

text:
    John David QUADRINI, Appellant, v. Brandi Skrmetta QUADRINI (Spradley), Appellee.
    No. 2006-CA-00237-COA.
    Court of Appeals of Mississippi.
    Aug. 28, 2007.
    Walter Wesley Teel, attorney for appellant.
    Stephen J. Maggio, attorney for appel-lee.

      Before KING, C.J., GRIFFIS and BARNES, JJ.
   KING, C.J., for the Court.

¶ 1. David Quadrini appeals the decision of the chancellor dismissing his petition for modification of custody of his two children. Quadrini sought full physical custody of the children. Following a hearing, the chancellor granted Brandi Spradley’s motion to dismiss on the grounds that Quadri-ni failed to prove that, despite a material change in Spradley’s circumstances that created an adverse effect on the children, a change of custody was in the children’s best interest. Quadrini timely appealed. Finding no error, this Court affirms.

FACTS

¶ 2. David Quadrini and Brandi Quadrini Spradley divorced on April 2, 2003. The parties agreed to an irreconcilable differences divorce and submitted “the remaining issues of custody, child support, visitation, property division, marital bills, and attorneys’ fees” to the chancellor for disposition. Following an evidentiary hearing, the chancellor ruled on the outstanding issues, including child custody, on September 11, 2003. In that order, the chancellor set forth the appropriate standard for awarding child custody and analyzed the evidence against the factors enumerated in Albright v. Albright, 437 So.2d 1003 (Miss.1983). Following that analysis, the chancellor determined that it was necessary to enter a temporary custody order and stated as follows:

21. Other factors relevant to the parent-child relationship: Although the majority of the Albright Factors favor Mrs. Spradley to b[sic] awarded paramount custody of the children, the Court finds the parties’ lives to be in significant transition and adjustment, so much so that awarding permanent custody to either party would be premature.... [T]he Court finds that it is in the best interest of the minor children of the parties that Mr. Quadrini and Mrs. Spradley be temporarily awarded joint legal and physical custody of Tristan and Francesca, and that the children reside with their mother during the school term and with their father during the majority of the summer....
The Court finds that due to the current state of transition in the lives of the respective parties including employment responsibility and personal relationships, the Court is of the opinion that it should retain jurisdiction to modify custody or visitation to suit the best interest of the children, as opposed to having to meet the burden of showing a material change of circumstances adversely affecting the best interest of the children. Accordingly, this Court retains such jurisdiction.

¶3. The circumstances that gave the chancellor pause are referred to periodically and in piecemeal fashion in the record currently before this Court. At the time of the chancellor’s initial order, Qua-drini, who works in the restaurant business, carried a heavy and demanding workload. As a result, he relied heavily on baby-sitters to help him during his visitation with the children. Spradley apparently had engaged in extra-marital affairs prior to the parties’ decision to separate and divorce. At the time of the divorce, Spradley and her children were living with Bill Spradley, with whom she had conducted an extra-marital affair, and the chancellor was concerned that Bill Spradley might be displacing Quadrini as the children’s father figure. The Spradleys were married in October 2003, just weeks after the chancellor temporarily ruled on the child custody issue.

¶ 4. On May 27, 2004, Spradley filed a petition for modification and a motion for citation for contempt. Quadrini also filed a motion for citation for contempt. Both parties raised issues regarding visitation and handling of the children, but neither party raised the issue of modifying custody. The chancellor ruled on these motions on July 26, 2004. In the final paragraph of his order, the chancellor ordered that “[t]his Court shall retain jurisdiction to modify this Judgment. This Judgment shall remain temporary, as opposed to having to meet the burden of showing a material change of circumstances adversely affecting the best interest of the children.”

¶ 5. On September 29, 2005, Quadrini filed a petition for modification and other relief. In that petition, Quadrini alleged that he had not had visitation with his children during the months of August and September 2005. Quadrini also alleged that Spradley had failed to pay half of an outstanding medical bill, as required by the divorce decree. Finally, Quadrini requested a change in custody, arguing that “[bjecause of material changes in circumstances whereas Brandie has not secured a permanent and stable home life and not enrolled their children in school and not allowed visitation, John David petitions this Court to allow him physical custody of the children while the parties retain joint legal custody of the children.” Quadrini asserted in his motion that a material change in circumstances had occurred, but he also argued that even without a finding of a material change in circumstances, the chancellor should modify custody pursuant to the best interest standard stated in the chancellor’s initial decree. In support of this argument, Quadrini cited the chancellor’s initial declaration in the custody decree that he “retained jurisdiction to modify custody or visitation to suit the best interest of the children, as opposed to having to meet the burden of showing a material change of circumstances adversely affecting the best interest of the children.”

¶ 6. The chancellor conducted a hearing on October 28, 2005. Quadrini presented evidence that Spradley was currently living in a state of flux, due to the impact of Hurricane Katrina on the Mississippi Gulf Coast. The chancellor heard evidence that the children were living in their great-grandparents’ house in Biloxi with the Spradleys, the Spradleys’ new baby, and the children’s maternal grandparents. Quadrini also testified that Spradley was driving the children seventeen miles each way to and from school in Long Beach, a forty-minute commute via Interstate, and that Spradley had pulled the children from private school, a move that he asserted caused his son’s grades to fall significantly. Quadrini asserted, through his testimony, that he could provide the children with a more stable household, more quality time, and better opportunities. Quadrini also presented testimony that Spradley had quit her job as a teacher to pursue a singing career and that Spradley was considering a move to Tennessee to pursue that career.

¶ 7. Spradley testified as an adverse witness. She acknowledged that her family was currently in transition. She defended her choice in commuting, arguing that the children had previously attended that school and were in familiar surroundings. Spradley further testified that the family planned to move to Long Beach and rebuild, although she acknowledged that the family initially would have to live in a FEMA trader. She also defended her decision to pursue a singing career but denied that a move was imminent or inevitable, stating that she and her husband were making their decisions “one day at a time.”

¶ 8. Following the hearing, the chancellor denied Quadrini’s motion for modification. The chancellor agreed that due to the effects of Hurricane Katrina, Sprad-ley’s circumstances had worsened. The chancellor stressed, however, that the material change in circumstances was due solely to the impact of Hurricane Katrina and that he perceived the Spradleys to be making the best decisions that they could under difficult circumstances. The chancellor also stated that had Quadrini been in his current living situation at the time of the chancellor’s initial custody decree, he would have given full custody of the children to Quadrini. While the chancellor felt that Quadrini currently had the better situation, the chancellor also perceived that the Spradleys’ situation, like the situation of so many other families on the Gulf Coast, was temporary and would improve. Setting aside the issue of Hurricane Katrina, the chancellor could not find that there was an adverse effect on the children. Accordingly, the chancellor concluded that under the limited standard of review to alter a custody agreement — that a material change in circumstances adversely affected the children and that a change in custody was in the children’s best interest — he could not modify the custody arrangement.

¶ 9. On appeal, Quadrini argues that the chancellor erred as a matter of law in denying Quadrini’s motion for modification. Quadrini also argues that the chancellor should have applied the “best interest of the children standard” as set forth in the chancellor’s original, temporary decree and not the “material changes in circumstances adversely affecting the children” standard, but he contends that under either standard, he was entitled to an award of full physical custody.

¶ 10. Spradley raises the issue of jurisdiction in her brief. Spradley argues that the Court does not have jurisdiction to hear an appeal from a denial of a motion to modify a temporary order of custody. In the event that the Court does have jurisdiction to hear the appeal, Spradley argues that the chancellor applied the correct legal standard and correctly concluded that a change in custody was not warranted.

STANDARD OF REVIEW

¶ 11. A chancellor’s findings of fact are entitled to great deference, and this Court will not disturb a chancellor’s finding of fact “when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 628, 625(¶ 8) (Miss.2002). The chancellor’s application and interpretation of the law, however, are subject to de novo review. See Vaughn v. Vaughn, 798 So.2d 431, 433(¶ 9) (Miss.2001).

¶ 12. With regard to the question of subject matter jurisdiction, this issue may be raised by any party at any time, including being raised for the first time on appeal. See M.R.C.P. 12(h)(3). The question of subject matter jurisdiction is a question of law subject to de novo review. Patriot Commer. Leasing Co. v. Jerry Enis Motors, Inc., 928 So.2d 856, 863(¶ 22) (Miss.2006).

ANALYSIS

1. Subject matter jurisdiction

¶ 13. Spradley argues that if, as Quadrini claims, the chancellor’s custody September 2003 decree and May 2004 order were temporary custody orders subject to modification under the “best interest of the child” standard, then the custody decree was not a final order. Accordingly, Quadrini would effectively be appealing a denial to modify a non-final order, and only final orders are ripe for appeal.

¶ 14. In order for this Court to have jurisdiction in this case, the chancellor’s order must be final. This Court does not have jurisdiction to hear appeals from temporary orders. See Michael v. Michael, 650 So.2d 469, 471 (Miss.1995). See also Miss.Code Ann. § 11-51-3 (Supp.2006).

¶ 15. Both the original child custody decree in September 2003 and the subsequent order in July 2004 state that the chancellor is retaining jurisdiction to modify the child custody agreement under the “best interest of the child” standard. The best interest of the child is determined by balancing the Albright factors and is the standard used to make the initial determination of custody.

¶ 16. The September 2003 order clearly states that the chancellor intended for the order of custody to be temporary, as evidenced by the chancellor’s statement that “the Court finds the parties’ lives to be in significant transition and adjustment, so much so that awarding permanent custody to either party would be premature.... ” Likewise, the July 2004 order retained jurisdiction to modify the custody agreement under the less burdensome Albright standard. Despite these two clear statements, however, the chancellor, in his order denying Quadrini’s motion for modification, applied the more stringent “material change in circumstances” standard, rather than the Albright standard indicated in his previous orders.

¶ 17. Temporary orders that acquire “incidents of permanency” become permanent orders for the purpose of assigning the burden of proof in child custody modification cases. Swartzfager v. Derrick, 942 So.2d 255, 258(¶ 10) (Miss.Ct.App.2006); Thompson v. Thompson, 799 So.2d 919, 926-27 (¶¶ 29-30) (Miss.Ct.App.2001). In both cases, this Court held that the passage of time — four years in Thompson and almost three years in Swartzfager— was sufficient to provide the temporary orders with “incidents of permanency,” thereby creating a permanent order of the temporary order and shifting the burden of proof to the non-custodial parent to demonstrate a need for a change in custody by a showing of a material change in circumstances adversely affecting the child. See Swartzfager, 942 So.2d at 258(¶ 10); Thompson, 799 So.2d at 927(¶ 30).

¶ 18. In the case sub judice, the chancellor’s September 2003 order refrained from entering a permanent order of custody due to the state of transition in which both parents found themselves immediately following the divorce. After weighing the Albright factors, the chancellor opted to grant temporary physical custody to Spradley with liberal visitation for Quadri-ni. Nothing in that order indicates when, or under what circumstances, the chancellor intended to revisit the issue of custody and enter a permanent order. Quadrini appeared before the chancellor in May 2004, having filed a motion for citation for contempt against Spradley. Quadrini filed a second motion for citation for contempt on August 20, 2004, although it is unclear from the record if or when the chancellor ruled on that motion. At no time, until the filing of his petition on September 29, 2005, more than two years after the chancellor’s entry of the temporary order, did Quadrini seek to modify custody. This lapse in time between the original order and the order from which Quadrini appeals, when combined with the lack of criteria to trigger the chancellor’s review of the original temporary order allowed the September 2003 custody order to acquire “incidents of permanency” that transformed the temporary order into a permanent order.

¶ 19. Because this Court finds that the September 2003 order became a permanent order, Quadrini is properly appealing the denial of his motion for modification as an appeal from a final order. The Court has jurisdiction to hear the appeal.

2. Whether the chancellor erred in failing to award custody to Qua-drini

¶ 20. The proper legal standard for child custody modification is as follows:

(1) whether there has been a material change in circumstances which adversely affects the welfare of the child and (2) whether the best interest of the child requires a change of custody. Weigand v. Houghton, 730 So.2d 581, 585 (1999). In considering such changes, the chancery court should view the evidence within the totality of the circumstances. Spain v. Holland, 483 So.2d 318, 320 (Miss.1986). Once a material change is found, a modification of custody is warranted only if it would be in the best interest of the child. Weigand, 730 So.2d at 585. In order for this Court to find that a chancellor has not abused his discretion in these matters, there must be sufficient evidence to support his conclusions. Id.

Floyd v. Floyd, 949 So.2d 26, 29(¶ 10) (Miss.2007). The decision is a multi-step process. Even if a chancellor finds that a material change in circumstances adversely affects the children, the chancellor must “then go forward and determine whether the best interests of the child justify a change of custody.” Ash v. Ash, 622 So.2d 1264, 1266 (Miss.1993) (citing Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984)).

¶21. The chancellor denied Quadrini’s motion for modification, stating that “[t]he circumstances that I have to look to is did the conditions deteriorate on the mother’s side. And I would say, yeah, they have. But when I go through the Albright factors ... I can tell you that my analysis of it would not cause me to change custody of the children at this time.” The chancellor, in a lengthy ruling from the bench, concluded that the material change in circumstances adversely affecting the children was due solely to Hurricane Katrina and that he was “of the opinion that it’s all uphill from here.” The chancellor opined that he believed Spradley was making sacrifices and decisions that were in the best interest of the children. While he admitted to being tempted to modify custody, the chancellor acknowledged that “[t]he criteria on material change in circumstances is not, unfortunately, that things have changed and now dad is in a better position than he was before” and denied Quadrini’s motion.

¶ 22. This Court holds that the chancellor applied the correct legal standard regarding child custody modifications. The chancellor found that Spradley had experienced a material change in circumstances that adversely affected the children. The chancellor ultimately determined, however, that the best interest of the children, as analyzed under the Albright test, did not require a change in custody. This reasoning directly follows the multi-step process required under Mississippi law. Accordingly, the chancellor did not err in denying Quadrini’s motion for modification and refusing to modify the custody arrangement.

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

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., NOT PARTICIPATING.

      . Spradley filed a petition for modification of custody and a motion for citation of contempt as well, as referenced in the chancellor’s July 26, 2004, order on the motions. That document, however, is not contained in the record.

      . In both Swartzfager and Thompson, the chancellor entered a temporary order modifying custody due to mental health issues affecting the custodial parents’ ability to care for their children. In both cases, there is also no indication that the chancellor ordered regular status hearings. Accordingly, when the former custodial parents sought to re-gain custody of their children long after they had recovered from their illnesses, this Court properly held that the temporary orders had become permanent.
      In contrast to the Swartzfager and Thompson decisions, the Mississippi Supreme Court has held that a three-year delay between the entry of the temporary custody order and the entry of the final order did not render the temporary order a permanent order where the chancellor was explicit that the order was to be temporary. McDonald v. McDonald, 876 So.2d 296, 298(¶ 8) (Miss.2004). In McDonald, the Court held that by virtue of the fact that the chancellor cited two events — a home study and the dismissal of a federal lawsuit filed by the father against the chancellor — as triggers that would invite further review of the case, the order clearly was intended to be temporary. Accordingly, the Court had no jurisdiction to hear an appeal of the order. Id.

      The situation in the case sub judice, with both parents in a state of extreme transition following the divorce, is closely analogous to both Swartzfager and Thompson, in that the issue that prompted the chancellor to modify custody with a temporary order was an amorphous issue with no concrete date for resolution. This situation is unlike the situation in McDonald, where the order set concrete guidelines for additional review. The guidelines in the McDonald order, while not marked by a date certain, were defined in the order and clearly were ascertainable at some point in the future. With no specific "triggers" for additional review and no action by the chancellor sua sponte to review the status of Quadrini and Spradley's transitions into more permanent situations, the order of the chancellor took on “incidents of permanency” that transformed the temporary order into a permanent one.


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

text:
    Fredrick PAYNE, Appellant, v. MISSISSIPPI DEPARTMENT OF MENTAL HEALTH, Appellee.
    No. 2006-SA-00548-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Henry C. Clay, III, Ridgeland, attorney for appellant.
    Gene W. Rowzee, Jr., attorney for appel-lee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J., for the Court.

¶ 1. Fredrick Payne, a psychologist in the Pecan Grove ICF/MR Unit, Psychology Department, working primarily with retarded patients, was terminated from his employment for physical abuse of a vulnerable adult. A hearing was held, after which the hearing officer found that an incident occurred when Payne verbally and physically assaulted a patient in a wheelchair. Subsequently, the matter was upheld by the Mississippi Employee Appeals Board (EAB), which issued an opinion and order upholding the decision to terminate Payne’s employment. On appeal to the Circuit Court of Hinds County, the decision upholding the termination of Payne was affirmed. Payne now appeals, asserting that the EAB decision was not supported by substantial evidence and was arbitrary and capricious. Also requested for review is whether Payne was terminated for a criminal act of violating the Mississippi Vulnerable Adults Act and whether Payne was denied due process. Payne asks this Court to reverse the upholding of his termination, or, in the alternative, to remand to the EAB for a determination of whether there was a subsequent acquittal on the simultaneous pending criminal charges under the Mississippi Vulnerable Adults Act. Finding no error in the decision of the lower court, we affirm.

DISCUSSION

I. WHETHER THE DECISION OF THE EMPLOYEE APPEALS BOARD UPHOLDING PAYNE’S TERMINATION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND WAS ARBITRARY AND CAPRICIOUS?

¶ 2. Payne argues that there was a lack of substantial evidence before the EAB to support the upholding of his termination by the Ellisville State School/Mississippi Department of Health (Department), thus the decision of the EAB was arbitrary and capricious. The Department argues that Payne bore the burden of proof and failed to meet this burden at the EAB.

¶ 3. Mississippi Code Annotated section 25-9-132 (Rev.2006) controls our statutory scope of judicial review of an EAB decision. The statute provides in pertinent part,

(2) The scope of review of the circuit court in such cases shall be limited to a review of the record made before the employee appeals board or hearing officer to determine if the action of the employee appeals board is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the employee.

Miss.Code Ann. § 25-9-132. “[A] rebutta-ble presumption exists in favor of the action of the agency, and the burden of proof is on the party challenging an agency’s action.” Miss. Tramp. Comm’n v. Anson, 879 So.2d 958, 963(¶ 13) (Miss.2004) (quoting Pub. Employees Ret. Sys. v. Shurden, 822 So.2d 258, 263(¶ 13) (Miss.2002)).

¶ 4. Payne had the opportunity to rebut the charges against him by making arguments, putting on witnesses, and cross-examining witnesses at the EAB hearing. Payne testified that he attempted to restrain the patient out of necessity and did not use excessive force during the incident. Witnesses testified on behalf of Payne regarding Payne’s past work performance and their own observations of the demean- or and tendencies of the particular patient that Payne was accused of abusing. Several witnesses testified on behalf of the Department that the manner in which Payne restrained the mentally retarded client was not an approved restraint by the standards of the Techniques for Managing Aggressive Behavior training manual. Photographs taken by the risk manager on the day of the incident were introduced at the hearing, depicting red marks found on the patient’s neck. Two eyewitnesses testified that the client did not try to bite Payne, in contradiction to Payne’s testimony. Ultimately, the EAB concluded that the testimony supported the finding that Payne attempted to restrain a mentally retarded client who was in a wheelchair by placing unauthorized force on the back of the client’s neck and arm. Based on the evidence before the EAB, we cannot find that the decision was arbitrary or capricious and therefore affirm.

II. WHETHER PAYNE WAS TERMINATED FOR ALLEGEDLY COMMITTING A CRIMINAL ACT OF VIOLATING THE VULNERABLE ADULT ACT

¶ 5. Payne asserts that he was terminated for a violation of the Mississippi Vulnerable Adults Act, and argues that his termination based upon a violation of the Act was improper. Payne argues that his conduct did not rise to a level warranting dismissal, and in support of his position, he cites to a number of cases upholding a termination which resulted after serious restraint and abuse occurred. He further asserts that termination for a violation of the Vulnerable Adults Act requires a showing of his intent to abuse a vulnerable adult. Lastly, Payne requests this Court to remand his case back to the EAB for reconsideration, in the event an acquittal of the criminal charges under the Vulnerable Adults Act is entered. However, Payne recognizes that our jurisprudence has held that an acquittal in a criminal case does not necessarily affect employment termination based upon the same event.

¶ 6. The Department argues that Payne’s termination was not based on his violation of criminal law, but rather upon his violation of its policy. Specifically, the Department points out that within the pre-termination and termination notices, no references were made to Vulnerable Adults Act or the statutory prohibitions on the actions described therein. We agree that no reference was made within the termination notices regarding Payne’s conduct in reference to the Vulnerable Adults Act. Therefore, we cannot find that Payne was terminated for a criminal violation under the Act.

¶ 7. Furthermore, we find that an employee’s acquittal in a criminal case under the Vulnerable Adults Act does not provide the basis for a motion for reconsideration. In a similar termination case, Holly v. Miss. Dep’t of Corrections, 722 So.2d 632, 636(¶ 10) (Miss.1998), the supreme court held that an employee’s acquittal of charges under the Vulnerable Adults Act could not affect the decision of termination, finding that “it is possible that the evidence was sufficient to support [the employee’s] termination while being insufficient to support a criminal conviction.” Thus, we decline to remand Payne’s case back to the EAB after the pending criminal charges based on the same set of events are adjudicated.

III. WHETHER PAYNE WAS DENIED DUE PROCESS

¶ 8. Payne asserts that he was denied due process when he received notice that he was placed on leave but not informed of the type of leave he was placed on or given a formal notice of suspension. He additionally argues that his due process rights were violated when he was unable to file a grievance and did not receive a pre-termination notice in accord with the procedures mandated by the Mississippi State Employee Handbook. The Department argues that Payne was owed no more substantive obligations before his termination, as he was given adequate notice, given the opportunity to present his side of the story, and was allowed to appeal the final agency decision to the EAB.

¶ 9. The record reflects that the incident at issue occurred on August 26, 2003. Thereafter, Payne was suspended with pay; however, he did not receive a formal notice regarding the suspension until September 10, 2003. At this time, Payne was given a written reprimand, as well as a pre-termination notice. The Department additionally informed Payne that the grievance procedure outlined in the Employee Handbook would not be available to him, as the pre-termination conference would serve to supersede the grievance procedure and would render the grievance procedure unnecessary.

¶ 10. The EAB found that Payne received due process, as he received a pre-termination notice alleging that he had been verbally and physically abusive to a patient and providing a deadline for his written response to the charge. However, the EAB noted that the Department’s placing Payne on administrative leave with pay during the investigation without first providing a formal notice was error on the part of the Department but ultimately found that this failure to provide notice was harmless error. The EAB explained that the Employee Handbook rules allow for immediate suspension with pay under extraordinary circumstances. Thus, the EAB reasoned that although Payne did not receive notice during the investigation, he was placed on administrative leave with pay, and that this procedure was not viola-tive of Payne’s due process rights.

¶ 11. Further, the EAB found that the Employee Handbook rules provide for an immediate appeal to the EAB when a disciplinary action results in termination, and a decision from the EAB supplants a decision from a final authority in a grievance process. Thus, the EAB held that the Department did not violate the Employee Handbook rules when dispensing with the grievance procedure because the utilization of the grievance process would prove futile in the wake of a decision by the EAB.

¶ 12. We cannot find that the EAB erred in deciding this issue. Payne was placed on administrative leave with pay pending the resolution of the investigation, which an agency may grant at its discretion. See Davis v. Miss. State Dep’t of Health, 856 So.2d 485, 490-91 (¶¶ 22-25) (Miss.Ct.App.2003). Once the investigation was concluded, Payne was properly noticed of the Department’s intention to terminate his employment. Payne was then given an opportunity to rebut the charges against him; however, he was unable to provide sufficient rebuttal evidence at the hearing on the matter. Furthermore, we agree with the EAB in finding that Payne’s route of appeal through the grievance process would have been unnecessary because Payne, instead, utilized the route providing direct appeal to the EAB. For these reasons, we affirm.

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

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

      . The Mississippi Vulnerable Adults Act, encompassed within Mississippi Code Annotated sections 43-47-1 through 43-47-37, provides criminal sanctions for the willful abuse, neglect or exploitation of any vulnerable adult. The Department has incorporated the statutory provisions into the State Employee's Handbook, providing in a Department addendum to the handbook that “in accordance with the Vulnerable Adults Act, under no circumstances will an employee strike, shove, pinch, sexually abuse, neglect or otherwise subject any consumer to violent treatment, verbal abuse or exploitation.”


author: BARNES, J.,

text:
    Sandra GUNN, Appellant, v. Miyo HEGGINS, Appellee.
    No. 2005-CA-01794-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Johnnie McDaniels, Jackson, attorney for appellant.
    Kay S. Rector, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Sandra Gunn appeals from the judgment of the Chancery Court of Warren County, which ruled in favor of respondent, Miyo Heggins. Gunn alleges the chancellor erred in denying specific performance of a contract between Gunn and Heggins, in finding that time was of the essence in the contract, and in denying Gunn permanent injunctive relief. Gunn also asserts that Heggins is liable for damages that Gunn incurred. We find no error and affirm the chancellor’s ruling that time was of the essence in the agreement and no specific performance or permanent injunctive relief was warranted. On the issue of damages, we reverse and remand the judgment of the chancery court as Heggins was unable to produce clear title as of the closing dates and, as such, owes Gunn a refund of her earnest money.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On January 21, 2005, Gunn, through her agent, Billy Drake, entered in a written agreement with Heggins, through her son and agent, John Heggins (John), to purchase the land, building and contents located at 1141 Hwy. 61 North, Port Gibson, Mississippi. The record title owner of the land at the time was Heggins’s husband, Henry Heggins, according to a warranty deed dated November 16, 2001. Henry Heggins had recently died with a will which devised his entire estate to his wife and named her as executrix. The total purchase price of the land was $185,000 with $5,000 in earnest money paid upon the signing of the agreement, and the remainder to be paid within forty-five days, March 7, 2005. The special provisions of the contract stated the sale was on an “as is” basis and closing was to be within forty-five days of the contract’s signing. Gunn was, however, unable to obtain financing by this date.

¶3. On March 8, Drake paid John an additional $5,000 to extend the contract closing another fifteen days, in order to give Gunn and Drake more time to obtain financing. John agreed to the extension, and it was recorded on the original contract under “Special Provisions.” On March 28, Gunn still had no financing in place and was unable to complete the purchase of the property. At no time during the contract period did Heggins file a petition to probate Henry Heggins’s will. John then proceeded to negotiate with other buyers for the property. Also during this time, Fred Clark, a friend of Drake’s, contacted the Britton & Koontz Bank to help Gunn obtain financing to purchase the property.

¶ 4. John testified that, on April 5, Drake came to his office concerned that John was going to sell the property to another buyer. Drake told John that Gunn still wished to buy the property. John told Drake that he would be willing to enter into a new agreement and sell the land for $185,000 with the contents being an extra $34,000. He offered to use the $10,000 already paid by Gunn as credit towards a new contract. The next day, Heggins, through her attorney, Edwin Woods, filed a petition with the chancery court to admit her husband’s will to probate. Then, on April 7, William Bost, attorney, faxed Heggins a letter stating that he represented Gunn in the property closing and that Gunn planned to convey the property to a third party, Mr. Clark. In the letter, Bost also requested signatures from John and Heggins to confirm another extension to the original agreement. This confirmation was never signed by either John or Heggins.

¶ 5. On April 28, 2005, Gunn filed a petition for preliminary and permanent injunction and TRO in Chancery Court of Warren County. The chancellor granted an ex parte motion by Gunn, on July 22, 2005, which enjoined John from removing the contents of the building. Gunn then filed a motion to stay final judgment in order to prevent the Hegginses from selling the property to another buyer. The chancery court denied the motion. The chancellor issued a final judgment on September 8, 2005, which denied Gunn any injunctive relief or damages and found there was no breach of the contract by Heggins, allowing her to retain Gunn’s $10,000 in earnest money. Gunn timely appeals from the chancellor’s judgment.

STANDARD OF REVIEW

¶ 6. When reviewing a chancellor’s findings of fact, this Court will not disturb the factual findings when supported by substantial evidence unless the chancellor “abused his discretion, was manifestly wrong, clearly erroneous or applied an erroneous legal standard.” Biglane v. Under the Hill Corp., 949 So.2d 9, 13-14(¶ 17) (Miss.2007) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). Questions concerning the construction of a contract are questions of law and are reviewed de novo. Ferrara v. Walters, 919 So.2d 876, 881(119) (Miss.2005).

I. WHETHER THE CHANCELLOR ERRED BY NOT REQUIRING SPECIFIC PERFORMANCE ON THE CONTRACT BY THE SELLER.

¶ 7. Specific performance is an appropriate remedy in matters relating to tracts of real property because of the unique nature of real estate. Van Etten v. Johnson (In re Estate of Pickett), 879 So.2d 467, 471(¶ 2) (Miss.Ct.App.2004). Pickett is distinguished from the case at issue here as the buyer in Pickett was ready, willing, and able to perform; however the seller had a temporary impossibility dealing with probate. “A party cannot obtain a decree for specific performance, without he shows a compliance, or readiness to comply with his part of the contract[.]” Tyler v. McCardle, 17 Miss. (9 S. & M.) 230, 244 (1848). Gunn argues that she tendered performance and, therefore, equity demands specific performance. We find, however, that Gunn did not tender performance during the term of the contract. After the extended date for closing had passed, Gunn obtained a loan approval which was contingent upon clear title being obtained; at no time did Gunn have the funds in hand to purchase the property. It was only after the extended date for closing had passed that title work on the loan was completed and Gunn learned that the property was titled to Henry Heggins. “Where all or part of the performances to be exchanged under an exchange of promises are due simultaneously, it is a condition of each party’s duties to render such performance that the other party either render or, with manifested present ability to do so, offer performance of his part of the simultaneous exchange.” Restatement (Second) of Contracts, § 238. However, when it is too late for either party to make an offer to perform, both parties are discharged by the non-occurrence of a condition. Id.

¶ 8. Gunn asserts that the chancellor should have ordered Heggins to perform under the terms of the contract, even though Gunn had no financing in place to purchase the land and building. Her reasoning for this argument is that Heggins was also unable to perform as she did not have merchantable title. “The general rule in interpreting contracts is that the court will look only to the ‘four corners’ of the instrument to ascertain and give effect to the intention of the parties.” Robinson v. Martel Enterprises, Inc., 337 So.2d 698, 701 (Miss.1976). “[A] contract to sell and convey real estate ordinarily requires a conveyance of the fee simple title which is free and clear of all liens and encumbrances, unless restricted by other provisions of the contract.” Ferrara, 919 So.2d at 883(¶ 17). When a seller agrees to convey property by warranty deed, he warrants that the title conveyed is without defect, i.e., the title is clear and marketable. Id. at (¶ 18). The burden of proof is upon a seller to show beyond a reasonable doubt that there is no defect in title that would render the title unmerchantable. Barber Pure Milk Co. v. Goldin, 218 So.2d 409, 412 (Miss.1969). Regarding title, the contract in this case stated,

The seller is to furnish Warranty Deed and certificate of title to date of closing sale from reputable attorney. Reasonable time shall be allowed for examination of title. Should examination of title reveal defects which can be cured, the Seller hereby obligates himself (themselves) to cure same as expeditiously as possible and to execute and tender Warranty Deed in accordance with the terms hereof.

¶ 9. In our case, neither party was able to perform on the closing dates, although Heggins disputes this in her brief. John Heggins testified that Woods was instructed to open Henry Heggins’s estate in January 2005. Woods stated that John expressed doubt that the purchase of the land would occur so Woods did not feel there was any urgency to probate the estate. Woods also stated that it was not unusual to admit a will to probate and a petition to approve the sale of assets of the estate simultaneously. Therefore, Heg-gins claims that, had Gunn obtained the financing, the petition to probate the will and obtain clear and marketable title was a simple judicial procedure which could have easily been taken care of prior to closing. The chancellor agreed and found that Heg-gins had merchantable title to the property at issue, despite the fact the estate had not been probated prior to the date of the contract. The chancery court reasoned that the property vested in Heggins upon Henry Heggins’s death and she acted “within her capacity as sole devisee in entering the contract to sell the property.” While a deceased’s real property vests immediately at death in his heirs or devisees, “whether by intestate death and succession or by last will and testament,” In re Estate of McRight, 766 So.2d 48, 49(¶ 10) (Miss.Ct.App.2000) (citing Beach v. State, 178 Miss. 336, 173 So. 429, 430 (1937)), we do not agree that the heirs or devisees have merchantable title. Our courts have long held that a will not probated is ineffectual as an instrument of title. Virginia Trust Co. v. Buford, 123 Miss. 572, 595, 86 So. 356, 357 (1920). Good title is not merely a title valid in fact, but a marketable title, which may be sold or mortgaged. Union & Planters’ Bank & Trust Co. v. Corley, 161 Miss. 282, 312, 132 So. 78, 79 (1931). Although it may have been a simple judicial procedure to probate and cure title to the property, the fact remains that Heggins never did so during the contractual period. This failure constituted a defect in the title. She never obtained merchantable title as of March 23, 2005, and, like Gunn, never tendered performance under the agreement.

¶ 10. While we subscribe to Gunn’s assertion that Heggins did not possess merchantable title during the contract period, we cannot accept her assertion that specific performance of the contract is warranted. We find there is no indication that a valid contract existed between the parties after the final closing date of March 23, 2005, and a more detailed analysis of this finding immediately follows. Additionally, Gunn has never tendered performance under the contract, making specific performance an inappropriate remedy. “One party cannot maintain an action [for specific performance] against the other without showing performance or a tender of performance on his part.” Marshall County v. Callahan, 130 Miss. 271, 286, 94 So. 5, 6 (1922). We find that the chancellor did not err in denying specific performance of the contract at issue.

II. WHETHER THE CHANCELLOR ERRED IN FINDING TIME WAS “OF THE ESSENCE” IN THE CONTRACT BETWEEN THE PARTIES.

¶ 11. As part of her argument that the court should require Heggins to convey the property to her, even after the expiration of the extended contract term, Gunn contends that there was no clear intent or notice by Heggins that time was of the essence in the performance of the contract. To regard a contract as “of the essence,” one of two conditions must be satisfied: either the contract must expressly state that time is of the essence or there must be a clear indication that the parties intended for time to be of the essence. Ferrara, 919 So.2d at 885(¶ 25). In the absence of either condition, time will not ordinarily be considered of the essence in contract performance. Id. at (¶ 24).

¶ 12. In this case, time was not expressly stated to be of the essence; therefore, we must look to see if there is a clear indication that the parties intended it to be. Gunn argues that the delay in probating Henry Heggins’s will is evidence that there was no real urgency by Heggins to complete the purchase. Gunn also states John’s assertion, that he told Drake the money would be forfeited if Gunn did not obtain financing, was “misplaced” and violated the statute of frauds. We disagree. The contract explicitly states that the earnest money could be forfeited and used as a basis for liquidated damages; an issue we will address later in greater detail.

¶ 13. The attorney for Gunn, Bost, asked Heggins and her son, John, for signed confirmation to further extend the closing date of the contract. This fact demonstrates that Gunn and/or her representative, Drake, understood that time was an issue, and the contract had a time limitation for performance. Heggins also notes that Drake’s payment of additional money to extend the closing date shows Gunn was concerned about obtaining financing quickly in order to complete the purchase by the closing date. When parties to a contract enter into a new agreement extending the time for performance of the contract, this is evidence that they consider time to be material. Enclave, Inc. v. Resolution Trust Corp., 986 F.2d 131, 133 (5th Cir.1993).

¶ 14. A contract which specifies the period of its duration terminates on the expiration of such period. 17A Am.Jur.2d Contracts § 530 (2004). The contract at issue had a clearly defined closing date, and both parties agreed that the additional monetary consideration was for the purpose of extending the original closing date to March 28, 2005 so that Gunn could have more time to obtain financing. We find this strong evidence that Gunn was aware that she needed to perform under the contract within the dates indicated. We find no error in the chancellor’s ruling in this regard.

III. WHETHER THE CHANCELLOR ERRED IN NOT FINDING THE SELLER LIABLE FOR DAMAGES.

¶ 15. Gunn maintains that Heggins’s failure to perform under the contract resulted in monetary damages, including the loss of financing in the amount of $157,250, the loan amount approved for Fred Clark. She also states that additional damages are owed which include the loss of contents of the building originally included in the contract, valued at approximately $40,000, and substantial attorney’s fees and court costs. We agree with the chancellor that Gunn is not entitled to compensatory damages; however, we find that she is entitled to recover her earnest money.

¶ 16. When a duty to render performance is conditioned on the other party’s performance or readiness to perform, the duty to pay damages is discharged by the failure of performance by the contract purchasers. Daybreak Constr. Specialties, Inc. v. Saghatoleslami, 712 P.2d 1028, 1032 (Colo.Ct.App.1985). In Daybreak, which is analogous to this case, there was a bilateral contract which contained mutual promises to perform. A developer entered into contingent contracts for the purchase of condominiums with the contract purchasers, who paid earnest money and who were obligated under the contract to obtain loan financing within thirty days of the execution of the agreement. The developer ran into financing issues, and the property was foreclosed. The court in Daybreak found that although the developer was in default, none of the purchasers had obtained the necessary financing under the terms of the agreement and, as a result, were not entitled to damages. They were, however, entitled to a refund of their earnest money. Each party’s duty to render performance was conditioned on the other party’s performance or readiness to perform; therefore, the developer’s duty to pay damages was discharged by the failure of performance by the contract purchasers to obtain their loan financing.

¶ 17. In the case before us, as in Daybreak, we find that neither of the parties was ready to perform under the contract and, therefore, neither is entitled to damages. “Every breach of contract gives the injured party a right to damages against the party in breach, unless the contract is not enforceable against that party.” Restatement (Second) of Contracts, § 346. Accordingly, Gunn is not entitled to compensatory damages from Heggins, nor is Heggins entitled to retain the earnest money paid by Gunn. However, while Gunn did not per se request the refund of the earnest money, Heggin’s lack of merchantable title warrants the return of the money based on the terms of the contract.

¶ 18. Earnest money is considered liquidated damages, and “the only grounds for such a recovery are the unwillingness or inability of a vendor to convey according to contract, or a mutual abandonment of the contract.” Vanlandingham v. Jenkins, 207 Miss. 882, 891, 43 So.2d 578, 581 (1949) (quoting Sims v. Hutchins, 16 Miss. 328 (1847)). The contract stated:

[I]f the title is merchantable, this deposit is to apply on the cash payment. If the title is not merchantable, the Seller is to return the Purchaser the earnest money, in the event the title is found to be merchantable and the Purchaser fails to carry out and perform the terms of this agreement, he shall forfeit the above mentioned earnest money as liquid damages for such failure or refusal, and the earnest money so forfeited shall be divided equally between the seller and the agent.

If a seller does not avoid the contract and is both able and willing to perform, the buyer cannot recover what he has paid. Vanlandingham, 207 Miss, at 892, 43 So.2d at 581. However, the unwillingness or inability of the vendor to convey according to contract, or a mutual abandonment of the contract, are grounds for recovery of earnest money. Coats v. Taylor, 332 So.2d 417, 419 (Miss.1976). Heggins was unable to perform under the contract as she did not have merchantable title to the property on either closing date. Therefore, under the terms of the agreement, Heggins is obligated to return Gunn’s earnest money deposit of $10,000.

¶ 19. As to Gunn’s request for attorney’s fees and court costs, we apply the abuse of discretion standard and note that such awards “must be supported by credible evidence.” Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486(¶ 39) (Miss. 2002). “Absent contractual provision or statutory authority, attorney’s fees may not be awarded as damages in a case unless punitive damages are proper.” Prime Rx, LLC v. McKendree, Inc., 917 So.2d 791, 798(¶ 25) (Miss.2005) (quoting Mauck v. Columbus Hotel Co., 741 So.2d 259, 269(¶ 31) (Miss.1999)). Based on our review of the chancellor’s findings, we find no error, and the claim for attorney’s fees is without merit.

IV. WHETHER THE CHANCELLOR ERRED IN DENYING GUNN INJUNCTIVE RELIEF.

¶ 20. The chancellor denied Gunn permanent injunctive relief to prevent Heg-gins from removing the contents of the building. Gunn argues that this denial defeats the purpose of Mississippi Rule of Civil Procedure 65, which is to prevent a seller from “encumbering, selling, bargaining, granting, conveying, or giving away the contents and building that is the subject of the dispute before the court.” As we have already stated, the contract between the parties no longer existed after March 23, 2005. Thus, Heggins had every right to dispose of the property at question. We find no error in the chancellor’s denial of injunctive relief.

CONCLUSION

¶ 21. Neither party to the agreement was ready, willing and able to perform the duties under the contract on either closing date, and the contract terminated as of March 24, 2005. We affirm the chancellor’s ruling that time was of the essence in the agreement and that no specific performance or permanent injunctive relief was warranted. However, on the issue of damages, we reverse and remand the judgment of the chancery court as Heggins was unable to produce clear, merchantable title as of the closing dates and, as such, owes Gunn a refund of the $10,000 in earnest money.

¶ 22. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY DENYING SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF FOR THE APPELLANT IS AFFIRMED. THE JUDGMENT DENYING APPELLANT DAMAGES IS REVERSED AND REMANDED. ALL COSTS FOR THIS APPEAL ARE ASSESSED IN EQUAL PARTS TO THE APPELLANT AND THE APPELLEE.

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

      . At the time of Henry Heggins death, there was a lien for approximately $46,000 on the property held by River Hills Bank. John Heg-gins testified that the lien was paid prior to entering into the contract with Gunn.

      . Although the banker had no contact with Gunn or Drake, Clark was acting as a "silent partner” to help Drake. Clark was approved for the loan in either late March or early April of 2005.

      .The testimony by John Heggins was that Drake observed a buyer looking at the property and came to John’s office shortly after the buyer left and Drake was very upset.

      . Notice to creditors was published in The Vicksburg Post May 1, May 8, and May 15, 2005.

      . In addition, the chancellor noted that all of Heggins’s children agreed she should receive the entire estate and there was no indication that anyone would contest the will.

      . On June 6, 2005, Clark sent a letter to Drake withdrawing his offer of financing due to the time involved in resolving the "business venture.”


author: CARLTON, J., for the Court.

text:
    Roberta Louise Ivy WINTERS, John Everette Winters, Ivy June Winters Peterson, Linda Louise Winters Lavender, Susan Patricia Winters Cowgill and William Douglas Winters, Appellants, v. AmSOUTH BANK f/k/a Deposit Guaranty National Bank, Appellee.
    No. 2006-CA-00579-COA.
    Court of Appeals of Mississippi.
    Sept. 4, 2007.

      Richard R. Grindstaff, attorney for appellants.
    J. Stevenson Ray, Donna Brown Jacobs, Jackson, attorneys for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J., for the Court.

¶ 1. The income beneficiaries of two testamentary trusts filed a suit in Hinds County Circuit Court against the trustee bank for the alleged breach of the fiduciary duty of care by negligently acting with regard to the trust property. Upon motion of the Bank, the case was transferred to the Chancery Court of Lowndes County where the beneficiaries’ claims were in large part disposed of by two partial summary judgments, finding most of the claims barred by the statute of limitations. The remaining claims were voluntarily dismissed with prejudice in an agreed final judgment of dismissal. The beneficiaries appeal and argue that they were denied the right to a jury trial and that the chancellor applied the wrong statute of limitations. We find no error and affirm.

FACTS

¶ 2. Everette Louis Winters (“Mr. Winters”), a resident of Lowndes County, Mississippi, died on December 12, 1964, survived by his wife, Roberta Louise Ivy Winters (“Mrs. Winters”), and their six children. On December 17, 1964, Mr. Winters’ will was admitted to probate and his estate was administered in Lowndes County Chancery Court. The will left his assets in two trusts and named Deposit Guaranty National Bank (“the Bank” or “AmSouth”) executor of the estate and trustee of the trusts. The Bank duly administered the will and assumed its responsibilities as trustee of the two trusts created by the will, i.e., the Winterses’ residuary trust and the Winterses’ timberland trust. Among the assets of the estate was stock in Mr. Winters’ business, Columbus Handle Company, Inc., the sale of which was made to Mrs. Winters with chancery court approval in March 1965. On January 17, 1969, the estate was closed and the Bank was discharged as executor by decree of the Chancery Court of Lowndes County. The same decree authorized and directed the Bank to continue the administration of the two trusts and approved the first annual accounts for both trusts. Since 1968, Mrs. Winters and other beneficiaries of the will and trusts have brought a succession of suits against the Bank, the last of which is the subject of this appeal.

¶3. The instant case was initiated on October 25,1993, when Mrs. Winters, John Everette Winters, Ivy June Winters Peterson, Linda Louise Winters Lavender, Susan Patricia Winters Cowgill, and William Douglas Winters (collectively “the Win-terses”) filed suit in the Circuit Court for the First Judicial District of Hinds County. The complaint made numerous allegations concerning the Bank’s administration of the estate and the two trusts, sought monetary damages in the amount of $180,000,000, and demanded a jury trial. On the Bank’s motion, the case was transferred to Lowndes County Chancery Court by order dated July 18,1994.

¶ 4. The Bank moved for summary judgment on September 18, 1998, on the grounds that the claims of the Winterses were barred by the applicable statute of limitations and by principles of res judica-ta. On November 1, 1999, the court entered a partial summary judgment finding that the claims were governed by the general statute of limitations found in Mississippi Code Annotated section 15-1-49. This order disposed of (1) all claims related to the Bank’s administration of the estate, (2) all claims related to Columbus Handle Company, Inc., (3) all claims related to Robert Louis Winters, the deceased child of Mr. and Mrs. Winters, (4) all claims related to the Winterses’ residuary trust, and (5) all claims of Mrs. Winters and John E. Winters arising from the Win-terses’ timberland trust prior to October 25, 1987, and during the period from July 1,1989 to October 25,1990.

¶ 5. On November 10, 1999, the Chancery Court of Lowndes County entered an order denying the Winterses’ motion to retransfer the case back to the Hinds County Circuit Court and alternatively to grant a jury trial. In his order denying the Winterses’ motion to retransfer the case to the Hinds County Circuit Court, the chancellor determined that the case could not be retransferred. Craig v. Woods, 190 Miss. 258, 266-68, 199 So. 772, 774-75 (1941). The court also stated that “the plaintiffs have cited no case holding that the right to a jury trial was necessary at common law in a suit against a fiduciary for misfeasance and the court has found none.”

¶ 6. The second partial summary judgment was entered on March 16, 2000, after the Bank renewed its previous motion, this time supported by the depositions of Linda Louise Winters Lavender, Susan Patricia Winters Cowgill, and William Douglas Winters, and a stipulation of Ivy June Winters Peterson. This order dismissed the claims of the above-named plaintiffs involving the timberland trust existing pri- or to October 25, 1987, and during the period from July 1, 1989 to October 25, 1990.

¶ 7. After no activity for six years, the Winterses entered an agreed final judgment of dismissal on March 15, 2006, wherein all remaining claims that have not already been barred or not allowed by previous court orders were dismissed with prejudice.

DISCUSSION

1. Right to Jury Trial

¶ 8. The Winterses argue that, by virtue of the transfer of their case to chancery court and the subsequent denial of their motion to retransfer the case back to circuit court, they have been denied their right to a jury trial. They argue that the issues they have raised against AmSouth are in the nature of tort claims and are thus properly before the circuit court.

¶ 9. The determination of whether a trial court has subject matter jurisdiction over a claim is reviewed de novo, as it is a question of law. RE/Max Real Estate Partners., Inc. v. Lindsley, 840 So.2d 709, 711(10) (Miss.2003) (citing Burch v. Land Partners, L.P., 784 So.2d 925, 927(7) (Miss.2001)).

¶ 10. The Winterses correctly acknowledge that this Court may not reverse on appeal solely for lack of jurisdiction. Miss. Const, art. 6, § 147; McLean v. Green, 352 So.2d 1312, 1314 (Miss.1977); see also Miss.Code Ann. § 11-3-9 (“a judgment or decree in any chancery or circuit court rendered in a civil case, shall not be reversed or annulled on account of want of jurisdiction to render the judgment or decree.”). Section 147 of our Constitution provides as follows:

No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the supreme court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the supreme court may remand it to that court which, in its opinion, can best determine the controversy.

Miss. Const, art. 6 § 147.

¶ 11. Pursuant to section 147, “[tjhis Court is constrained on appeal to affirm if the only error is that of jurisdiction.” Trustmark Nat’l Bank v. Johnson, 865 So.2d 1148, 1152-53(16) (Miss.2004). Therefore, we will address the Winterses’ other assertions of error to determine if there is error other than as to jurisdiction.

2. Statute of Limitations

¶ 12. The Winterses argue that the lower court erred in applying Mississippi Code Annotated section 15-1-49, the general statute of limitations, rather than Mississippi Code Annotated section 15 — 1— 39, to his claim for damages for misfeasance by a fiduciary of a trust. AmSouth argues that section 15-1-49 applies because the Winterses do not seek to impose a constructive trust and, therefore, then-action is not equitable in nature.

¶ 13. Section 15-1-39 provides that “[b]ills for relief, in case of the existence of a trust not cognizable by the courts of common law and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue-” Miss.Code Ann. § 15-1-39 (Rev.2003). Section 15-1-49 provides that “[a]ll actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action accrued, and not after.” Miss.Code Ann. § 15-1-49 (Rev. 2003).

¶ 14. Our supreme court has construed section 15-1-39 as applicable to both express and implied trusts. Alvarez v. Coleman, 642 So.2d 361, 373 (Miss.1994) (citing Wholey v. Cal-Maine Foods Inc., 530 So.2d 136, 139 (Miss.1988)). However, “the application of section 15-1-39 is limited, in that the cause of action and the remedy of the case must be purely and exclusively equitable, or the general statute of limitations will be applied.” Id.

¶ 15. In Wholey, two limited partners filed suit in the Chancery Court of Hinds County against the general partner alleging fraud, self-dealing, and breach of fiduciary duty. Wholey, 530 So.2d at 139. The limited partners sought relief in the form of a constructive trust. Id. at 140. The chancery court applied the six-year statute of limitations and granted the general partner’s motion for summary judgment finding that the limited partners’ actions were “based upon fraud, cognizable by the courts of common law....” Id. at 139. On appeal, the supreme court reversed, finding that the limited partner’s cause of action was purely equitable as it sought the imposition of a constructive trust and would necessarily involve a partnership accounting. Id. at 139-40. In reaching this decision, the court stated:

In Stebbins v. Hayes, 379 So.2d 898 (Miss.1980), this Court looked to the allegations in the complaint in determining that the theory of the case was in the nature of an implied trust or the right to a partnership accounting, so as to mandate the application of the ten-year statute of limitations in § 15-1-39.

Id. The court in Wholey applied the ten-year statute of limitations of section 15 — 1— 39. Id.

¶ 16. In Alvarez, the plaintiffs claimed title to real estate as beneficiaries of a purported family trust agreement. Alvarez, 642 So.2d at 364. The chancellor dismissed the case as barred by the six-year statute of limitations. Id. at 373. On appeal, the supreme court reversed the dismissal reasoning that although Alvarez advanced a breach of contract claim, for which the remedy is found at law, “[his] primary argument in this case — the existence of a constructive trust — is based in equity.” Id. at 374. The court then applied the ten-year statute to Alvarez’s claims for equitable relief on the theory of a constructive trust. Id.

. ¶ 17. In the instant case, we find that the Winterses’ action is not purely and exclusively equitable. The Winterses’ complaint demonstrates that the nature of the present action is a tort action for the alleged breach of the fiduciary duty of care by negligently acting with regard to the trust property. Importantly, the Winters-es seek no equitable relief. As distinguished from Wholey and Alvarez, the Winterses do not seek to impose a constructive trust. Instead, they seek purely legal relief, namely, compensatory and punitive money damages in the amount of $180,000,000. Therefore, we find that the cause of action and the remedy of this case are not purely and exclusively equitable. We hold that the chancellor did not err in applying the general six-year statute of limitations of section 15-1-49.

S. Continuing Tort Doctrine

¶ 18. The Winterses argues that the continuing tort doctrine applies and should toll the statute of limitations in the instant case. Stevens v. Lake, 615 So.2d 1177, 1183 (Miss.1993). They argue that the Bank has made continued and repeated injuries to the Winterses’ estate. Conversely, AmSouth argues that the continuing tort doctrine does not apply and that the statute of limitations begins to run when a plaintiff can be reasonably held to have knowledge of the injury. Baldwin v. Holliman, 913 So.2d 400(26) (Miss.Ct.App.2005).

¶ 19. “A ‘continuing tort’ is one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” Stevens, 615 So.2d at 1183 (citing C.J.S., Limitations of Actions § 177 at 230-31). Continual ill effects from an identified unlawful act is insufficient to invoke the continuing tort doctrine. Id.

¶ 20. In the instant case, each wrongful act or omission alleged by the Winterses is identifiable and distinct. The Winterses’ complaint points to numerous instances of alleged wrongful or negligent conduct, however, the acts or omissions asserted are not continual. There is an ascertainable date on which the acts or omissions occurred and the tort was complete. The Winterses essentially claim that the effects of multiple wrongful or negligent acts have combined to produce an ongoing injury in the form of monetary loss. Although the ill effects of AmSouth’s alleged wrongful acts may be continual, this does not warrant the application of the continuing tort doctrine. We hold that the chancellor did not err in its determination that the continuing tort doctrine is inapplicable to the Winterses’ claims.

¶ 21. THE JUDGMENT OF THE LOWNDES COUNTY CHANCERY COURT IS AFFIRMED. ALL COST OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.

      . The events leading up to this case occurred while the Bank was Deposit Guaranty National Bank. However, DGNB later became Am-South Bank which recently became Regions Bank on November 4, 2006.

      . The residuary trust was terminated by court order dated November 30, 1984, and the assets were transferred to Mrs. Winters, the sole remainderman. The timberland trust remains in existence with the Bank serving as trustee and the Winterses as income beneficiaries.

      . The style of the original complaint included as plaintiffs William Douglas Winters, Roberta Louise Winters, Linda Louise Winters Lavender, and John Everette Winters. The complaint was later amended to add a party plaintiff, Ivy June Winters Peterson, and to reformulate the style of the case to include Susan Patricia Winters, who was named in paragraph two of the original complaint instead of in the style of the case.

      . This suit was filed October 25, 1993. Section 15-1-49 provided for a six-year statute of limitations until 1989, when it was amended to provide a three-year' period of limitation applicable to causes of action accruing on or after July 1, 1989.

      . As noted above, this statute provided for a six-year statute of limitations until 1989, when it was amended to provide a three-year period of limitation applicable to causes of action accruing on or after July 1, 1989.