author: JAMES C. GULOTTA, Judge, Pro Tempore.

text:
    METAIRIE PJ’S, INC. v. RICHARDS CLEARVIEW, L.L.C.
    No. 07-CA-188.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 28, 2007.
    Rehearing Denied Sept. 17, 2007.

      Gregory C. Bachaud, Attorney at Law, Gretna, LA, for Plaintiff/Appellee.
    Thomas E. Richards, Attorney at Law, Covington, LA, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, GREG G. GUIDRY, and JAMES C. GULOTTA, Pro Tempore.
   JAMES C. GULOTTA, Judge, Pro Tempore.

12Richards Clearview L.L.C. (Clearview) appeals from a judgment denying its Rule to Evict Metairie PJ’s (PJ’s). Clearview’s Rule to Evict is based on the tenant’s failure to timely exercise, in writing in accordance with the lease terms, its intent to renew or extend the lease. According to Clearview, Hurricane Katrina interrupted business at the Mall. But, within a few weeks of the Mali’s closure, Clearview’s agent, Blaine Gahagan, contacted PJ’s owner, Joseph LaHatte, Jr., (LaHatte). When Gahagan inquired if PJ’s would immediately reopen and whether PJ’s intended to renew the lease, LaHatte replied affirmatively. He cleaned the | hurricane damage, replaced the perishables, and replaced machinery. On June 1, 2006, PJ’s notified Clearview in writing that it intended to renew the lease, which was due to expire on its terms on November 4, 2006. On October 8, 2006, Clearview requested PJ’s to vacate the premises by October 31, 2006.

PJ’s seeks to have this Court declare that, “in consideration of the totality of extraordinary circumstances and principles of equity, petitioner had sufficiently notified defendants of his intention to renew the lease and relied on their tacit acceptance of the tenants notice.”

After a hearing on the petition for preliminary and permanent injunctions and the Rule to Evict, the trial judge denied the eviction of PJ’s. Clearview appeals.

In its Reasons for Judgment, the court found that delivery of the premises took place on August 6, 2001; that the expiration of the original lease would have occurred on November 4, 2006; and that PJ’s gave written notice to renew on June 1, 2006, 157 days prior to expiration of the lease.

Section 12.24 of the lease sets forth the crucial option to renew:

If the Original Tenant shall, during the whole of said term ... well and faithfully keep and perform the terms, covenants, and conditions in this Lease ... the Original Tenant shall have the option to extend the term of this Lease ... by giving Landlord written notice of Original Tenant’s exercise of said option to extend the term at least ... (180) days before the beginning of the additional period for which the term hereof is to be extended by the exercise of such option. If the Original Tenant gives such notice, this Lease shall be so extended automatically without execution of an extension or renewal lease.

Among the documents in evidence was a Notice of Eviction dated September 22, 2006; Notices to Vacate dated October 3, 2006 and October 11, 2006; an e-mail dated September 21, 2006 to Clearview’s attorney detailing PJ’s late rent payments; and a letter from LaHatte to Clearview’s attorney, stating that | ¿there had been a verbal agreement to renew the lease. PJ’s introduced a letter dated June 1, 2006 regarding PJ’s intent to renew.

At the hearing, Tara Lubrano, general manager at Clearview Mall, testified she had been assistant manager for eight years prior to becoming manager and is familiar with the mall leases. She stated the premises were delivered to PJ’s on June 28, 2001, and because the lease allowed the lessee 90 days from that date to open for business, the original term of the lease expired in five years, on September 28, 2006. Ms. Lubrano testified that, under the lease, written notice of intent to exercise the option to renew had to be received 180 days before the lease term expired, and that no written notice from PJ’s was received.

It was Clearview’s position that PJ’s was in default under the lease when it failed to pay the minimal annual rent and other sums payable under the lease three or more times in any periods of 12 consecutive months. PJ’s opened for business sometime in September after Katrina. PJ’s had not paid the rent on time during 2006. The rent was due on the first of every month. Lubrano stated that there were occasions when she had to go to PJ’s to collect the rent. According to Lubrano, in some months the rent was not in the correct amount. Lubrano only became aware of PJ’s rent status since she became general manager in 2006. She was never instructed not to collect rent from PJ’s. Lubrano agreed that according to the lease, the written notice could be hand delivered, or delivered by electronic means, certified or registered mail, but that she had neither seen nor received LaHatte’s letter of June 1, 2006, stating PJ’s intention to renew.

A few months before expiration of the lease, Lubrano phoned PJ’s owner and asked him if he intended to renew. She knew written notice was required, but “called those tenants to see if they ... still wanted to stay in the mall.” Lubrano | ^agreed that this was “verbal” notice to Clearview that LaHatte was interested in renewing the lease. She requested that LaHatte put the notice in writing.

LaHatte, an attorney, testified that a couple of weeks after Katrina, the mall’s manager called several times begging that he re-open the business. LaHatte testified that his copy of the lease was at his law office, which was flooded after Katrina. LaHatte went to great personal expense to re-open, and had to replace the hot water heater, coffee machines, all the computers, two coolers, as well as the products. At the request of the mall, he opened PJ’s at the end of September, and drove in to bring supplies every day from Baton Rouge, where he had been living. La-Hatte testified that he never received any of Clearview’s letters requesting him to vacate the premises.

Additionally, LaHatte introduced a letter from Stirling Properties dated August 6, 2001, as evidence of the date of delivery of the premises. According to Ms. Lubra-no, Stirling Properties was a leasing company that had assisted PJ’s in leasing the space in the mall. This date conflicts with Ms. Lubrano’s testimony that the date of delivery was on June 28, 2001. The trial judge’s reasons for judgment reflect that he concluded that August 6, 2001 was the date of delivery, and we find no manifest error in that conclusion.

It is clear that LaHatte, on behalf of PJ’s, orally informed Clearview’s managers of his express intent to renew the lease. It is equally clear that PJ’s failed to notify Clearview of its intent to renew the lease in writing within 180 days before termination of the lease. Rather, the written notice was given to Clearview 157 days before termination of the lease.

Clearview relies on Southern Ventures Corp. v. Texaco, 372 So.2d 1228 (La.1979) and Sizeler Hammond Square Limited Partnership v. Gulf States Theatres Inc., 02-759 (La.App. 5 Cir. 12/11/02), 836 So.2d 256, writ denied, 03-0070 (La.3/21/03), 840 So.2d 552, for the principle that if a lease provides that its renewal shall only occur upon timely written notice by the lessee, and the lessee gives that notice in an untimely manner, any such notice is invalid and does not renew the lease.

In Southern Ventures, the lease provided that notice of intention to exercise an option to renew had to be given in writing no less than 60 days prior to the expiration of the initial term. The lessee sent an untimely notice, and continued to occupy the property and pay rent after expiration of the lease. The issue in that case was whether or not the lessor waived the lease requirement by continuing to accept rental payments after the expiration of the initial term. The Supreme Court held that it did not, noting there was no provision in that lease which would obligate the lessor to accept late notice, and that the lessee had no right to retain possession on a month-to-month basis.

In Sizeler, supra, the lessee claimed that the lease had terminated when it sent a late written notice of its intent to renew the lease. This Court found that the lessee did not timely exercise the option to renew and concluded that the lease had expired by its own terms. Further, we concluded that the lessee failed to establish that the landlord waived the untimely exercise of the option to renew. Id. at 260-261.

The issue presented by Clearview in our case is whether the lease expired on its terms when PJ’s written notice of intent to renew was not tendered 180 days from expiration of the lease as required in the lease. It is clear that PJ’s simply failed to comply with the requirements of the lease term. Southern Ventures, supra and Siz-eler, supra.

Although the record demonstrates empathy and equitable considerations for PJ’s, nonetheless equity cannot be applied in the face of clear legal failure by PJ’s |7to comply with the terms of the lease. Having so concluded, we reverse and set aside the judgment of the trial court denying Clearview’s Rule to Evict PJ’s from the leased premises. Accordingly, Clearview’s Rule to Evict PJ’s is granted.

REVERSED AND RENDERED.

      . seeks a Temporary Restraining Order and Preliminary and Permanent Injunction against Clearview from Clearview’s Rule to Evict PJ’s from Clearview mall.


source: Caselaw Access Project

author: WALLER, Presiding Justice,

license: Public Domain

text:
    Robert Lee SAUL v. Yvonne JENKINS d/b/a Extra Care.
    No. 2006-CA-01118-SCT.
    Supreme Court of Mississippi.
    Aug. 30, 2007.
    John N. Satcher, II, Heidelberg, Gary D. Thrash, Jackson, attorneys for appellant.

      Eric A. Tiebauer, Waynesboro, attorney for appellee.
    Before WALLER, P.J., EASLEY AND GRAVES, JJ.
   WALLER, Presiding Justice,

for the Court.

¶ 1. This case involves the applicability of medical malpractice notice requirements to unlicensed health care providers. Because we find that licensing is a prerequisite for a defendant to assert the protections afforded by Mississippi’s limitations to medical malpractice actions, we reverse the trial court’s dismissal of the suit and remand the case to the trial court for further proceedings.

FACTS

¶ 2. Robert Lee Saul was placed into the care of Yvonne Jenkins and her nursing home, Extra Care, from May 5, 2004, through June 6, 2004. Saul was in stable condition when he arrived at Extra Care, but within two months, his condition had deteriorated precipitously. On June 6, 2004, he was admitted to South Central Regional Medical Hospital and was diagnosed with sepsis, pneumonia, dehydration, and severe bed sores. He did not return to Jenkins’s facility.

¶ 3. Saul filed a negligence lawsuit against Jenkins d/b/a Extra Care in the Jones County Circuit Court on January 10, 2006. Jenkins moved to dismiss the suit, arguing that Saul failed to comply with Mississippi Code Annotated section 11 — 1— 58 (Supp.2006), which requires a plaintiff in a medical malpractice suit to file a certificate of consultation stating that her attorney has consulted at least one qualified expert. Saul responded, arguing: (1) that at the time of filing, Jenkins was not a licensed healthcare provider within the meaning of Mississippi Code Annotated section 11-1-58, and consequently, the section did not apply; or, in the alternative, (2) that pursuant to an exception in section 11-1-58(4), Saul was not required to file the certificate of consultation because Jenkins would not produce any files or records of Saul’s treatment and care for medical review.

¶ 4. At the trial court’s hearing on the motion to dismiss, Jenkins also argued that Saul failed to comply with the sixty-day notice requirements of Mississippi Code Annotated section 15-1-36(15) (Rev. 2003). Saul maintained that Jenkins was neither licensed nor certified to provide health care and therefore ineligible for the protections of section 15-1-36(15). The trial court granted Jenkins’s motion to dismiss, finding that Jenkins’s facility was a protected entity, entitled to the same sixty-day notice requirement as a licensed healthcare provider, and that Saul had failed to provide proper notice. Saul subsequently perfected this appeal, maintaining that Jenkins was not entitled to invoke the sixty-day notice requirement because she failed to plead this defense in a responsive pleading or argue it at the hearing, and that Jenkins cannot invoke the notice requirement in any event, because she is not a licensed health care provider.

DISCUSSION

¶ 5. We review de novo a dismissal for failure to state a claim upon which relief can be granted, and will affirm only if the defendant can show beyond doubt that the law offers the plaintiff no possible remedy. Miss. R. Civ. P. 12(b)(6). Ralph Walker, Inc. v. Gallagher, 926 So.2d 890 (Miss.2006). In considering the grant of a motion to dismiss, “the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond reasonable doubt that the plaintiff will be unable to prove any set of facts in support of her claim.” Howard v. Estate of Harper, 947 So.2d 854, 856 (Miss.2006). Because the trial court never reached the question of whether Jenkins was licensed or qualified for health-care provider classification, we will determine only whether licensing is required in order to receive the protection of Mississippi Code Annotated section 15-1-36(15).

¶ 6. Saul first argues that Jenkins was not entitled to invoke the sixty-day notice requirement of section 15-1-36(15) because she failed to plead or argue the applicability of the notice requirement. However, we consistently have found that the notice requirement of section 15 — 1— 36(15) is mandatory and jurisdictional, and that, consequently, a defendant need not plead or argue it as a defense. Arceo v. Tolliver, 949 So.2d 691, 695 (Miss.2006) (citing Pitalo v. GPCH-GP, Inc., 933 So.2d 927, 928-929 (Miss.2006)). While there was no procedural bar to the application of the notice requirement, we must consider whether the notice requirement of section 15-1-36(15) is applicable to an entity such as Extra Care.

¶ 7. Jenkins argues that Extra Care, as a health care provider, is a party contemplated by section 15 — 1—36, which details the limitations placed on medical malpractice suits. In construing a statute, we seek the intention of the Legislature and adopt that interpretation which will reflect the intended meaning of the Legislature. Arceo, 949 So.2d at 695; Pitalo, 933 So.2d at 928-929 (citing Evans v. Boyle Flying Service, Inc., 680 So.2d 821, 825 (Miss.1996)).

¶8. Under Section 15-1-36(1), no tort claim may be brought

: “... against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.”

In addition to this two-year statute of limitations, Section 15-1-36(15) requires plaintiffs to provide sixty days’ notice of intention to commence an action:

(15) No action based upon the health care provider’s professional negligence may be begun unless the defendant has been given at least sixty (60) days’ prior written notice of the intention to begin the action. No particular form of notice is required, but it shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered. If the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended sixty (60) days from the service of the notice for said health care providers and others. This subsection shall not be applicable with respect to any defendant whose name is unknown to the plaintiff at the time of filing the complaint and who is identified therein by a fictitious name.

The question is whether a health care provider must be licensed in order to avail itself of the limitations imposed by Section 15-1-36.

¶ 9. Mississippi law requires that institutions for the aged or infirm be licensed. Miss.Code Ann. § 43-11-5 (Rev.2004) (“No person, acting severally or jointly with any other person, shall establish, conduct, or maintain an institution for the aged or infirm in this state without a license.”). Operating such an institution without a license is illegal per se. Miss.Code Ann. § 43-11-25 (Rev.2004) (“Any person establishing, conducting, managing or operating an institution for the aged or infirm without a license under this chapter shall be guilty of a misdemeanorThis licensing requirement exists to insure safe, sanitary, and reasonably adequate care of individuals while under the care of nursing home facilities. Miss. Code Ann. § 48-11-3 (Rev. 2004).

¶ 10. Section 15-1-36, by its plain terms, applies only to those health care providers that have been licensed to provide medical services. Extending notice protections to unlicensed individuals rewards a disregard for the law, because it affords unlicensed institutions the same benefits as licensed, law-abiding institutions. This result runs contrary to the plain meaning of section 15-1-36(15) and to the laws requiring licensing for institutions for the aged or infirm.

¶ 11. It is not clear from the record whether Extra Care was a licensed health care provider entitled to the notice requirement of section 15-1-36(15). If Jenkins’s own description of Extra Care as a nursing home is accurate, then it could not avail itself of the notice requirement unless it was a licensed institution as required by section 43-11-5. If Jenkins lacked a proper license during this time, she is not entitled to the same protections given to those properly licensed institutions contemplated by section 15-1-36.

CONCLUSION

¶ 12. Because the status of Extra Care is a material issue of fact, the trial court erred in granting the motion to dismiss. We therefore reverse the dismissal and remand the action to the trial court for proceedings consistent with this opinion.

¶ 13. REVERSED AND REMANDED.

SMITH, C.J., EASLEY, CARLSON, GRAVES, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY.


author: MYERS, P.J.,

text:
    Terrance GUINN, Appellant v. G.T. WILKERSON and Blackburn Motor Company, Inc., Appellees.
    No. 2005-CP-01779-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied April 10, 2007.

      Terrance Guinn, appellant, pro se.
    B. Blake Teller, Vicksburg, attorney for appellees.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. This case comes on appeal from the order of the Circuit Court of Warren County denying Terrance Guinn’s motion for relief from judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(6). Finding Guinn’s breach of contract claim to be frivolous, the trial judge dismissed the action pursuant to Mississippi Rules of Civil Procedure 12(b)(6) and invoked sanctions under Rule 11. Guinn was unable to attend the hearing on the appellees’ motion to dismiss, as well as his own motions for judgment on the pleadings and summary judgment, because he was incarcerated in the Madison County Detention Center. Guinn asserts that the judge erred in denying his motion for relief from judgment because “extraordinary circumstances” prevented his attendance and he should have been afforded an opportunity to be heard. For this reason, Guinn appeals raising the following issue:

WHETHER THE TRIAL COURT ERRED OR ABUSED ITS DISCRETION IN REFUSING TO GRANT RELIEF FROM JUDGMENT PURSUANT TO MISSISSIPPI RULE OF CIVIL PROCEDURE 60(b)(6)?

¶2. Finding no error, we affirm the ruling of the trial court.

STATEMENT OF THE FACTS

¶ 3. On March 14, 2005, Terrance Guinn went to Blackburn Motor Company, Inc., in Vicksburg, Mississippi, where he informed the manager, G.T. Wilkerson, that he was interested in purchasing a 2004 Nissan Maxima. Guinn indicated that he would pay cash for the automobile. A cash worksheet was prepared by Wilkerson which established a total cash purchase price of $26,674.95. Guinn requested that Wilkerson sign the worksheet, which he did. Although there is a designated line for the customer to sign for acceptance of the price term, Guinn did not sign there. Instead, he wrote “Acceptance” across the face of the worksheet, signed his name underneath, and dated the document. Guinn then explained that he would need to go and retrieve the necessary funds and would return later to purchase the vehicle. He left the dealership with the worksheet. When Guinn returned, he handed the signed and dated worksheet to Wilkerson and demanded the car be released to him. However, Guinn offered no payment, cash or otherwise, on the vehicle. Wilkerson explained to Guinn that some sort of payment would have to be tendered before the vehicle could be released. Guinn then began accusing Blackburn and Wilkerson of breaching the contract. Wilkerson attempted to explain that the worksheet was not a contract, but that Blackburn would gladly release the vehicle upon receipt of the agreed cash payment. Guinn refused to tender payment and left the dealership.

¶ 4. On March 25, 2005, Guinn filed his complaint in the Circuit Court of Claiborne County. Guinn averred that he had performed fully under a contract for the sale of a 2004 Nissan Maxima and that Blackburn and Wilkerson had breached the agreement by refusing to relinquish the automobile. However, Guinn has failed to make any tender of payment on the automobile. Blackburn and Wilkerson timely filed their joint motion to dismiss, affirmative answers, and a counterclaim requesting relief under Mississippi Rule of Civil Procedure 12(b)(6), sanctions under Rule 11, as well as attorney’s fees, economic loss, and punitive damages. A change of venue was also requested by Blackburn and Wilkerson, pursuant to Rule 12(b)(3), and the case was properly transferred to the Circuit Court of Warren County.

¶5. On June 2, 2005, Guinn noticed a hearing on his motion for judgment on the pleadings and scheduled it for July 25, 2005. On July 14, 2005, Guinn filed a motion for summary judgment. The hearing on Guinn’s motions for judgment on the pleadings and summary judgment, as well as Blackburn and Wilkerson’s request for relief under Rules 12(b)(6) and 11 was held as scheduled, on July 25, 2005. Guinn was unable to attend the hearing because he was incarcerated in the Madison County Detention Center on unrelated charges. Although Guinn requested that the court “summons” him for the hearing, he failed to seek a continuance. The hearing proceeded without Guinn and the judge heard a brief argument from Blackburn and Wilkerson. After hearing unsworn statements by Wilkerson and a representative of Blackburn, the judge decided to exclude the statements presented and proceed only on the pleadings. Guinn’s motions for judgment on the pleadings and summary judgment were denied and the court granted a dismissal in favor of Blackburn and Wilkerson pursuant to Rule 12(b)(6). Finding Guinn’s claim to be frivolous, the trial judge assessed Rule 11 sanctions and awarded Blackburn and Wilkerson $1,607.15 in attorney’s fees.

¶ 6. Guinn filed a motion for relief from the judgment under Rule 60(b)(6). He asserted that his absence due to incarceration was through no fault of his own and should be considered an extraordinary circumstance that prevented him from protecting his legal interests. Guinn argued that such circumstances warrant relief under Rule 60(b)(6). The trial judge held a hearing on Guinn’s motion, but ultimately denied Guinn’s request for relief. Aggrieved by the trial court’s ruling, Guinn now appeals.

LEGAL ANALYSIS

¶7. “A trial judge’s refusal to grant relief under Rule 60(b) is subject to review under an abuse of discretion standard.” M.A.S. v. Miss. Dep’t of Human Servs., 842 So.2d 527, 530(¶ 12) (Miss.2003). Relief under Rule 60(b)(6) is reserved for extraordinary circumstances. Id. “As a general rule, the ‘extraordinary relief provided for by Rule 60(b), will be granted ‘only upon an adequate showing of exceptional circumstances,’ and gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief.” Accredited Surety & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988). “Rule 60(b) is not an escape hatch for litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” M.A.S., 842 So.2d at 530(¶ 12) (quoting City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 986(¶ 5) (Miss.2001)). “Further, Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case.” Id. (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)). Accordingly, before a Rule 60(b)(6) motion may be .granted, a three-part balancing test must be applied. King v. King, 556 So.2d 716, 719 (Miss.1990). Under this test, the court must determine: (1) whether the movant’s basis for requesting relief is legitimate, (2) whether the movant has a colorable defense to the merits of the adjudged case, and (3) whether the non-mov-ant will be unduly prejudiced if the motion is granted. Rich by Brown v. Nevels, 578 So.2d 609, 613 (Miss.1991) (citing King, 556 So.2d at 719).

¶ 8. Here, the court determined that Guinn’s incarceration was not an extraordinary circumstance warranting relief from judgment under Rule 60(b)(6), and the final judgment dismissing Guinn’s breach of contract complaint pursuant to Rule 12(b)(6) and invoking sanction for a frivolous claim under Rule 11 was left undisturbed. Applying the three-part test outlined above we first must address whether or not Guinn had a legitimate basis for requesting relief. Id. We agree with the trial court that he did not. Guinn’s claim is for breach of contract. The elements of breach of contract are: (1) the existence of a valid and binding contract; (2) breach of the contract by the defendant; and (3) money damages suffered by the plaintiff. Favre Prop. Mgmt., LLC v. Cinque Bambini, 863 So.2d 1037, 1044(¶ 18) (Miss.Ct.App.2004). Since Guinn’s claim was dismissed pursuant to Rule 12(b)(6), “we must determine whether the allegations of breach, taken as true, are sufficient to state a claim upon which relief may be granted.” Id. Even assuming that the worksheet is a contract, which it is not, Guinn fails to show either that Blackburn and Wilkerson had a duty to release the vehicle prior to a tender of payment or that he has suffered any financial loss by their refusal. Guinn does not assert that he has ever tendered payment for this vehicle, and therefore, we find that he has no legitimate basis for requesting relief.

¶ 9. Under the second part of the King/Rich by Brown balancing test, we must determine whether Guinn has a col-orable defense to the case as adjudged. Rich by Brown, 578 So.2d at 613. Guinn asserts that his incarceration at the time of trial is an extraordinary circumstance warranting relief under Rule 60(b)(6). We disagree. First, Guinn noticed the hearing for July 25, 2005, and then failed to seek a continuance when it became evident that he would remain incarcerated on that date. This Court will not allow a litigant to escape a final judgment based on his own failure to pursue available procedural remedies. M.A.S., 842 So.2d at 530(¶12). Second, we disagree that Guinn’s absence was through no fault of his own, and given the opportunity available to him to seek a continuance, we cannot find that his absence, due to incarceration, rises to the level of an extraordinary circumstance warranting relief from judgment under Rule 60(b)(6). We find that Guinn suffered no prejudice by his absence because the judgment was made on the pleadings. Furthermore, Guinn fails to argue that Blackburn and Wilkerson’s Rule 12 motion should have been converted into a summary judgment because matters outside the pleadings were introduced at the hearing, but even if he had, this Court would not be persuaded. Under Rule 12(b), matters introduced outside the pleadings may be excluded by the trial court and review may proceed pursuant to Rule 12(b)(6). Favre Prop. Mgmt., 863 So.2d at 1044(¶ 18). In the case at bar, the trial judge decided to rule solely on the pleadings and exclude matters introduced at the hearing. We find that the trial judge’s decision to exclude matters presented at the hearing and to rule only on the pleadings was well within his discretion, and with this ruling, we find no error.

¶ 10. Finally, we must determine whether Blackburn and Wilkerson would be unduly prejudiced if Guinn’s Rule 60(b)(6) motion were granted. Rich by Brown, 578 So.2d at 613. We hold that they would be unduly prejudiced. The trial judge determined Guinn’s complaint to be absolutely frivolous and with this assessment we agree. Guinn failed to state a claim upon which relief may be granted and an attempt to relitigate this claim through a Rule 60(b)(6) motion will not be allowed. M.A.S., 842 So.2d at 530(¶ 12). We find the three-part balancing test of King as outlined in the case of Rich by Brown to weigh in favor of denial of Guinn’s motion for relief from judgment. Therefore, we hold that the trial judge did not abuse his discretion in failing to grant Guinn’s request for relief and we affirm the trial court’s denial of Guinn’s Rule 60(b) motion.

CONCLUSION

¶ 11. The decision of the trial court to deny Guinn’s Rule 60(b)(6) motion for relief from judgment was well grounded in the law and no abuse of discretion can be found by this Court. We agree that Guinn’s complaint was frivolous and dismissal pursuant to Rule 12(b)(6) and sanctions under Rule 11 were proper in this case. We do not find that the absence of Guinn from a hearing rendered ultimately of no consequence, by the trial judge’s decision to rule on the pleadings, prejudiced his interest in any way or created an extraordinary circumstance warranting relief under Rule 60(b)(6). Accordingly, the judgment of the trial court denying Guinn’s motion for relief from judgment is affirmed.

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

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


author: IRVING, J.,

text:
    Richard CLANTON, Appellant v. DeSOTO COUNTY SHERIFF’S DEPARTMENT and Sheriff James A. Riley, Appellee.
    No. 2005-CA-01453-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.
    Rehearing Denied May 22, 2007.

      T. Swayze Alford, attorney for appellant.
    David A. Barfield, Jackson, Steven Lloyd Lacey, attorneys for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court.

¶ 1. Richard Clanton filed a complaint against the DeSoto County Sheriffs Department and Sheriff James A. Riley following his termination from the department. In his complaint, Clanton alleged breach of employment contract, tortious breach of contract, negligent and intentional infliction of emotional distress, intentional interference with employment contract, and breach of implied covenant of good faith and fair dealing. The trial court granted the Sheriffs Department and Riley’s motion to dismiss or, in the alternative, motion for summary judgment. Aggrieved, Clanton appeals and asserts that the circuit court erred in granting summary judgment and in finding that he was an at-will employee.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On March 7, 2001, Clanton was arrested and charged with grand larceny for allegedly stealing a refrigerator from a Home Depot. At the time of his arrest, Clanton was a law enforcement officer with the Sheriffs Department. Clanton appeared before the Department’s supervisory board, pursuant to the operations policy and procedures manual on March 12, 2001. The supervisory board found Clan-ton guilty of acts of misconduct while off duty and suspended him without pay pending approval by the sheriff. Clanton appealed the supervisory board’s decision to the executive board. On March 23, 2001, the executive board suspended Clanton without pay for an indefinite period.

¶ 4. Clanton testified at the hearing on the Department’s motion that Sheriff Riley told him, “if you are found not guilty, dismissed, you did nothing wrong, you’ll have your job back with no loss of seniority or benefits.” Similarly, Janet Taylor, the jail administrator for the Sheriffs Department, testified in her deposition that Sheriff Riley told Clanton that he would be able to get his job back if he got the charges disposed of or dismissed. On the other hand, Sheriff Riley testified in his deposition that he told Clanton that he would get his job back if “he had not done anything wrong.”

¶ 5. The charges against Clanton were dismissed on September 13, 2002, for violation of the 270-day rule. The following day, September 14, 2002, Clanton went to the Sheriffs Department to resume his duties. However, upon arrival, Clanton was informed by Commander James Dunn that he was no longer employed with the Sheriffs Department. The Sheriffs Department contends that October 1, 2001, is the date that Clanton was officially terminated; however, Clanton argues that he was not terminated until September 14, 2002. It is undisputed that Clanton did not receive any notice of his termination before September 14, 2002.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. We apply a de novo standard of review to a lower court’s grant of summary judgment. Walker v. Whitfield Nursing Ctr., Inc., 931 So.2d 583, 587(¶ 11) (Miss.2006). A court shall grant summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact....” Id. at 587(¶ 12) (quoting M.R.C.P. 56(c)). “The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt.” Id. (citing Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990)). “If ... there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be forthwith entered in his favor. Otherwise, the motion should be denied.” Id. at 587-88(¶ 13).

1. Notice of Claim

¶ 7. The Sheriffs Department contends that Clanton failed to timely file his notice of claim prior to filing his complaint, as required by the Mississippi Tort Claims Act (MTCA). Mississippi Code Annotated section 11-46-11(1) (Rev.2002) provides:

After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a claim with the chief executive officer of the governmental entity.

“The notice of claim requirement, ‘imposes a condition precedent to the right to maintain an action.’ ” Gale v. Thomas, 759 So.2d 1150, 1159(¶ 33) (Miss.1999). The timely filing of the notice of claim is a jurisdictional prerequisite. Id.

¶ 8. We agree with Clanton that the date of his termination for purposes of the commencement of the statute of limitations was September 14, 2002, the day that he received notice of his termination. It is undisputed that Clanton was suspended without pay on March 23, 2001. It is also undisputed that Clanton had no knowledge of his termination prior to September 14, 2002. Thus, we find that the circuit court erred in determining that the statute of limitations on Clanton’s claims began to-run on October 1, 2001. In reaching this conclusion, we find that Clanton filed his suit within the statutorily prescribed period according to Mississippi Code Annotated section 11-46-11(3) (Rev.2002), which provides:

All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful, or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of - a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim....

¶ 9. However, notwithstanding this finding, we conclude that because Clanton filed his complaint prior to filing his notice of claim with the Sheriffs Department, his tort claims are barred and were properly dismissed by the trial court. In Gale, the Mississippi Supreme Court held that substantial compliance, rather than strict compliance, with the notice provisions of the Mississippi Tort Claims Act, is sufficient. Gale, 759 So.2d at 1159(¶ 33). However, the court also stated, “though substantial compliance with the notice provisions is sufficient, substantial compliance is not the same as, nor a substitute for, non-compliance.” Id. In the case at bar, Clanton filed his complaint on July 29, 2003, thirty-seven days before he filed his notice of claim with the Sheriffs Department. Thus, there is no evidence in the record to support a finding that Clanton substantially complied with the notice provisions. Therefore, we find that Clanton’s tort claims are procedurally barred due to his failure to comply with the notice provisions of the MTCA.

2. At-Will Employment

¶ 10. When there is no formal contract between an employer and an employee, containing a fixed term of employment, Mississippi follows the common law rule that an employment contract for an indefinite period may be terminated at the will of either party. Kelly v. Miss. Valley Gas Co., 397 So.2d 874, 874 (Miss.1981) (citing Montgomery Ward & Co. v. Skinner, 200 Miss. 44, 25 So.2d 572 (1946)). Although the DeSoto County Sheriffs Department does not have an employee handbook, the Sheriffs Department does abide by an operation and procedures manual. Clanton contends that the rules and regulations established by the Sheriffs Department for the discharge of deputy sheriffs create a binding contract, thus rendering the at-will employee doctrine inapplicable.

¶ 11. Clanton relies on the exception to the at-will employment doctrine established in Bobbitt v. Orchard Ltd., 603 So.2d 356 (Miss.1992). However, we find Clan-ton’s reliance on Bobbitt misplaced. In Bobbitt, the Mississippi Supreme Court held that an employer must follow the manual it publishes and disseminates to its employees when disciplining or discharging employees for misconduct specifically covered by the manual. Id. at 357. In Bobbitt, the court also noted that there was no disclaimer in the employee handbook and held that an employer is required to abide by its manual in the absence of a disclaimer. Id. at 362. However, the court stated in Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 848 (Miss.2001), “[w]here there is something in the employee handbook disclaiming a contract of employment, the rule developed in Bobbitt does not apply.” For this reason, we find Bobbitt distinguishable.

¶ 12. Clanton signed two documents, both acknowledging his status as an at-will employee. The document entitled “conditions of employment” states, “I understand and agree that my employment is for no definite period and may be terminated at any time. Further, I understand and agree that my employment, during the first year will be a probation period and can be terminated without a hearing.” In addition, the agreement states,

I understand that I have no right to status as an employee of DeSoto County; that my service in the capacity of an employee is strictly at my own will or the will of the sheriff; and that my connection with the DeSoto County Sheriffs Department may be terminated at any time by me or by the sheriff or his designee for good cause, bad cause, or for no reason at all.

¶ 13. Furthermore, the language of the operations policy and procedures manual clearly provides that, “[s]ince all members of the DeSoto County Sheriffs Department serve at the will and pleasure of the Sheriff, the Sheriff must be the final decision maker for all complaints against the department or any member or employee of the department.” Thus, clearly Sheriff Riley acted within his authority when he terminated Clanton.

¶ 14. Clanton further contends that Sheriff Riley was the only person with authority to terminate him. To support his argument, Clanton cites Mississippi Code Annotated section 19-25-19 (Rev.2003), which provides, “[e]very sheriff shall have the power to appoint one or more deputies to assist him in the carrying out of the duties of his office ... to remove them at pleasure, and to fix their compensation.” This Court notes that there is nothing in section 19-25-19, that prohibits the sheriff from using a designee to inform an employee of his termination. Commander Dunn, rather than Sheriff Riley, informed Clanton of his termination; however, Sheriff Riley stated in his deposition that his decision to terminate Clanton came as a result of Clanton’s indictment by the grand jury. Thus, because we find that Sheriff Riley is the person who in fact terminated Clanton, Clanton’s contention that Commander Dunn terminated him in violation of Mississippi Code Annotated section 19-25-19 is without merit. Therefore, the circuit judge did not err in determining that Clanton was an at-will employee.

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

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

      . We note at the outset that Clanton only sued the DeSoto County Sheriff’s Department and Sheriff James A. Riley and that all of the allegations against Sheriff Riley were made against him in his official capacity. Therefore, Clanton’s suit “was not properly filed under the Mississippi Tort Claims Act.” Brown v. Thompson, 927 So.2d 733, 736-37 (¶¶ 9, 12) (Miss.2006). However, since the Sheriff’s Department did not raise this issue in the court below or in its brief before this Court, we decline to dismiss this appeal, as we do not find that our jurisdiction is implicated by Clanton’s failure to sue Desoto County which should have been joined as a necessary party under the Mississippi Tort Claims Act.


author: LEE, P.J.,

text:
    Lee Andre WILLIAMS, Appellant v. STATE Of Mississippi, Appellee.
    No. 2005-CP-01104-COA.
    Court of Appeals of Mississippi.
    Feb. 20, 2007.
    Rehearing Denied Aug. 28, 2007.

      Lee Andre Williams, Appellant, pro se.
    Office of the Attorney General by Jeffrey a. Klingfuss, attorney for appellee.
    Before LEE, P.J., BARNES, and ISHEE, JJ.
   LEE, P.J.,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. On October 26, 2002, the Columbus Police Department responded to a shoplifting call at a local convenience store. After a fight ensued with the police officers, Lee Andre Williams fled the scene. Williams was later apprehended and taken to the Lowndes County Detention Center where he was searched. A small amount of cocaine was found in Williams’s pocket.

¶ 2. Williams was tried in Lowndes County Circuit Court and found guilty of possession of less than one-tenth gram of cocaine in violation of Mississippi Code Annotated Section 41-29-139 (Rev.2005). The State filed a motion to amend the indictment to sentence Williams as a habitual offender on May 20, 2003. On May 22, 2003, a hearing was held, and an order was entered allowing the amendment containing the habitual offender language. The court sentenced him to a life sentence as a habitual offender pursuant to Mississippi Code Annotated Section 99-19-83 (Rev. 2000). The previous charges upon which the habitual offender status was based included: a 1991 manslaughter conviction for which he was sentenced to serve eight years in the custody of the Mississippi Department of Corrections, a 1996 shoplifting conviction for which he was sentenced to serve three years in the MDOC, and a 1999 robbery conviction for which he was sentenced to serve one year in the custody of the MDOC. Williams served at least one year for each of the convictions.

¶ 3. Williams filed a motion for leave to appeal informa pauperis, and on June 25, 2003, he was once again brought before the court and advised of his right to appeal. Williams refused to sign-any documents reflecting his in forma pauperis status with respect to his right to appeal. When asked repeatedly if he desired to appeal Williams stood silent. .

¶ 4. On November 13, 2003, Williams filed a motion for JNOV or, in the alternative, motion for new trial and appointment of counsel alleging that he received an illegal life sentence. The trial judge, treating the motion as a motion for post-conviction relief, found that it was without merit and did not necessitate a hearing.

¶ 5. Williams now appeals to this Court based on the following issues: (1) the sentence imposed by the trial court was illegal and violated his constitutional rights; (2) the illegal sentence violated his due process rights; (3) the imposition of a life sentence as a habitual offender violates the United States Supreme Court cases Apprendi v. New Jersey and Blakely v. Washington; (4) the standards set in Ap-prendi and Blakely should be applied to this case; (5) the sentence imposed was illegal under Apprendi and Blakely; (6) the way in which the Mississippi habitual offender enhancement sentence system operates, not the labels it uses, is dispositive; and (7) the exceptional sentence imposed highlights the practical and structural concerns underlying Apprendi. Issues I and II will be discussed together as will Issues III through VII as each raises the same argument.

STANDARD OF REVIEW

¶ 6. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 8) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(116) (Miss.1999).

DISCUSSION

ISSUES I-II

¶7. Williams argues that his sentence of life is unconstitutional because it is out of proportion with the statutory sentence for the crime for which he was convicted. The charge for which Williams was on trial, possession of less than one-tenth gram of cocaine, when charged by indictment as a felony, is punishable by “imprisonment not less than one (1) nor more than four (4) years and a fine not more than Ten Thousand Dollars ($10,-000).” Miss.Code Ann. § 41-29-139(c)(1)(a) (Rev.2005). Williams fails to mention that he was given a life sentence because he was a habitual offender and not based on the possession conviction alone. The amendment to the indictment charging him as a habitual offender did not affect the substance of the crime for which he was charged, but only the sentencing. Section 99-19-83 states that:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 8. While Williams’s original indictment did not charge him as a habitual offender, indictments may be amended to charge a defendant as a habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement. Adams v. State, 772 So.2d 1010, 1020(¶ 46) (Miss.2000); URCCC 7.09. Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. Id.

¶ 9. Williams has not shown how he was surprised by the amendment or how his ability to prepare a defense was affected by the amendment. In fact, the record shows that Williams was warned before his jury trial that the indictment would be amended. Williams’s own counsel stated that she “explain[ed] it to Mr. Williams that the State was going to move to amend its indictment to allege that he was a habitual offender within the big habitual; that meaning he faces life in prison without possibility of parole.” The trial judge then explained Rule 7.09 to Williams for the record. Williams responded that he understood that the consequence was life without parole if he was found guilty on the drug charge and that he was ready to proceed with trial.

¶ 10. We find that Issues I and II are without merit.

ISSUES III-VII

¶ 11. In the remaining issues presented on appeal, Williams argues that the Mississippi habitual offender enhancement scheme violates the Supreme Court’s rulings in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

¶ 12. In Blakely, the United States Supreme Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.” Blakely, 542 U.S. at 301, 124 S.Ct. 2531. Apprendi held that criminal defendants are “indisputably entitle[d] ... to ‘a jury determination that [they are] guilty of every element of the crime ... charged, beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 477, 120 S.Ct. 2348. Williams argues that these cases require a jury to determine habitual offender status. However, each of the cited cases notes that prior convictions are a recognized exception to the requirement of jury determination of enhancing sentencing factors. Blakely states that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 542 U.S. at 301, 124 S.Ct. 2531 (citing Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added).

We find Issues III through VII to be without merit and, therefore, affirm.

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

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


author: CARLTON, J.,

text:
    Hubert Arnold STRICKLIN, Appellant, v. MEDEXPRESS OF MISSISSIPPI, LLC d/b/a Emergystat, Appellee.
    No. 2006-CA-00549-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2007.

      Michael D. Simmons, Jackson, Donna Marie Meehan, attorneys for appellant.
    Steven Craig Panter, Teresa Earley Harvey, Madison, attorneys for appellee.
   CARLTON, J.,

for the Court.

¶ 1. Hubert Arnold Stricklin filed suit against Emergystat, an ambulance service, for alleged injuries arising out of Emer-gystat’s transport of Stricklin from hospital to hospital for treatment of a heart attack. The trial court granted summary judgment in favor of Emergystat. Strick-lin appeals. We find no error and affirm.

FACTS

¶ 2. On July 7, 2003, between 8:00 p.m. and 10:00 p.m., Stricklin began experiencing chest pains. At noon the following day, he presented to Choctaw County Medical Center (CMC) in Ackerman, Mississippi for treatment. Stricklin was diagnosed with an acute anterior myocardial infaretion-a heart attack. The physicians at CMC treated and stabilized Stricklin for transfer to North Mississippi Medical Center (NMMC) in Tupelo, Mississippi, where he would receive further treatment. CMC contacted Emergystat to arrange transport of Stricklin seventy-five miles to NMMC. Emergystat arrived at CMC and began transporting Stricklin at 3:25 p.m.

¶ 3. Approximately twenty minutes en route, the ambulance overheated. Emer-gystat immediately contacted its dispatcher who sent another ambulance to complete the transfer. Emergystat’s records indicate that the second ambulance was dispatched within ten seconds of the breakdown and en route within one minute. The replacement ambulance arrived approximately one hour after the breakdown. Stricklin was quickly loaded into the replacement ambulance and transport was resumed within twelve minutes. Stricklin arrived at NMMC at 6:04 p.m.

¶ 4. Upon his arrival at NMMC, Strick-lin was treated by cardiologist Dr. Jimmy Johnson, who diagnosed Stricklin with a continuing infarction. Dr. Johnson performed a left heart catherization and a left ventriculogram. Thereafter, Dr. Roger Williams, a second cardiologist, performed an angioplasty and installed a stint to restore Stricklin’s blood flow. As a result of the heart attack, Stricklin lost a substantial amount of heart tissue.

¶ 5. Stricklin filed a complaint against Emergystat alleging various theories of negligence and breach of contract. Stricklin alleged that Emergystat was negligent for failing to transport him in a timely manner, failing to utilize properly working equipment, failing to render proper emergency care, and failing to adequately train and supervise its employees. Stricklin contended that the one-hour delay and the prolonged exposure to the July heat caused him to lose additional heart tissue. Emergystat filed a motion for summary judgment which was granted by the trial court on the basis that Stricklin failed to put forth sufficient evidence that Emergystat breached any duty or that he suffered any damage as the proximate result of any breach. All of Stricklin’s arguments on appeal urge us to determine the trial court erred in granting summary judgment to Emergystat.

STANDARD OF REVIEW

¶ 6. The grant or denial of a motion for summary judgment is reviewed de novo. McMillan v. Rodriguez, 823 So.2d 1173, 1176(¶ 9) (Miss.2002). Summary judgment is proper when “[the evidence in the record] show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” M.R.C.P. 56(c). The evidence is viewed in the light most favorable to the non-movant, who receives the benefit of all favorable inferences that may reasonably be drawn from the record. McMillan, 823 So.2d at 1176(¶ 9).

¶ 7. The movant has the burden to demonstrate that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Commercial Bank v. Hearn, 923 So.2d 202, 204(¶ 4) (Miss.2006) (citing M.R.C.P. 56). If the movant makes this demonstration, the non-movant, in order to avoid summary judgment, bears the burden to produce “probative evidence legally sufficient” to show that a genuine issue of material fact does exist. Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985).

DISCUSSION

1. Negligence

¶ 8. To prevail on a claim of negligence at trial, the plaintiff has the burden of proving (1) duty, (2) breach of duty, (3) causation, and (4) damages, by a preponderance of the evidence. Spoo v. T.L. Wallace Construction Co., 858 So.2d 199, 202(¶ 11) (Miss.App.2003) (citing Carpenter v. Nobile, 620 So.2d 961, 964 (Miss.1993)).

¶ 9. The trial court granted Emergys-tat’s motion for summary judgment on Stricklin’s negligence claims because it found that no genuine issue of material fact existed as to whether Emergystat breached any duty or that Stricklin suffered any damage as the proximate result thereof. Specifically, the trial court found that Stricklin failed to put forth evidence that Emergystat breached its duty of care in maintaining its ambulance. Rudd v. Montgomery Elevator Co., 618 So.2d 68, 72 (Miss.1993) (“All things mechanical are subject to breakdown upon occasion even with the best of maintenance.”). The trial court also found that, under the circumstances, Emergystat’s actions in promptly dispatching a replacement ambulance within one minute were diligently performed and did not amount to a breach of duty. Ultimately, the trial court found that, even if there was evidence that Emergystat breached the standard of care, there was no evidence from which a reasonable juror could conclude that Emergystat’s actions or inactions caused or contributed to Stricklin’s loss of heart tissue.

¶ 10. Stricklin argues that the trial court erred and asserts that Emergystat breached the standard of care by failing to dispatch an ambulance with working air conditioning. To this end, Stricklin contends that the inoperative air conditioning is “a malfunction indicative of mechanical problems” and thus Emergystat breached the standard of care. by knowingly dispatching a vehicle in disrepair.

¶ 11. To create a fact issue for the jury, it was necessary for Stricklin to put forth evidence that Emergystat was “[negligent in its maintenance and repair of the [ambulance] and that this negligence caused it to malfunction that day.” Id. at 72. Voluminous maintenance records showed that Emergystat routinely maintained the vehicle—approximately every 5,000 miles. Additionally, Stricklin offers no evidence or explanation as to how an inoperative air conditioner may have caused the mechanical breakdown. In light of Emergystat’s diligent efforts to ensure the reliability of its vehicle, we find, as did the trial judge, that Stricklin failed to offer sufficient evidence from which a reasonable juror could conclude that Em-ergystat breached its duty of care in the maintenance of its ambulance or that the breakdown was caused by negligence on the part of Emergystat. This argument is without merit.

¶ 12. Stricklin argues that Emer-gystat breached its duty of care by leaving him alone and failing to utilize a heart monitor during the transport and breakdown. Emergystat’s records of Stricklin’s transport reveal that a heart monitor was used. Thus, there is a factual dispute as to whether or not a heart monitor was used. However, Stricklin provided no evidence that his health condition suffered in any way from the alleged failure to use a heart monitor, i.e., that Emergystat’s alleged inaction proximately resulted in any injury to him. Therefore, the resolution of the factual issue of whether a heart monitor was utilized by Emergystat is not outcome determinative, and thus not material. Sherrod v. United States Fidelity & Guaranty Co., 518 So.2d 640, 643 (Miss.1987) (A fact is material if its resolution could be outcome determinative of the applicable substantive claims or defenses raised in the pleadings). This argument is without merit.

¶ 13. Stricklin argues that Emergystat breached its duty of care by failing to dispatch the nearest ambulance to complete the transfer. However, there is no evidence in the record that there was another ambulance closer to the scene of the breakdown than the ambulance that Emer-gystat sent. This issue is without merit.

¶ 14. As to damages, Stricklin argues that the trial court erred in finding that he could not prove that his injuries were proximately caused by Emergystat’s delay. He asserts that the delay caused by Emer-gystat’s conduct, coupled with the excessive heat proximately contributed to the loss of viable heart tissue. We find that the evidence does not support Stricklin’s claim.

¶ 15. The evidence reflects that the damage to Stricklin’s heart occurred during the onset of his heart attack the night before. Emergystat attached the deposition of Stricklin’s treating physician, Dr. Johnson, to its motion for summary judgment. Dr. Johnson testified that although it was “possible” that the delay and the summer heat caused Stricklin to lose “myocytes, a single heart muscle cell, a very very small amount,” he testified to a reasonable degree of medical certainty that “the majority of the infarct ... occurs at the point of vessel occlusion the first few hours.” Based on Stricklin’s family history and his delay in initially presenting to the emergency room, Dr. Johnson testified that the damage to Stricklin’s heart occurred prior to his transfer from hospital to hospital. Dr. Johnson’s medical opinion was that the vessel occlusion occurred “around eight to ten o’clock the night prior to admission.” Accordingly, we find that the trial court correctly determined that the evidence was insufficient to support a jury finding that Stricklin’s injuries were proximately caused by Emergystat’s conduct. This issue is without merit.

2. Breach of Contract

¶ 16. In granting summary judgment, the trial court held that Stricklin’s claim for breach of contract failed because there was no written contract between Stricklin and Emergystat. On appeal, Stricklin argues that the trial court erred in this finding. Stricklin contends that a contract of carriage was established when he put himself in the care of Emergystat with the intention of becoming a passenger and was accepted by Emergystat. Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 920(1115) (Miss.2000) (citing Gulf, M. & N.R. Co. v. Bradley, 167 Miss. 603, 609, 142 So. 493, 494 (1932)). Stricklin argues that, as a common carrier, Emergystat was required to exercise “[t]he highest degree of care and diligence for the safety of its passengers.” Id. (citing Goodwin v. Gulf Transp. Co., 453 So.2d 1035, 1036 (Miss.1984)).

¶ 17. In Anderson, the court explained that the passenger/common carrier relationship “[i]s dependant upon the existence of a contract of carriage, express or implied, between carrier and passenger, made by themselves or their respective agents; and this relation begins when a person puts himself in the care of the carrier or directly within its control with the bona fide intention of becoming a passenger and is accepted as such by the carrier.” Id.

¶ 18. To determine whether a contract of carriage exists between Emergystat and Stricklin would be an exercise of futility. Although the existence of a contract of carriage between Stricklin and Emergys-tat may give rise to a heightened duty of care, summary judgment would still be proper even if Emergystat were then held to this duty of care. As previously determined, Stricklin has made an insufficient showing of damages and the trial judge correctly found that no genuine issue of material fact exists as to damages. Therefore, we need not decide whether the common carrier relationship is applicable to the parties in the instant case.

¶ 19. It is elementary law that, in order to prevail on a claim of negligence, the plaintiff must prove not only that the defendant was negligent, but also that the defendant’s negligence proximately caused injury to the plaintiff. Rudd, 618 So.2d at 73. We find that Stricklin failed to provide evidence sufficient to enable a reasonable juror to conclude that Emergystat’s actions or inactions caused any injury to Stricklin. Summary judgment is properly granted where, as here, the non-movant fails to sufficiently establish an essential element of his case on which he bears the burden of proof at trial. Bullard v. Guardian Life Ins. Co. of America, 941 So.2d 812, 814(¶ 6) (Miss.2006). Although the transportation provided by Emergystat did not conform to ideal standards of timeliness and comfort, safe transportation to NMMC was nevertheless provided to Stricklin. Accordingly, we affirm the trial court’s entry of summary judgment in favor of Emergystat.

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

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

      . Stricklin alleged that Emergystat’s actions or inactions amounted to (1) negligence and gross negligence, (2) negligent hiring, training, supervision and retention, (3) vicarious liability, and (4) negligent infliction of emotional distress.


author: ISHEE, J.,

text:
    Brian A. CAMPBELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00959-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      Brian A. Campbell, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before MYERS, P.J., ISHEE, and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Brian A. Campbell pleaded guilty in the Circuit Court of Lowndes County to the felony charge of false pretense. On September 5, 2002, the court sentenced him to serve one year in the custody of the Mississippi Department of Corrections with two years of post-release supervision and ordered him to pay restitution in the amount of $64.81. The order stated the Mississippi sentence would run “consecutively to any other sentence.” Campbell, pro se, filed a motion for post-conviction relief on March 18, 2006, which the trial court summarily dismissed. Aggrieved, Campbell appeals. Finding no error, we affirm.

FACTS

¶ 2. Campbell was indicted by a Lowndes County grand jury for felony false pretense on May 14, 2001. On August 28, 2002, Campbell, assisted by appointed counsel, submitted a petition to enter a plea of guilty. In his petition, Campbell stated his counsel had advised him of the nature of the charge against him and of all possible defenses. He stated that he believed he had fully informed his counsel of all the facts and circumstances surrounding the charge and that his decision to enter a plea of guilty was free from any threats or promises or any outside influences. He further stated that he understood by pleading guilty he waived the following constitutional guarantees: the right to a speedy and public trial, the right to confront witnesses in open court, the right to compel production of evidence and/or witnesses on his behalf, the right to the assistance of counsel at all stages during the proceedings, the presumption of innocence, the right to testify on his behalf, and the right to a direct appeal. Campbell’s petition included that he understood the minimum sentence he could receive was a fine of $100 and the maximum penalty was three years imprisonment with a fine up to $1,000. Campbell’s petition stated that he understood that his sentence was ultimately up to the court; however, the district attorney recommended that Campbell receive a one year sentence in the custody of MDOC with two years of post-release supervision, that he pay restitution in the amount of $64.85, and pay a fine to be set by the court. The petition further stated that Campbell had been convicted of bank fraud and robbery. Lastly, Campbell’s petition stated that he was satisfied with the advice he received from his counsel and that he believed she had done all she could to assist him.

¶ 3. The court held a hearing on the petition and, on September 5, 2002, entered a sentencing order adjudicating Campbell guilty of the felony charge of false pretense and sentenced him to a term of one year in the custody of MDOC with two years of post-release supervision. The order stated that the court accepted Campbell’s plea of guilty and, after sufficient interrogation, was satisfied that the plea was made voluntarily, intelligently, and understandingly. The court found that Campbell understood the consequences of entering a plea of guilty to the charge. The court determined that he fully understood the nature of the charge against him and that he understood the maximum penalty the court could impose. Furthermore, the court stated that it was not bound by any agreement between Campbell and his attorney and/or the State. The court found that Campbell understood by entering a guilty plea he would have no right to a direct appeal. The order stated that Campbell’s attorney had fully advised him of his constitutional rights and that Campbell was satisfied with her representation. The order further stated, “this sentence is to run consecutive to any other sentence.”

¶ 4. On March 18, 2006, Campbell filed a motion for post-conviction relief asserting that his plea was not voluntary and that he received ineffective assistance of counsel. Campbell asked the trial court to “vacate conviction and sentence or order the State to preform as agreed in the plea agreement terms by running the sentence from October 20, 2003, date of expiration of the Kansas federal sentence.” Essentially, Campbell argued that the State violated its plea agreement when MDOC did not take custody of him upon his release from the Kansas penitentiary and, therefore, he would not have entered a guilty plea had he known that Mississippi would not immediately take custody of him. The trial court summarily dismissed his motion, stating, “the court finds that when a state places a detainer upon a defendant, that state basically has to get in line behind whatever states may already have a de-tainer placed on defendant....” Campbell asserts the following issues on appeal: (1) the trial court erred by summarily denying his post-conviction motion without consideration of the claims for relief or ordering the State to file an answer and (2) the trial court erred in determining that he was not entitled to post-conviction relief due to the detainer issue.

STANDARD OF REVIEW

¶ 5. In reviewing the trial court’s decision to dismiss a motion for post-conviction relief, we will reverse if the movant can substantially show that the claim is procedurally viable due to a denial of a state or federal right. Gaston v. State, 922 So.2d 841, 843(¶ 5) (Miss.Ct.App.2006) (citing Young v. State, 731 So.2d 1120, 1122(¶ 9) (Miss.1999)). Furthermore, we will not reverse absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002) (citing Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999)). However, where questions of law are raised the applicable standard of review is de novo. Pace v. State, 770 So.2d 1052, 1053(¶4) (Miss.Ct.App.2000).

ISSUES AND ANALYSIS

¶ 6. We are faced at the outset with a question of law as to whether this Court has jurisdiction over Campbell’s motion for post-conviction relief. Mississippi Code Annotated section 99-39-5(2) (Rev.2006), provides in pertinent part that in the case of a guilty plea, a prisoner must make a motion for relief within three years of the entry of judgment of the conviction. Excepted from the three-year statute of limitations are eases which the prisoner can show either of the following: (1) that there has been an intervening decision of either the Mississippi or United States Supreme Court that would have adversely affected the outcome of the conviction or sentence, (2) that the prisoner has newly discovered evidence that, had such evidence been introduced at trial, the outcome would have been different, or (3) that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Id.; Clark v. State, 875 So.2d 1130, 1132(¶ 10) (Miss.Ct.App.2004). Additionally, pursuant to section 99-39-27(9), a second application for post-conviction relief is barred by a previous denial or dismissal of an application for relief. Miss.Code Ann. 99-39-27(9) (Rev.2006); Smith v. State, 922 So.2d 43, 45(¶ 4) (Miss.Ct.App.2006).

¶ 7. The State argues for the first time on appeal that Campbell’s motion is time barred. We agree with the State’s argument. The trial court entered the sentencing order on September 5, 2002; therefore, Campbell had three years to file for post-conviction relief. Arguably, Campbell’s first motion for post-conviction relief was filed on March 18, 2006, almost seven months after the three-year limitation had passed. Campbell argues in his reply brief that the trial court recognized his motion to be an exception to the three-year statute of limitation, and further ruled erroneously on his motion. Nothing in the trial court’s order indicates that Campbell’s case was excepted from the three-year filing limitation. Additionally, the record is void of any support for Campbell’s contention that a plea agreement existed which stated the Mississippi sentence would begin immediately following his completion of the federal sentence in Kansas. We find this motion to be procedurally barred from our review because it was not timely filed pursuant to section 99-39-5(2).

¶ 8. Furthermore, the record lends this Court to find that the March 18, 2006 motion for relief was successive to the letter dated September 12, 2005. The trial court’s order on December 7, 2005 dismissed the “post-conviction matter ... motion to remove detainer.” Therefore, this motion is procedurally barred on the basis that it is successive in nature, pursuant to section 99-39-27(9).

¶ 9. In arguendo, we find that both of Campbell’s assignments of error are without merit. There is nothing in the record to support Campbell’s assertion that the State has violated any plea agreement; moreover, there is no evidence showing that such an agreement existed. Campbell argues that pursuant to “a plea agreement” Mississippi was to take him into custody upon the completion of the Kansas federal sentence, consequently, on October 20, 2003. However, the trial court’s order only specifies that the Mississippi sentence is to run consecutive to “any other sentences.” Finding that there is no evidence of a plea agreement, we find there is no evidence to support Campbell’s basis for either of the issues he has asked this Court to review. Notwithstanding that Campbell’s motion is procedurally barred, we further find that the trial court did not err in summarily dismissing the motion, nor did it err by not granting post-conviction relief based on the detainer issue.

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

LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND CARLTON, JJ., CONCUR. KING, C.J. AND ROBERTS, J., CONCUR IN RESULT ONLY. IRVING, J., CONCURS IN PART AND IN THE RESULT.

      . The petition states “bank fraud (U.S.), robbery.” Campbell is presently incarcerated in the federal penitentiary located in Atlanta, Georgia. At the time of the sentencing order, Campbell was serving an existing federal sentence in Kansas.

      . The record did not contain a transcript of the plea hearing.

      . The record contains a letter to "Lowndes County Circuit Court, Administrative Judge,” dated September 12, 2005, in which Campbell requested that "the Mississippi detainer be removed ..., because the state of Mississippi was supposed to pick me up, but did not. I was taken into federal custody related to an Alabama federal criminal case ... consequently, received another federal sentence. ...” In a letter dated October 11, 2005, Campbell asked that the Court not treat the September 12 letter as a PCR motion. The Circuit Court of Lowdnes County entered an order on December 7, 2005, dismissing the "post-conviction matter in which the petitioner has filed a motion to remove detainer” stating the court “does not even have knowledge of individual detainers” and that Campbell should apply to the MDOC regarding any detainer issue.


author: ROBERTS, J.,

text:
    Danny BROWN, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CA-01342-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.

      William E. Goodwin, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before LEE, P.J., IRVING, CHANDLER and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. Danny Brown entered into a plea agreement with the State and subsequently pled guilty to armed robbery, conspiracy to commit armed robbery, and aggravated assault. Following the trial court sentencing Brown in excess of the State’s recommended sentence, Brown filed a motion for post-conviction collateral relief with the Circuit Court of Pike County. The trial court denied Brown’s motion, and this appeal followed.

FACTS AND PROCEDURAL HISTORY

¶2. Brown and two accomplices were indicted for burglary of a dwelling (Count I), armed robbery (Count II), conspiracy to commit armed robbery (Count III), and aggravated assault (Count IV) by the grand jury of Pike County. The State presented Brown with a written plea bargain, dated March 11, 2003, entitled “Recommended Sentence” in which it agreed to nol pros Count I, and recommend concurrent sentences for the remaining counts to include a five year sentence for Count III and a combined twenty year sentence, twelve suspended, for Counts II and IV, as well as a $7,000 fíne and other restitution. In exchange, it was stipulated that Brown was to truthfully testify against one of his co-defendants, Curtis Hardin. Written in at the bottom of the agreement was the phrase, “offer expires April 29, 2003.”

¶ 3. Brown subsequently pled guilty in the Circuit Court of Pike County on June 13, 2003, however sentencing was delayed in order for the trial judge to receive and review Brown’s pre-sentence investigation report. Brown’s sentencing hearing was held on June 23, 2003. At its conclusion, the trial judge sentenced Brown into the custody of the Mississippi Department of Corrections for forty years on Count II, five years on Count III, and ten years on Count IV with all counts running consecutively. Further, Brown was ordered to serve the first fifteen years on Count II with the remaining twenty-five years to be served on postrelease supervision, serve the first one year on Count III with the remaining four years to be served on post-release supervision, and serve the first five years on Count III with the remaining five years to be served on post-release supervision. Brown was also ordered to pay additional fines and costs.

¶ 4. Brown then filed his motion to vacate conviction and sentence on June 5, 2006, pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to -29 (Rev. 2000). Within his motion, Brown claimed that his plea agreement was breached and that he was coerced into pleading guilty. Additionally, he claims his sentencing counsel was ineffective in not objecting to the trial court’s sentence. In a July 3, 2005 order, the trial court summarily denied Brown’s motion. This appeal followed.

ANALYSIS

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT AN EVIDEN-TIARY HEARING.

¶ 5. Brown argues that he was entitled to an evidentiary hearing on his claim that he was denied the benefit of his bargain with the prosecution. A trial court enjoys wide discretion in determining whether to grant an evidentiary hearing. Hebert v. State, 864 So.2d 1041(¶ 11) (Miss.Ct.App.2004). As such, “not every motion for post-conviction relief filed in the trial court must be afforded a full adversarial hearing.” Id. “A trial judge may disregard the assertions made by a post-conviction movant where, as here, they are substantially contradicted by the court record of proceedings that led up to the entry of a judgment of guilt.” Id. Finally, “[i]f a prisoner’s motion for post-conviction relief does not contain any affidavits, other than the prisoner’s own to support the prisoner’s allegations, then the motion may be dismissed.” Edwards v. State, 796 So.2d 1040(¶ 5) (Miss.Ct.App.2001).

¶ 6. While the “Recommended Sentence” agreed to by the prosecution and Brown does contain a requirement that Brown testify against Hardin, there is no indication in the record that Brown did so other than the unsupported statement in Brown’s brief that “Brown fulfilled his obligations under the plea agreement ... by way of an orally recorded statement prior to sentencing.” The record contains no affidavit from Brown’s trial attorney, the prosecutor, or anyone else alleging that Brown completed this portion of the agreement between him and the State. Additionally, during his plea hearing on June 13, 2003, there is no mention of this additional servitude on Brown’s part. In fact, Brown pled guilty during a combined plea hearing involving three other defendants, one of whom was Hardin. This alone would indicate that Brown’s alleged testimony concerning Hardin was not given. In fact, it is apparent from the record that both Brown and Hardin received the same plea agreement from the State. Moreover, the record indicates that when the trial judge accepted the plea agreements oh two of the four defendants who were standing before him, but refused to accept Brown and Hardin’s plea agreements and ordered a pre-sentence investigation, Brown stood silently and did not complain.

¶ 7. The plea hearing shows that Brown was informed of the minimum and maximum sentence each of his remaining three counts carried, and expressed his understanding that his guilty plea placed him into a situation in which he could be sentenced to the maximum as the court was not a party to any plea bargain he may have entered with the State. Furthermore, when asked if anyone had threatened, abused, or promised him anything to cause his guilty plea, Brown responded in the negative. Therefore, without the benefit of affidavits by those with personal knowledge testifying to the issue of whether Brown did fulfill some additional obligation, or any hint in the record to such a fact, we cannot say that the trial court abused his discretion in denying Brown’s motion without granting an evidentiary hearing. As such, this issue is without merit.

II. WHETHER BROWN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING HIS SENTENCING.

¶8. Brown next argues that his trial attorney was ineffective in that he did not object to the trial court’s sentence. A claim of ineffective assistance of counsel must be evaluated under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hannah v. State, 943 So.2d 20(¶ 6) (Miss.2006). First, it must be shown that counsel’s representation fell below an objective standard of reasonableness. Id. Once this is satisfied the defendant must then demonstrate there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id.

¶ 9. Brown essentially argues that his trial attorney was ineffective as a result of his failure to bring to the sentencing court’s attention the facts of his plea agreement. However, the lower court was fully apprised of the State recommendation as to Brown. As far as his trial attorney informing the lower court of Brown’s compliance with some additional requirement of the plea bargain, as noted in our resolution of issue I, there is nothing in the record that would indicate that Brown fulfilled this requirement to testify against Hardin. As such, we can hardly say that Brown’s attorney was ineffective in failing to argue facts of which there is no proof. Therefore, this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.


author: GRIFFIS, J.,

text:
    Alton JONES and Genevieve C. Jones, Appellants, v. James Abner GRESHAM and Nora Ruth GRESHAM, Appellees.
    No. 2006-CA-00653-COA.
    Court of Appeals of Mississippi.
    Aug. 21, 2007.
    Robert Sneed Laher, Corinth, attorney for appellants.
    Thomas D. McDonough, New Albany, attorney for appellees.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. James Abner (“Abner”) and Nora Ruth Gresham (collectively, the “Gres-hams”) brought this action to quiet title against their neighbors Alton Lynn (“Lynn”) and Genevieve C. Jones (collectively, the “Joneses”) after a dispute arose as to ownership of a driveway. In the alternative, the Greshams asked for title by adverse possession or for a prescriptive easement. The chancellor held the driveway was part of the Greshams’ property. On appeal, the Joneses argue that the chancellor erred in relying on the Gres-hams’ survey. We find no error and affirm.

FACTS

¶ 2. In 1991, the Greshams purchased an interest in Lot 1221 of the Lake Arrowhead Subdivision in Myrtle, Union County. The next year, the couple bought the remaining interest from their co-tenant. Lot 1221 is located at the end of a cul-de-sac on Lake Breeze Drive. The property is roughly half an acre. It is bounded on the north by Lake Arrowhead, on the east by Lot 1222, on the south by the cul-de-sac, on the southwest by Lot 1219, and on the west by the Lake Arrowhead levee. On the Greshams’ lot is a cabin with a deck. There is also a small pier. The Greshams use the cabin as a vacation home, which they visit a couple of times a month. To the right of the cabin is a gravel driveway (“the disputed driveway”), which runs from Lake Breeze Drive past the Greshams’ cabin, although not all the way to the lake. There are steps from the disputed driveway to the Greshams’ cabin.

¶ 3. At the time the Greshams purchased the land, Lot 1222 was owned by Mary Sue Parrish. Lot 1222 is approximately half an acre, and it is bounded on the north and east by Lake Arrowhead, on the southeast by Lot 1223, on the southwest by the cul-de-sac, and on the west by the Greshams’ lot. There is a separate gravel driveway to the right of the disputed driveway. It is undisputed that this separate driveway belongs to Lot 1222. At the time, the separate driveway led to Parrish’s trailer. There is no longer a trailer or any type of residence on Lot 1222.

¶4. Both driveways fork off from the same point on the cul de sac. Between the two driveways is grass and a group of trees. Parrish and Billy Williams, owner of lot 1223, used the separate driveway. The Greshams used the disputed driveway. Sometimes Parrish and the Greshams would let each other turn around and exit from the others’ driveways. Abner, Parrish’s son, and Williams jointly constructed gates on the driveways. They placed a metal post between the two driveways where they believed the property line lay, and a metal post to the left of the disputed driveway and the right of the separate driveway. From these posts, they attached two separate gates, one leading to each driveway.

¶ 5. In July 2001, the Joneses purchased Parrish’s lot, along with eleven other non-contiguous lots. Lynn removed both gates and had a bulldozer ready to “reconstruct the driveway.” After Abner told him that he could not give him permission to do that, Lynn told the Greshams they had two weeks to get a survey done to prove they owned the driveway. The next day, Lynn constructed a barbed wire fence that ran down the left side of the disputed driveway, all the way down to the lake. This moved the Greshams’ eastern boundary seven feet to the west. It reduced the Greshams’ cul-de-sac frontage, which made it more difficult to get cars in and out of their property. It also prevented the Greshams from driving their truck and boat to the water, because their deck ended only a few feet from the disputed driveway.

¶ 6. The Greshams sued the Joneses to quiet title. The chancellor was provided with two competing surveys. The Gres-hams’ expert witness produced his survey and testified the Greshams owned the driveway. The Joneses’ expert witness testified that his survey indicated the Joneses owned driveway. The chancellor relied on the Greshams’ expert and entered a judgment favorable to the Gres-hams. Aggrieved, the Joneses appeal.

STANDARD OF REVIEW

¶ 7. A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. Sanderson v. Sanderson, 824 So.2d 623, 625(¶ 8) (Miss.2002). This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 625-26(¶ 8).

¶ 8. The chancellor, by her presence in the courtroom, is best equipped to listen to the witnesses, observe their demeanor, and determine the credibility of the witnesses and what weight ought to be ascribed to the evidence given by those witnesses. Howard v. Fulcher, 806 So.2d 328, 332(¶ 15) (Miss.Ct.App.2002). “It is necessarily the case that, when conflicting testimony on the same issue is presented, the chancellor sitting as trier of fact must determine which version he finds more credible.” Id.

ANALYSIS

¶ 9. The sole issue in this case is whether the chancellor erred in relying on one survey over the other. The Joneses argue that the chancellor should not have relied upon the Greshams’ survey because it contained error. The Greshams counter that the chancellor merely made a credibility determination, and there is substantial credible evidence to support her decision.

¶ 10. It is not unusual for a chancellor to be presented with conflicting evidence of a boundary line, including two competing surveys that reach different conclusions. See, e.g., Hulbert v. Fayard, 230 Miss. 1, 5, 92 So.2d 247, 249 (1957); Wicker v. Harvey, 937 So.2d 983, 988-89 (¶¶ 11-16) (Miss.Ct.App.2006). For example, in Hulbert, the Fayards sued the Hulberts to determine where the boundary line between their two properties lay. Hulbert, 230 Miss, at 5, 92 So.2d at 249. The Fayards presented testimony by a survey- or that supported their contention. Id. Likewise, the Hulberts presented a surveyor in support of their contention. Id. at 6, 92 So.2d at 249. The chancellor gave credence to the Fayards’ surveyor and established the boundary line accordingly. Id. at 9, 92 So.2d at 251. The court held the chancellor did not manifestly err. Id. This was because the lines established by the Hulberts’ survey did not conform to the long recognized lines of occupancy nor with the physical objects on the ground. Id. at 10, 92 So.2d at 251. On the other hand, the Fayards’ survey followed closely the lines of occupation which had been accepted for years, followed the calls of the deed, and was made with reference to fixed and established points with more definiteness than the Hulberts’ survey. Id., 92 So.2d at 251-52.

¶ 11. We recently examined a similar issue in Wicker. It involved a land line dispute, and this Court was asked whether a chancellor was bound to accept one party’s evidence over the other party’s evidence. Wicker, 937 So.2d at 991 (¶ 23). The deeds established that the boundary between the neighbors was an old gravel road, that apparently did not exist any more. Id. at 987(¶ 9). Wicker presented lay witnesses and a surveyor who established that the boundary line was at the existing Old Holmesville Road. Id. at 988(¶ 12), 990(¶ 20). His theory was that the old gravel road was one and the same with the new road. Id. at 990(¶ 20). Harvey presented lay evidence that the old gravel road used to exist south of the new road. His witnesses further testified that the boundary was marked by painted trees. Id. at 988-89 (¶¶ 14-15). The chancellor visited the property and found the red painted lines as well as other physical evidence corroborating the red painted line as the true boundary. Id. at 989(¶ 16). The chancellor held the red painted lines established the true boundary. Id. at (¶ 18). This Court held that the chancellor was not bound to accept Wicker’s evidence over Harvey’s. Id. at 991(¶ 23). Indeed, we held there was substantial credible evidence that the red line was the accepted boundary line. Id. at (¶ 24).

¶ 12. These cases instruct our decision here. It is for the chancellor to determine the credibility of the competing surveys, and we must affirm as long as the decision is supported by substantial credible evidence. The chancellor found:

Gresham asserted his property is accessed by the driveway that has been in existence for more than twenty years. The credible proof was that the driveway was also used by Gresham’s predecessor in title. At some point a number of years ago steps were constructed at the point where the driveway reaches Gresham’s .cabin. The Greshams are dependent upon the driveway for ingress and egress to their property, and no other driveway exists on their property. It is also pertinent that ... another driveway exists to access the Jones property.
This Court finds that the driveway in dispute is situated on the property of Gresham and that none of the same is located on the property of Jones. Both parties offered competent expert testimony of surveyors regarding the location of the boundary line between their lots. However, the Court gave particular weight to Hubert Foley’s greater familiarity with the location of the boundary lines in the subdivision as the original surveyor. Additionally, Foley’s survey is tied to an established section corner and accurately retraces the original plat. Accordingly, Foley’s survey based thereon, received herein as Exhibit 1 (6/6/05), is representative of the location of the boundary line between the lots and establishes that the driveway in dispute is clearly within the boundary line of Lot 1221, and thus on the property of Gresham.
Accordingly, based on the applicable law, the credible proof and the Court’s viewing of the property, the Court finds that the driveway in dispute is located within the boundary of Lot 1221 of Lake Arrowhead and that Gresham is record title holder of that Lot and driveway.

¶ 13. There is substantial credible evidence to support the chancellor’s finding. The deeds to both parcels of property merely describe each by lot number located in the Lake Arrowhead Subdivision. The subdivision plat is on file in the chancery clerk’s office.

¶ 14. Hubert Foley was the surveyor who testified on behalf of the Greshams. He was the original surveyor who platted the subdivision in the 1960s. As his starting point, he used an established government corner which was in existence at the time of the original survey which established the boundary lines. He testified the original corners and boundaries were marked by iron pins and old iron bed posts. When Foley ran his recent survey, it coordinated with these original markers. In fact, some of them lined up perfectly with his survey and the rest came within two or three feet of his recent survey. One of these old markers was on the very boundary line that Foley contended was the Gresham/Jones line. Foley concluded from his survey that the boundary line between the Greshams’ and Joneses’ lots runs on the east edge of the disputed driveway. Therefore, the entire disputed driveway lay within the Greshams’ lot.

¶ 15. On the other hand, the Joneses’ surveyor used as a starting point a forestry monument that was not in existence at the time the subdivision was originally plotted out. His survey also did not coordinate with the original iron pins. According to the Joneses’ survey, some of the iron pins should have been out in the road. In fact, on the ground the iron pins were near the side of the road. The chancellor was justified in giving more weight to Foley’s survey.

¶ 16. Foley’s survey also coordinated with the lay testimony of the Gres-hams and Parrish. Parrish and the Gres-hams testified as to boundary markers they had placed over the years to show their understanding of where the boundary line lay. For one thing, the two different driveways themselves were placed by the predecessors in title. Secondly, Nora and Parrish jointly planted trees along the area where they believed the boundary was. In particular, there was a plum tree they said was planted on the line on Parrish’s side. There were also concrete blocks Parrish and Abner set out by the lake to prevent erosion. Parrish testified she placed the larger blocks on her side and Abner used the smaller blocks on his side. Abner also testified that he and Parrish’s son placed the gates’ middle post on the boundary line. As the photographs and witnessed indicated, Foley’s survey more closely follows these items and thus resembles the long understanding of the predecessors in title. We note that, “Acquiescence in a wrong boundary line will not establish it as the true line, but such acquiescence for a long period of time is evidence that such line is the true line.” Hulbert, 230 Miss. at 10, 92 So.2d at 251. “[I]f continued for a sufficient length of time, it will afford a conclusive presumption that the line thus acquiesced in is the true boundary line.” Wicker, 937 So.2d at 991-92(¶ 25).

¶ 17. Nevertheless the Joneses argue that the original plat did not close. However, Foley was asked this exact question in cross-examination:

Q. Okay. And is there any way to get an accurate survey off of that original plat if it does not close?
A. Yes, sir.
Q. How is that?
A. By relocating the original corners and measuring them back in.
A. The relocation of these two lots is going to be dependent upon the relocation of the original corners and of any found monuments nearby. And that’s the way it was reestablished.

Thus, the defect did not render Foley’s testimony unreliable.

¶ 18. We find that there was substantial credible evidence to support the chancellor’s decision. Foley’s survey coordinated with the original plat, original monuments, with the evidence on the ground, and with the long accepted understanding of the landowners. Accordingly, we affirm.

¶ 19. THE JUDGMENT OF THE CHANCERY COURT OF UNION COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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