source: Caselaw Access Project

author:
MYERS, P.J.,
      ROBERTS, J.,

license: Public Domain

text:
    GREENWOOD PUBLIC SCHOOL DISTRICT, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2006-CC-00212-COA.
    Court of Appeals of Mississippi.
    Feb. 27, 2007.
    Rehearing Denied June 12, 2007.

      Richard A. Oakes, Greenwood, attorney for appellant.
    Albert Bozeman White, Madison, attorney for appellee.
   MYERS, P.J.,

for the Court.

¶ 1. The Greenwood Public School District (District) seeks review of the judgment of the Circuit Court of Leflore County affirming the decision of the Mississippi Department of Employment Security (MDES). MDES found that the District had failed to prove that a claimant had voluntarily resigned or had been discharged for misconduct, thereby affirming an award of unemployment benefits to the claimant. Finding that the Commission’s order is supported by substantial evidence, we affirm.

STATEMENT OF THE CASE

¶ 2. Rodney Major was employed as a physical education teacher and head basketball coach by the District from 2001 until 2005. Major taught under a one-year renewable contract. Nearing the end of the 2005 school year, Major was approached by the principal and informed that his contract would not be renewed for the 2005-06 school year. The District decided not to renew Major’s contract because it was unsatisfied with the direction of the basketball program and the lack of student participation in the physical education program. At this time, the principal gave Major the option of resigning or being terminated and encouraged Major to resign, advising him that resignation would afford him better future employment opportunities. Major chose to finish the remainder of the 2004-05 school year, and resigned prior to the beginning of the 2005-06 school year. He subsequently filed for unemployment benefits. Major was awarded unemployment benefits and the District appealed, asserting first that Major voluntarily quit or, in the alternative, that Major was discharged due to misconduct and was not entitled to benefits. Following a telephonic hearing, the administrative appeals officer (AAO) affirmed the decision to award unemployment benefits. The District continued its appeal, however, the Board of Review affirmed the award of unemployment benefits, adopting findings of fact made by the AAO, and that decision was affirmed by the Leflore County Circuit Court. The District now appeals to this Court, seeking review of the decision of the lower court, urging us to find that Major voluntarily discontinued his employment and that he is unavailable for work, so that he is not entitled to unemployment benefits.

STANDARD OF REVIEW

¶ 3. We find our standard for reviewing the findings and decisions of the MDES in Mississippi Code Annotated section 71-5-531 (Supp.2006): “In any judicial proceedings under this section, the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” “[WJhere there is the required substantial evidence, [appellate courts have] no authority to reverse the circuit court’s affirmance of the decision of the Board of Review.” Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 34 (Miss.1992). We must not review the facts and assign our own weight to them, but rather we defer to the judgment of the agency. Broome v. Miss. Employment Sec. Comm’n, 921 So.2d 334, 337(1112) (Miss.2006).

LEGAL ANALYSIS

¶ 4. Mississippi unemployment compensation law provides that one who voluntarily resigns without good cause from employment forgoes his or her eligibility to receive unemployment compensation. Miss.Code Ann. § 71-5-513(A)(l)(a) (Supp. 2006). However, if a situation arises where the former employee can establish that he or she left the employment based upon good cause, under a reasonable belief that he or she has been feed, the Mississippi Supreme Court has held that this is not classified as “voluntary termination” of employment within the meaning of the statute. Huckabee v. Miss. Employment Sec. Comm’n, 735 So.2d 390, 397(¶25) (Miss.1999).

¶ 5. The AAO found, and the Board of Review as well as the Circuit Court summarily affirmed, that the District initiated the separation of employment and that the District failed to show that the discharge was a result of Major’s misconduct. The District argues that the lower court erred in awarding Major unemployment benefits and asserts two positions in support of its argument. First, the District argues that Major voluntarily ceased his employment with the District, thereby precluding him from drawing unemployment benefits. Second, the District argues that even if we find that Major was discharged, the discharge was based on Major’s misconduct, thereby eliminating his eligibility to receive unemployment benefits. MDES argues that because Major resigned in lieu of being discharged for unsatisfactory job performance, he, therefore, did not quit his employment, nor was he discharged for misconduct. MDES asserts that because Major was discharged within the meaning of Mississippi Employment Security Law, Major is eligible to receive unemployment benefits.

¶ 6. Our supreme court has dealt with a similar issue in the opinion of Mississippi Employment Sec. Comm’n v. Philadelphia Mun. Separate Sch. Dist., 437 So.2d 388, 399 (Miss.1983). In that case, the court discussed the issue of a teacher’s contract not being renewed and the implications of the non-renewal as effecting eligibility for unemployment compensation benefits. The court stated:

An employee is as effectively removed from employment, whether he is fired or at the end of his contract term not rehired. We hold that a school teacher has been “discharged” within the meaning and contemplation of the Mississippi Employment Security Law whenever, within the meaning and contemplation of the Mississippi School Employment Procedures Law, he or she has been either fired or simply not reemployed. If the school district can demonstrate that the teacher’s non-reemployment was because of misconduct connected with his or her work, the teacher is ineligible for benefits....

Id. Following the lead of our supreme court in Huckabee and Philadelphia Mun. Separate Sch. Dish, we find that Major was “discharged” within the meaning of the statute.

¶ 7. As a consequence of our finding that Major was discharged, we must now determine whether the lower court erred in holding that his discharge was not based on misconduct. The term “misconduct” has been defined by our unemployment benefit case law as “conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982). “Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered ‘misconduct’ within the meaning of the statute.” Id.

¶ 8. At the hearing before the AAO, a representative of the District testified that Major’s contract was not renewed based upon dissatisfaction with the direction of the basketball program and with the overall handling of the physical education program. The AAO found that these cited reasons for the non-renewal of Major’s contract did not amount to the requisite misconduct necessary to preclude unemployment benefits. At most, the District viewed Major’s job performance unsatisfactory so as to justify their non-renewal. An employer’s dissatisfaction with an employee’s job performance does not amount to a showing of misconduct so as to disqualify the employee from receiving unemployment benefits. Our review of the record concludes that the AAO, and subsequently the Board of Review and the circuit court had substantial evidence before them to find that Major’s discharge was not due to his misconduct. These findings are supported by substantial evidence and therefore it would be error for this Court to disturb such findings.

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

KING, C.J., LEE, P.J., IRVING, CHANDLER AND ISHEE, JJ., CONCUR. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, BARNES AND CARLTON, JJ.

ROBERTS, J.,

Dissenting:

¶ 10. After examining the record of the case sub judice, I cannot agree with the majority that the Commission’s order is supported by substantial evidence. As such, I must respectfully dissent.

¶ 11. The central issue in the instant case is whether Major voluntarily resigned or if he was somehow discharged from his positions as physical education teacher and basketball coach. This determination is vital as it determines who carries the burden of proof during a hearing to determine unemployment benefits eligibility. Miss. Code Ann. § 71-5-513 A(l)(c) (Supp.2006). The category of separation, be it a voluntary quit or discharge, is a question of fact for the Mississippi Employment Security Commission to determine. Lafoe v. Mississippi Employment Sec. Comm’n, 909 So.2d 115(¶ 5) (Miss.Ct.App.2005). However, a reviewing court is not bound by such a finding if it is not supported by substantial evidence. Gilbreath v. Mississippi Employment Sec. Comm’n, 910 So.2d 682(¶ 13) (Miss.Ct.App.2005); Miss. Code Ann. § 71-5-531 (Supp.2006). “Substantial evidence” has been defined as evidence able to support a reasonable conclusion and evidence “reasonable minds might accept as adequate to support a conclusion.” Gilbreath, 910 So.2d at (¶ 13).

¶ 12. The Administrative Appeals Officer’s, findings of fact state that the employer, Greenwood School District, “decided to non-renew the claimant’s contract based upon performance issues” and that Major “was given the opportunity to resign in lieu of discharge.” Based on these and other findings of fact, the AAO stated that “[t]he facts in this case show the claimant resigned in lieu of being discharged” and it was his opinion “that the employer initiated separation from employment.” A review of applicable school law and precedent cited by the majority shows that the findings of the AAO are not supported by substantial evidence.

¶ 13. No later than April 1, the principal of each school is required to recommend to the superintendent of the local school district those teachers to be employed by the school. Miss.Code Ann. § 37-9-17(1) (Supp.2006). If a school district decides not to recommend an employee receive a contract for a successive year “written notice of the proposed nonreem-ployment stating the reasons for the proposed nonreemployment shall be given.” Miss.Code Ann. § 37-9-105 (Supp.2006) (emphasis added). Once an employee receives a notice of proposed nonreemployment, he or she has ten days to request a hearing before the school board to challenge those reasons stated by the school district for his or her nonreemployment. Miss.Code Ann. § 37-9-109 (Rev.2001). Any employee aggrieved by the decision of the school board may appeal to chancery court and, if at odds with the decision of the chancery court, may further appeal to the supreme court. Miss.Code Ann. § 37-9-113 (Rev.2001). The majority cites Mississippi Employment Sec. Comm’n v. Philadelphia Mun. Separate Sch. Dist., 437 So.2d 388 (Miss.1983), for the proposition that a teacher has been “discharged” for purposes of determination of eligibility for unemployment benefits when he or she has been fired or not reemployed. Specifically, the supreme court stated,

An employee is as effectively removed from employment, whether he is fired or at the end of his contract term not rehired. We hold that a school teacher has been “discharged” within the meaning and contemplation of the Mississippi Employment Security Law whenever, within the meaning and contemplation of the Mississippi School Employment Procedures Law, he or she has been either fired or simply not reemployed.

Id. at 399.

¶ 14. While I have no qualms with the above definition of “discharged,” I argue that the circumstances of Major’s separation from his employment with the Greenwood School District do not fall under that definition. The main issue in Philadelphia Mun. Separate Sch. Dist. was whether the findings of one administrative agency, the Philadelphia Municipal Separate School District, could be binding on another agency, the Mississippi Employment Security Commission, during proceedings concerning similar fact questions. Id. at 390. Upon deciding that issue, the supreme court rejected the contention of the MESC that if a teacher is non-reemployed for cause that teacher is still entitled to unemployment benefits and defined “discharge” as quoted above. Id. at 398-99. The facts of the claimant’s discharge in Philadelphia Mun. Separate Sch. Dist. are easily, and rightfully, distinguished from the case at hand. Bobby Edsel Winstead, the claimant, was a math teacher with the Philadelphia Municipal Separate School District and after approximately nine years with the District he was officially notified that he was not going to be recommended for reemployment. Id. at 392, n. 1. Winstead was given a hearing before the Board of Trustees of the District and the Board decided that the recommendation of non-reemployment would be sustained. Id. At this point Winstead filed his initial claim for unemployment benefits and separately appealed the decision of the Board of Trustees. Id.

¶ 15. The obvious difference in the case sub judice and Philadelphia Mun. Separate Sch. Dist. is that the procedures for non-reemployment were never initiated against Major, while Winstead was given his notice, initial trial and appeal to the chancery court. The Philadelphia Mun. Separate Sch. Dist. court conditioned the definition of “discharge” upon the claimant being fired or not reemployed “within the meaning and contemplation of the Mississippi School Employment Procedures Law.” Id. at 399. The record of the instant case shows that Major resigned from his positions before receiving any official notice that he was not going to be recommended for reemployment. While George Noflin, the principal of Greenwood High School, did testify during a telephone hearing with the AAO that he and Major discussed the recommendation for non-renewal, Noflin stated that he did not force him to resign, but only advised him that a resignation would look more appealing to future employers than a non-renewal. Major’s own testimony corroborates this. When asked if he turned in resignation letters for his positions as basketball coach and physical education teacher he stated, “yes I did resign.” Furthermore, when asked if Noflin ever indicated that if Major did not resign he would be recommended for non-renewal, Major responded that Noflin never said that to him. Finally, on Major’s March 22, 2005 resignation letter he listed as his reason for resigning his position as the physical education teacher that he was going to “explore employment opportunities.” He did not list as his reason for resignation being threatened with non-renewal, that the school wanted to go in a different direction with the basketball program or any other reason indicating discharge.

¶ 16. It is clear from the record that Major’s separation from Greenwood High School does not fit within the supreme court’s definition of “discharge” as Major was neither fired nor not reemployed. It is equally clear from the record that Major decided to resign based on the possibility of non-reemployment in an effort to protect his work record had the recommendation for non-reemployment, once officially expressed, been sustained and upheld on appeal. Therefore, I contend that the decision of the of the Board of Review, and subsequent affirmance by the Leflore County Circuit Court, should be reversed as it is not supported by substantial evidence. Furthermore, the majority’s opinion has substantial ramifications to the integrity of the teaching profession in this state. Noflin indicated that a non-renewal on an educator’s work history is something that stays with him throughout his career. Noflin testified that to his knowledge most school districts in Mississippi ask as part of their employment application whether the teacher/applicant has ever received a non-renewal. Additionally, Noflin testified that if he was presented with an applicant who had been non-renewed he would most likely choose someone else without a non-renewal. Hence, protecting a teacher’s work record from receiving a non-renewal is paramount to his future employment. The majority’s opinion would allow teachers to receive a hint of non-renewal, or even the actual notice of a proposed non-renewal, and simply resign, thereby shielding them work record from a permanent potential indication of substandard performance and receive unemployment benefits when the reason they resigned was not because of a potential non-renewal, but the effect a non-renewal would have on their future employment. While an employee is entitled to unemployment benefits if he or she leaves employment for good cause, resigning in a effort to preserve a soon-to-be tarnished professional name can hardly qualify as such.

¶ 17. Additionally, while Noflin testified that Major would have still been recommended for non-renewal had his teaching license been renewed, he also testified that Major had been warned of his license’s pending expiration. Major, along with roughly thirty other teachers, had been selected for non-reemployment as a result of the expected expiration of their licenses before the next school year began. In October 2004, the first written notice that his teaching certificate had to be renewed by April 12, 2005 was sent to Majors. Majors did not get his license renewed. A second letter was mailed to Majors in January 2005 that he must get his renewal by the board meeting on April 12, 2005 or he could not be offered a re-employment contract for the 2005-2006 school year. Mississippi Code Annotated section 37-9-7 (Supp.2006) states that it is unlawful for a teacher to be employed or contracted to teach in any public schools of this state if they do not hold a current and proper license. Miss.Code Ann. § 37-9-7. The day of the hearing before the AAO, August 8, 2005, Major had yet to renew his license. Therefore, had Major not resigned it would have been unlawful for the District to extend his employment. In Richardson v. Mississippi Employment Sec. Comm’n, 593 So.2d 31 (Miss.1992), the supreme court upheld a decision by the Employment Security Commission’s Board of Review labeling an employee’s failure to maintain a driver’s license, which was a condition of his employment, as misconduct. Richardson, 593 So.2d at 35. Similarly, if Major had not submitted his letters of resignation he would have been nonrenewed as a result of his failure to maintain his teaching license and disqualified from receiving unemployment benefits as, in line with Richardson, Major’s inaction would have been deemed misconduct. Obvious to me is the conclusion that Majors knew when he submitted his last letter of resignation on March 22, 2005 that if he did not have his license renewed within the next three weeks, by April 12, 2005, the school board would send him written notification of non-renewal because it was illegal for it to contract with an unlicensed teacher. Therefore, for the reasons stated above, I dissent.

GRIFFIS, BARNES AND CARLTON, JJ., JOIN THIS OPINION.


author: ROBERTS, J.,

text:
    Larry TURNER, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-KA-02069-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.
    Rehearing Denied Aug. 21, 2007.

      Howard Q. Davis, Indianola, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

SUMMARY OF THE CASE

¶ 1. On May 17, 2005, incident to a bench trial as requested by Larry Turner, the Washington County Circuit Court found Turner guilty of burglary of a business. On June 24, 2005, the circuit court issued a sentencing order. By that order, the circuit court found that Turner qualified for enhanced sentencing as a habitual offender pursuant to Section 99-19-81 of the Mississippi Code. Consequently, the circuit court sentenced Turner to seven years in the custody of the Mississippi Department of Corrections. On July 1, 2005, Turner filed a pro se notice of appeal. Then, on July 19, 2005, aided by counsel, Turner filed an unsuccessful motion for new trial. Aggrieved, Turner appeals and raises the following issues, listed verbatim:

I. COUNSEL’S REPRESENTATION WAS DEFICIENT.
II. THE COURT ERRED IN NOT ORDERING A CONTINUANCE UNTIL THE TAPE COULD BE REVIEWED.
III. THE COURT ERRED IN CONTINUING THE SENTENCING HEARING AND IN SENTENCING MR. TURNER AS A HABITUAL OFFENDER.
IV. THE JUDGMENT WAS AGAINST THE V EIGHT OF THE EVIDENCE.
V. THE CUMULATIVE ERRORS IN THIS CASE REQUIRE REVERSAL.

Finding no error, we affirm.

FACTS

¶ 2. On the night of November 5, 2004, a security company notified the Greenville Police Department that the glass door at the Supervalu grocery store had been broken. The security firm also notified David Irby, the assistant manager of Supervalu.

¶ 3. Detective Edward Crockett was the first officer at the scene. Officers Charl-ton Smith, Chris Orr, and Bobby Walker arrived shortly afterwards. Officer Smith later testified that someone used a piece of iron to shatter the glass door. Officers Smith, Orr, and Walker went inside Super-valu to see if anyone was still inside. They did not find anyone.

¶ 4. Meanwhile, Lieutenant Dondi Gibbs was at another location. Having heard of the break-in at Supervalu, Lieutenant Gibbs “circulated” the area and looked for possible suspects. Lieutenant Gibbs noticed a man in dark clothing. That man, later identified as Turner, had a large white garbage bag. Curious as to the contents, Lieutenant Gibbs followed Turner as he walked. By Lieutenant Gibbs’s description, when he approached Turner, Turner “ran over to a brown Ford Taurus which was parked on the grass, and he had the bag in his hand. He ran behind the Taurus, he dropped the bag down, and he started walking back toward the street.”

¶ 5. Lieutenant Gibbs ordered Turner to put his hands on his head. Turner complied. Lieutenant Gibbs noticed that Turner had blood on his hands and jacket. Lieutenant Gibbs put Turner in restraints and announced over the radio that he had a suspect. Officers Smith, Orr, and Walker left Supervalu and made their way to Lieutenant Gibbs’s location while Detective Crockett stayed at Supervalu and photographed the broken door.

¶ 6. Lieutenant Gibbs turned Turner over to Officer Orr’s custody. Lieutenant Gibbs then found Turner’s white garbage bag. It was full of meat. Lieutenant Gibbs gave the meat to Officer Smith. Officer Smith put the meat in his trunk and went back to the store.

¶ 7. By the time Officer Smith made his way back to Supervalu, Irby had arrived. Irby deactivated the alarm. Irby also identified the meat labels as having come from Supervalu. Irby totaled up the value of the meat and arrived at the figure of $48.49. Officers took pictures of the meat and then, according to Officer Smith, Irby then “put the meat up.”

¶ 8. Supervalu had a video surveillance system. Irby, Lieutenant Gibbs, and Detective Crockett watched the video. By Irby’s description at trial, a man entered the store through the broken glass door, “took a right and went straight to the meat aisle” and put meat in a white bag. Irby later cleaned up the broken glass, boarded up the window, and reset the alarm.

PROCEDURAL HISTORY

¶ 9. On February 4, 2005, the Washington County Grand Jury returned an indictment against Turner and accused Turner of burglary of the Supervalu. The indictment also alleged that Turner was a habitual offender pursuant to Section 99-19-18 of the Mississippi Code.

¶ 10. On March 7, 2005, Turner filed a motion and requested “full and complete discovery pursuant to the laws and statutes of the State of Mississippi and pursuant to Rule 9.04 of the Uniform and Circuit and County Court Rules.” On March 18, 2005, Turner went before the circuit court and pled “not guilty.” On March 23, 2005, the district attorney’s office sent the public defender’s office a letter and stated, “[ajttached please find a copy of the District Attorney’s file, which includes pages 1 through 33, on your client as per your request.” The record merely contains a copy of the letter, not the thirty-three pages listed as included. However, that letter also notified the public defender’s office that the district attorney’s office retained all physical evidence in Turner’s case and that the public defender’s office could view it by making arrangements with the Greenville Police Department.

¶ 11. On May 17, 2005, Turner went before the Washington County Circuit Court. Turner requested a bench trial. As will be discussed below, when the circuit court asked the parties whether they were ready for trial, counsel for Turner notified the circuit court that he had only learned of the existence of the videotape “five minutes ago.” We will discuss this in much greater depth in Turner’s first issue. Here, we can summarize by saying that the circuit court attempted to give Turner and his counsel an opportunity to view the videotape.

¶ 12. The prosecution called four witnesses: Officer Smith, Detective Crockett, Lieutenant Gibbs, and Irby. Afterwards, Turner filed an unsuccessful motion for directed verdict. Turner then announced that he would not be calling any witnesses. Accordingly, the circuit court deliberated and found Turner guilty.

¶ 13. The circuit court then proceeded with the habitual offender portion of Turner’s indictment. The circuit court continued that portion of Turner’s trial to June 24, 2005. On that date, the circuit court found that Turner met the criteria for sentencing as a habitual offender pursuant to Section 99-19-81. Accordingly, the circuit court sentenced Turner to seven years in the custody of the MDOC.

¶ 14. On July 1, 2005, Turner filed a pro se notice of appeal. However, on July 19, 2005, aided by counsel, Turner filed an unsuccessful motion for new trial. On January 5, 2006, the circuit court issued its “Final Order and Setting of Appeal Bond.” Within that order, the circuit court noted that it had overruled Turner’s motion for new trial. Aggrieved, Turner appeals.

ANALYSIS

I. COUNSEL’S REPRESENTATION WAS DEFICIENT.

¶ 15. In his first issue, Turner claims that he experienced ineffective assistance of counsel. However, Turner claims that his counsel was ineffective in the way he handled the videotape of the surveillance footage.

¶ 16. As promised, a more detailed examination of the pertinent facts is necessary. When the circuit court asked whether the parties were ready for trial, both the prosecution and Turner’s attorney announced that they were ready. The circuit court then asked, “[i]s there anything we need to take up before we begin?” Counsel for Turner answered:

Your Honor, there is one thing. We haven’t spoken with or received any summary of a statement from the store manager, the store representative, from Supervalu, so we would object to his being able to take the stand. Also there is a video tape that we learned of this morning. We object to that coming into evidence as well, since we haven’t even heard of it before five minutes ago.

The circuit court gave Turner’s attorney an opportunity to interview Irby and to watch the video. Twenty minutes later, counsel for Turner announced that he spoke with Irby. He also announced that the video was “sped up” and that it “was too fast for viewing” so Irby went to Su-pervalu to “get a better copy of that tape.” Counsel for Turner then said, “I just as soon we go ahead and begin, and if and when they return with that tape, we can pause briefly.”

¶ 17. The prosecution proceeded to put on its proof. As mentioned, the prosecution called Officer Smith, Detective Crockett, and Lieutenant Gibbs as its first three witnesses. Detective Crockett and Lieutenant Gibbs mentioned the video only in that they testified that they watched it. Officer Smith did not mention the video at all.

¶ 18. The prosecution called Irby as its final witness. The prosecution submitted the videotape during Irby’s direct testimony. Irby testified that he recognized the videotape because it came from Supervalu and he got it from there around lunchtime on the date of trial. When the prosecution moved to introduce the videotape into evidence, counsel for Turner stated, “Just renew our objection from prior to this proceeding about the timeliness of its being produced.” The circuit court overruled that objection.

¶ 19. Here, Turner does not claim that the circuit court erred when it allowed the prosecution to submit the video. Rather, Turner claims his attorney was ineffective. To establish a claim of ineffective assistance of counsel, Turner must demonstrate: (1) a deficiency of his counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swington v. State, 742 So.2d 1106, 1114(¶ 22) (Miss.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Walker v. State, 703 So.2d 266, 268 (Miss.1997)). In deciding whether Turner’s counsel rendered ineffective assistance, this Court examines the totality of the circumstances surrounding the case. Swington, 742 So.2d at (¶ 22). Turner faces a “strong but rebuttable presumption that his counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. at (¶ 23). To overcome this presumption, Turner must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

¶ 20. According to Turner, his attorney should have requested a continuance. Turner claims his attorney should not have proceeded with trial having not reviewed the videotape. Further, Turner claims that his attorney should have reviewed the tape prior to cross-examining witnesses.

¶ 21. The problem with Turner’s argument is that neither Officer Smith, Detective Crockett, nor Lieutenant Gibbs testified as to the videotape. Detective Crockett and Lieutenant Gibbs mentioned that they saw it, but they did not testify as to anything depicted on the tape. An additional problem is that the record is insufficient to resolve Turner’s claim that his attorney did not review the video pri- or to cross-examining any of the prosecution’s first three witnesses. Irby testified that he brought the tape back “around lunchtime.” True enough, Officer Smith testified before lunch, but Detective Crockett and Lieutenant Gibbs testified after lunch. So while its clear that Turner’s attorney did not see the video prior to cross-examining Officer Smith, it is not quite so clear that he did not watch the video before he cross-examined Detective Crockett or Lieutenant Gibbs. The record is silent as to whether he watched the video “around lunchtime” or at any other time. Further, counsel for Turner had the option of recalling the prosecution’s witnesses to question them regarding the events depicted on the videotape.

¶ 22. “We should reach the merits on an ineffective assistance of counsel issue on direct appeal only if ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’ ” Pittman v. State, 836 So.2d 779(¶ 39) (Miss.Ct.App.2002) (quoting Colenburg v. State, 735 So.2d 1099, 1101 (Miss.Ct.App.1999)). The parties have not entered any such stipulation, and the record does not affirmatively show ineffectiveness of constitutional dimensions. Rather, the state of the record renders it impossible for us to sufficiently examine Turner’s allegations. Accordingly, Turner may raise his ineffective assistance of counsel claim in a post-conviction relief proceeding, if he so chooses.

II. THE COURT ERRED IN NOT ORDERING A CONTINUANCE UNTIL THE TAPE COULD BE REVIEWED.

¶ 23. Turner’s second issue also centers on the videotape. Here, however, he does not claim his attorney was ineffective. Instead, he claims the circuit court erred when it did not continue Turner’s trial until counsel for Turner had an opportunity to review the tape. According to Turner, the circuit court should have granted a continuance, rather than merely granting defense counsel an opportunity to review the tape.

¶ 24. Turner cites URCCC 9.04(1). Turner draws particular attention to the following language from Rule 9.04(1):

If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows: 1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and 2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

¶ 25. Here, Turner’s attorney knew of the undisclosed evidence before the precise moment in trial when the prosecution attempted to introduce it. The circuit court gave Turner’s attorney an opportunity to interview Irby. As we discussed in the issue above, the record before us is silent as to whether counsel for Turner had an opportunity to review the videotape before the prosecution submitted it during Irby’s direct testimony. Counsel for Turner did not claim unfair surprise or undue prejudice; nor did he seek a continuance or a mistrial. Whether that is ineffective assistance of counsel is not the subject of this issue. Regardless, we find that Turner waived this issue on appeal. Porter v. State, 869 So.2d 414(¶ 21) (Miss.Ct.App.2004).

III. THE COURT ERRED IN CONTINUING THE SENTENCING HEARING AND IN SENTENCING MR. TURNER AS A HABITUAL OFFENDER.

¶26. Turner’s third issue stems from the circuit court’s decision to continue the habitual offender portion of Turner’s trial. Turner’s entire argument under this issue is as follows:

The entire Code of Judicial Conduct is based upon preserving “the integrity and independence of the Judiciary.” [Canon 1] Canon 2 says that a Judge must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” While I have all the respect in the world for the Trial Judge in this case and believe he tried to be fair, the perception, particularly to Larry Turner, is that, under the facts of this case, the Judge was not acting fairly and impartially.
The State announced that it was ready to proceed with the sentencing phase, and, when it was not able to meet its burden, the Court continued the matter on its own motion over the objection of the Defendant. Mr. Turner’s perception is even stronger when linked to his perception of his attorney’s lack of effectiveness, being such that he notified the Public Defender’s Office that he felt they had violated his rights to effective representation and they had, in response, filed a motion to be relieved, which, as mentioned above, was not granted until after the sentencing phase.
Under the facts of this case, the Judge was not acting in a fair and impartial manner.

(citations to the record omitted).

¶ 27. Turner cites no authority to support his argument. “It is the duty of an appellant to provide authority in support of an assignment of error.” Hoops v. State, 681 So.2d 521, 526 (Miss.1996). Accordingly, this issue is procedurally barred.

IV. THE JUDGMENT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

¶ 28. Turner attempts to attack the weight of the evidence regarding his conviction of burglary of a business and his sentencing as a habitual offender. A motion for a new trial seeks to vacate the judgment on grounds related to the weight of the evidence. Verner v. State, 812 So.2d 1147(¶ 6) (Miss.Ct.App.2002). We may only reverse the circuit court’s decision to overrule a motion for a new trial if the circuit court abused its discretion. Smith v. State, 868 So.2d 1048(¶ 11) (Miss.Ct.App.2004).

A. Turner’s Conviction for Burglary of a Business

¶ 29. Turner claims no evidence showed that he broke into Supervalu. Turner draws attention to the evidence that (a) Irby testified that Turner could have possibly purchased the meat legitimately or received it from someone who had, (b) Turner’s fingerprints were not found at the scene, (c) no one saw Turner near the Supervalu at the time of the break-in, and (d) although Officer Gibbs testified that Turner had blood on his hands and his jacket to imply that Turner cut himself either entering or exiting the store, there was no evidence of blood at the scene.

¶ 30. While Turner may be technically correct on every point, we do not find that the circuit court abused its discretion when it overruled Turner’s motion for new trial. Supervalu’s video surveillance system showed the glass door as someone broke it and entered the store. It also showed a man in dark clothing entered through the broken glass and filled a white bag with meat. Turner was apprehended within a very short time period afterward. Turner had on dark clothing. Turner also had a white bag full of meat.

¶ 31. This Court must consider all the evidence in the light most consistent with the verdict and we must give the State all favorable inferences which may be drawn from that evidence. Fleming v. State, 732 So.2d 172(¶ 38) (Miss.1999). As such, we do not find that the circuit court abused its discretion.

B. Turner’s Enhanced Sentence as a Habitual Offender

¶ 32. The prosecution called Sharon Parish, a probation parole officer with the Mississippi Department of Corrections. During Parish’s testimony, the prosecution submitted what was described as “three certified copies of prior sentencing orders.” According to the record, one sentencing order referenced a burglary conviction from January of 1985, another referenced a burglary conviction from 1981, and the third referenced yet another burglary conviction from 1981.

¶ 33. Introduction of original or certified copies of commitment papers is the commons means to demonstrate prior convictions for purposes of enhanced sentencing as a habitual offender. Sims v. State, 775 So.2d 1291(¶ 14) (Miss.Ct.App.2000). Accordingly, we find that the circuit court did not abuse its discretion.

V. THE CUMULATIVE ERRORS IN THIS CASE REQUIRE REVERSAL.

¶ 34. We can find no individual error, much less a cumulative effect from those nonexistent errors. As such, we find no merit to this argument.

¶ 35. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF BURGLARY OF A BUSINESS AND SENTENCE OF SEVEN YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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

      . The indictment alleged that Turner had been “previously convicted of burglary on February 2, 1981 in cause number 17-370 in the Circuit Court of Washington County, Mississippi and ... sentenced to serve a term of 1 year or more in the custody of MDOC; and ... Business Burglary on September 11, 2003 in cause number 2003-098 in the Circuit Court of Washington County, Mississippi and ... sentenced to serve a term of 3 years in the custody of MDOC.”


author: ISHEE, J.,

text:
    Gene Arnold SCOTT, Appellant v. CITY OF BOONEVILLE, Mississippi, Appellee.
    No. 2005-KM-02094-COA.
    Court of Appeals of Mississippi.
    March 27, 2007.
    Rehearing Denied Aug. 14, 2007.

      Tommy Dexter Cadle, Kenneth Eugene Floyd, Attorneys for Appellant.
    William Wayne Smith, Yazoo City, Attorney for Appellee.
    Before KING, C.J., CHANDLER and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. On December 9, 2004, the Municipal Court of Booneville, Mississippi convicted Gene Arnold Scott of the following charges: driving under the influence, improper equipment, making an improper turn, possession of whiskey in a dry county, and possession of beer in a dry county. Scott then appealed his conviction to the Prentiss County Circuit Court. A trial de novo was held on October 7, 2005, and Scott was found guilty of all charges. Aggrieved, Scott appeals and asserts the following issues:

I.Whether the lower court committed reversible error in adjudging Appellant guilty of driving under the influence on June 15, 2004, notwithstanding the fact that the affidavit charging Appellant with driving under the influence charged Appellant with committing said offense on June 16, 2004.
II. Whether a two year old outdated DUI citation, which is not a Uniform Traffic Ticket, citation, or affidavit in accordance with section 63-9 — 21(3)(b) constitutes a legal/valid affidavit and/or is a Defendant not entitled to a dismissal when a charge of driving under the influence is lodged on such a citation.
III. Whether a DUI citation with an erroneous address of the court in which the cause is to be heard constitutes a sworn complaint.
IV. Whether the trial court erred in finding there was probable cause to make the relevant stop.

Finding no error, we affirm.

FACTS

¶ 2. Shortly before midnight on June 15, 2004, Sergeant Eddie Greene of the Booneville Police Department pulled over a red eighteen-wheeler driven by the Gene Arnold Scott. Greene testified that he had received a call from dispatch to be on the lookout for a vehicle matching the description of that driven by Scott. In addition, Greene stated he pulled Scott over for making an improper turn and because a headlight was out on the truck.

¶ 3. During the ensuing conversation with Scott, Sergeant Greene noticed the smell of alcohol on or about Scott’s breath. Greene then performed a field sobriety test that included a horizontal gaze nystag-mus, a walk and turn, and a one leg stand. Based on these tests Greene believed Scott to be under the influence and decided to take him to the justice center. During an inventory of Scott’s vehicle, Greene found three twelve-ounce cans of Coors Light beer and a bottle of Canadian Mist whiskey.

¶ 4. Shortly after midnight on June 16, 2004, and upon arrival at the justice center, Greene administered a breathalyzer test to Scott using the CMI Intoxilyzer 5000. The Department of Public Safety had certified the machine, and Sergeant Greene was also certified to operate it. The results indicated that Scott had an alcohol concentration of 0.089%, in excess of the 0.04% allowed for operators of a commercial vehicle.

¶ 5. Based on Sergeant Greene’s observations and the breathalyzer test, Scott was charged with the following crimes: improper equipment for having only one headlight, making an improper turn, driving under the influence, possession of beer in a dry county, and possession of whiskey in a dry county. The City of Booneville Municipal Court tried Greene and found him guilty of all the charges. On appeal, the Prentiss County Circuit Court conducted a trial de novo and again found Scott guilty of all charges.

¶ 6. In the courts below, Greene filed motions challenging the sufficiency of the affidavit that charged him with DUI and argued there was no probable cause for Sergeant Greene to make the stop. The DUI ticket issued to Scott by Greene was a two-year old version; however, it did contain the relevant provision that stated it was a crime for anyone with an alcohol concentration of 0.04% or above to operate a commercial motor vehicle. The same ticket also incorrectly stated the address of the Booneville Municipal Court, which the city had moved some years ago. Lastly, the DUI ticket included the incorrect date of the incident. Greene had written on the ticket that he pulled over Scott on June 16, 2004, when in fact he had done so on June 15. Greene testified that it was a scrivener’s error based on the fact that he stopped Scott shortly before midnight and administered the breathalyzer test shortly after midnight. The tickets given to Scott for improper equipment and making an improper turn were current and contained the correct date and address for the courthouse.

¶ 7. The courts below dismissed the above motions. Aggrieved, Scott appeals to this Court.

ISSUES AND ANALYSIS

I. Whether the lower court committed reversible error in adjudging Appellant guilty of driving under the influence on June 15, 2004, notwithstanding the fact that the affidavit charging Appellant with driving under the influence charged Appellant with committing said offense on June 16, 2004.

¶ 8. Rule 7.06 of the Uniform Rules of Circuit and County Court states that an indictment shall contain the date and time of the alleged offense. Nevertheless, “Failure to state the correct date shall not render the indictment insufficient.” Id. Furthermore, an indictment is not insufficient “for stating the offense to have been committed on day subsequent to the finding of the indictment.” Miss.Code Ann. § 99-7-5 (Rev.2000). An incorrect date will not render an indictment defective. See Corley v. State, 536 So.2d 1314, 1316 (Miss.1988); Wofford v. State, 875 So.2d 251, 253(¶ 8) (Miss.Ct.App.2004). A Uniform Traffic Ticket serves as an indictment in this case, putting the defendant on notice of the charges against him. The requirements for a traffic ticket are as follows:

Every traffic ticket shall show, among other necessary information, the name of the issuing officer, the name of the court in which the case is to be heard, and the date and time such person is to appear to answer the charge. The ticket shall include information which will constitute a complaint charging the offense for which the ticket was issued, and when duly sworn to and filed with a court of competent jurisdiction, prosecution may proceed thereunder.

Miss.Code Ann. § 63-9-21(3)(c) (Rev. 2004). Such a traffic ticket constitutes a sworn affidavit sufficient to charge a defendant in municipal court. Wheeler v. Stewart, 798 So.2d 386, 390(¶8) (Miss.2001).

¶ 9. Scott does not cite any authority to support his argument that the discrepancy in dates meant there was insufficient proof to convict him. While the prosecution did not submit any proof at trial that Scott was driving under the influence on June 16, 2004, it did point out that the date on the Uniform Traffic Ticket was a scrivener’s error. The error happened because Sergeant Greene stopped Scott shortly before midnight and conducted a breathalyzer test shortly after midnight. The trial court agreed that it was a scrivener’s error, and the prosecution amended the ticket to state the correct date, June 15, 2004. If an indictment with an incorrect date of the incident is not defective, we do not find such a traffic ticket to be defective either.

¶ 10. The other two citations issued to Scott for the simultaneous offenses stated the correct date and time. Also, the time on the DUI citation matched times written on the other two citations. Scott was, therefore, aware of the actual date of the offense for which he was charged. The trial court found the date to be a scrivener’s error, and we agree. Accordingly, the traffic ticket was sufficient to put Scott on notice that the DUI charge was for the night of June 15, 2004. The prosecution did put on proof that Scott was driving under the influence on June 15, 2004, and he was convicted of that offense. This issue is without merit.

II. Whether a two year old outdated DUI citation, which is not a Uniform Traffic Ticket, citation, or affidavit in accordance with section 63 — 9—21(3)(b) constitutes a legal/valid affidavit and/or is a Defendant not entitled to a dismissal when a charge of driving under the influence is lodged on such a citation.

¶ 11. Scott relies on an attorney general opinion to support his argument that the outdated tickets deprive the trial court of jurisdiction. The opinion states that municipalities may not delay in purchasing new DUI tickets. Miss. Att’y Gen. Op. No.1994-0197 (Apr. 6, 1994). The State cites another such opinion, which says that officers may revise existing DUI citations while also reminding the municipalities they may not delay in purchasing new tickets. Miss. Att’y Gen. Op. No.2002-0572 (Oct. 18, 2002). Attorney general opinions, while not binding on this Court, may be considered by it. Madison County v. Hopkins, 857 So.2d 43, 50(¶ 19) (Miss.2003).

¶ 12. This is not a case of the city purposefully continuing to use outdated Uniform Traffic Tickets. The testimony revealed the City of Booneville had come into compliance with the new law, and it had been using the new tickets long before Greene issued the ticket in question. The City could not explain how the old ticket had gotten into circulation. The difference in the tickets is that the newer Uniform Traffic Tickets reflect the decrease in the allowable alcohol concentration for operators of noncommercial vehicles. However, this change is irrelevant to Scott’s ticket.

¶ 13. The portion of the Uniform Traffic Ticket that applies to Scott’s situation is the part that indicates it is a crime to operate a commercial vehicle with an alcohol concentration of 0.04% or more. Since the legislature did not alter the allowable alcohol concentration for operating a commercial vehicle, this portion remains the same on the new tickets as on the old tickets. Miss.Code Ann. § 63-11-30(1) (Rev.2004). Issuing one of the new tickets to Scott would have made no difference since, concerning the operation of a commercial vehicle, it would state the same charge found on the old ticket. As in Wheeler, the ticket in question contained all the statutorily required information; therefore, it constituted a sworn affidavit. This issue is without merit.

III. Whether a DUI citation with an erroneous address of the court in which the cause is to be heard constitutes a sworn complaint.

¶ 14. Scott next argues that the DUI citation, which contained the incorrect address for the municipal court, did not constitute a sworn affidavit. His argument is that, because the citation lacked the court’s correct address, it failed to state “the name of the court in which the cause was to be heard,” as required by section 63-9-21(3)(c) of the Mississippi Code.

¶ 15. The supreme court has held that a discrepancy will not render a traffic ticket ineffective when the defendant was made aware of the violation for which he was charged. Palmer v. City of Oxford, 860 So.2d 1203, 1212 — 13(¶ 24) (Miss.2003). In Palmer, the supreme court held the ticket valid even though the defendant’s copy did not contain his alcohol concentration. Id. Furthermore, as stated in Wheeler, a traffic ticket that contains the statutory requirements constitutes a sworn affidavit. Wheeler, 798 So.2d at 390(¶ 8).

¶ 16. While the DUI ticket contained the wrong address, it did, however, state that Scott’s arraignment was to take place before the Municipal Court of Booneville, Mississippi. We first note that this is the name of the court in which Scott’s arraignment did take place. While the address of the court was outdated, the citation did contain the proper name of the court. Nowhere does the statute state that the citation must contain the address of the court, only the name. Furthermore, the ticket did contain the name of the officer and the date and time of the hearing. Under Wheeler, this constitutes a sworn affidavit.

¶ 17. Scott does not argue that he lacked notice of the arraignment. Again, the other two citations issued to Scott for simultaneous offenses were current versions and contained the correct address for the Booneville Municipal Court. Not only did the citations put him on notice of the correct address of the court, but he also appeared at the correct courthouse for the arraignment. The traffic ticket contained sufficient information to constitute a sworn affidavit charging Scott with DUI. This issue is without merit.

IV. Whether the trial court erred in finding there was probable cause to make the relevant stop.

¶ 18. In determining whether probable cause existed to make a stop, an appellate court should review the decision de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The Mississippi Supreme Court has stated that this review is a de novo review under the applicable substantial evidence/clearly erroneous standard. Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 11) (Miss.1999).

¶ 19. A police officer may stop an automobile when he has probable cause to suspect a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “This is an objective test based on the facts known to the officer at the time of the stop.” United States v. Escalante, 239 F.3d 678, 681 (5th Cir.2001). Regarding the improper turn, section 63-3-703(c) of the Mississippi Code provides that local authorities may place markers designating how drivers must turn at intersections. When an intersection is so marked, drivers are required to follow the designated instructions. Id. Also, a motor vehicle must have two headlights, and one must be located on each side of the front of the vehicle. Miss.Code Ann. § 63-7-13(1) (Rev.2004). From sunset until sunrise those headlights must be lighted. Miss. Code Ann. § 63-7-11 (Rev.2004).

¶ 20. Scott specifically takes issue with the fact that making an improper turn was insufficient probable cause to pull over Scott. He fails to address whether Sergeant Greene had probable cause to pull him over because he was missing a headlight or based on the call from dispatch.

¶21. The trial court found that Sergeant Greene had ample probable cause. First of all, he received a call from dispatch telling him to look out for a truck with a description matching that of Scott’s truck. In addition, he testified that he first noticed Scott’s truck was missing a headlight, and he also watched him execute an improper turn. The testimony that Greene observed Scott enter an improper turning lane was itself probable cause to stop Scott. Greene observed a traffic violation occur; therefore, he had the authority under Whren to stop Scott’s automobile.

¶ 22. At the time, Sergeant Greene had probable cause to stop Scott when he observed Scott make an improper turn. He also had probable cause to make the stop because Scott was driving at night with only one headlight. Either of these alone would be sufficient to make the stop, so it is not necessary for this Court to address whether the call from dispatch created probable cause to make the stop. This issue is without merit.

¶ 23. THE JUDGMENT OF THE PRENTISS COUNTY CIRCUIT COURT OF CONVICTION OF DUI FIRST OFFENSE AND SENTENCE OF TWENTY-FOUR HOURS IN JAIL WITH TWENTY-FOUR HOURS SUSPENDED AND PAYMENT OF $959.50 IN FINES; OPERATING A MOTOR VEHICLE WITH IMPROPER EQUIPMENT AND PAYMENT OF $157.50 IN FINES; MAKING AN IMPROPER TURN AND PAYMENT OF $157.50 IN FINES; POSSESSION OF BEER IN A DRY COUNTY AND PAYMENT OF $178 IN FINES; POSSESSION OF WHISKEY IN A DRY COUNTY AND PAYMENT OF $228 IN FINES IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . The ticket issued to Scott contained an older provision that made it a crime to operate a noncommercial motor vehicle with an alcohol concentration of 0.10% or above, while the new tickets incorporated the amendment to the law that made it a crime to operate a noncommercial motor vehicle with an alcohol concentration of 0.08% or above. Scott's charges were for operation of a commercial vehicle; therefore, the portion relevant to him was correct.


author: IRVING, J.,

text:
    Christopher T. BLAKE and Robert Blake, Appellants v. Richard WILSON, Richard Lawrence, Ronnie Pennington, Sheriff of Rankin County, Mississippi, and Billy Luke, Appellees.
    No. 2006-CA-00780-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.
    Rehearing Denied Aug. 21, 2007.

      David M. Sessums, Vicksburg, attorney for appellants.
    Jacqueline H. Ray, J. Lawson Hester, Jackson, attorneys for appellees.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises out of a civil suit filed by Christopher Blake and Robert Blake against Richard Wilson, Richard Lawrence, Ronnie Pennington, and Billy Luke. The Blakes’ claims are based on an incident involving the Rankin County Sheriffs Department’s enforcement of a custody order. After discovery, the Rankin County Circuit Court granted summary judgment on behalf of the officers. Aggrieved, the Blakes appeal and contend that the court erred in extending discovery for the officers, in denying the Blakes’ motion for recusal, in permitting a collateral attack on a Mississippi judgment, in granting summary judgment, and in upholding a Virginia custody order.

¶ 2. Finding no error, we affirm the summary judgment.

FACTS

¶ 3. Christopher Blake and Lauren Blake were wed in Rankin County on December 28, 1996. Two children, Skylar and Hayden, were born to them in 1997 and 1999, respectively. Prior to May 2002, Christopher, Lauren, and the children lived in Virginia, where Christopher worked. In May 2002, Christopher returned to Mississippi with the children while Lauren remained in Virginia. In June of 2002, the children returned to Virginia, and in July of the same year, the 31st Judicial District Juvenile and Domestic Relations Court in Virginia granted custody of the children to Lauren.

¶ 4. In October 2002, Lauren and Christopher attempted to reconcile. In early November 2002, Christopher helped Lauren and the children move from Virginia to Mississippi with him. In December 2002, Lauren visited Virginia. Upon her return to Mississippi, Lauren informed Christopher that she wished to return to Virginia. In January 2003, Lauren took the children and moved back to Virginia.

¶ 5. Six months later, in June 2003, Lauren and Christopher met half-way between Virginia and Mississippi, or possibly met in Virginia. At that time, Lauren willingly gave Skylar and Hayden to Christopher. Christopher and the children returned to Mississippi. In August 2003, Lauren came to Mississippi, where she took possession of Skylar, with whom she returned to Virginia. Hayden remained with Christopher; Christopher maintains that Lauren attempted to take both children at that time, but was able to take only Skylar.

¶ 6. On October 20, 2003, Lauren and Christopher both appeared at a temporary custody hearing in Rankin County, Mississippi. Temporary custody was granted to Christopher by the Rankin County Chancery Court. After the temporary order, Christopher went to Virginia to retrieve Skylar. On November 20, 2003, the Rankin County Chancery Court found that it had exclusive jurisdiction over the children and entered an order awarding permanent custody of the children to Christopher.

¶ 7. On June 1, 2004, the Virginia court modified its July 2002 custody order to include the following language: “The Court requests that all law enforcement, including but not limited to the Sheriff Department, Rankin County, Mississippi, assist in the enforcement of this order.” Lauren filed the revised order in Mississippi with the Rankin County Chancery Clerk on June 2, 2004. That evening around seven o’clock, Lauren and officers from the Sheriffs Department arrived at the house of Robert Blake, Christopher’s father, to enforce the Virginia order. Eventually, Richard Wilson and Richard Lawrence arrived and indicated that they were there on behalf of the Rankin County Sheriffs Department to help enforce the custody order.

¶ 8. Robert refused to grant the officers access to his home, and Christopher requested permission to leave and retrieve his Rankin County custody papers, which he had left at his own house. While Christopher was gone, Robert continued to refuse access to his house, wherein Skylar and Hayden were located, and was subsequently handcuffed and placed in a patrol car. According to Christopher, he returned with his custody papers, but the officers refused to look at them. Eventually, Christopher agreed to let the officers return custody of the children to Lauren, although he requested that he be allowed to go to his house with the children in order to gather some of their belongings. On the way to his house, and once he was at his home, Christopher attempted to contact Judge Thomas Zebert, who had entered the Rankin County custody order. Lauren and the children left for Virginia while Christopher was still in his house.

¶ 9. Christopher eventually reached Judge Zebert, who spoke to Wilson and urged caution. Wilson informed Judge Zebert that custody had already been turned over to Lauren, and that there was nothing more that could be done. Since June 2, Christopher has returned to Virginia to attempt to regain custody of his children, but has not been able to do so. As a result of the incidents related above, the Blakes filed a civil suit against the law enforcement officers involved, alleging a variety of civil claims.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Discovery

¶ 11. In their first contention of error, the Blakes claim that the court erred in allowing the officers to file discovery requests after the expiration of the period of time allowed by Rule 4.04 of the Uniform Rules of Circuit and County Court. Specifically, the Blakes contend that the court was in error because the officers did not file a written motion requesting a discovery extension. The Blakes also object to the officers’ drafting of an “Agreed Order” that was forwarded to the Court, but to which the Blakes never agreed. The Blakes’ attorney wrote a letter objecting to the agreed order, and the officers maintain that this issue is procedurally barred because the letter, which was not included in the record before us, does not constitute a contemporaneous objection to the entry of a scheduling order.

¶ 12. “Trial courts have considerable discretion in discovery matters, and their decisions will not be overturned unless there is an abuse of discretion.” Beck v. Sapet, 937 So.2d 945, 948-49(¶ 6) (Miss.2006) (citing Robert v. Colson, 729 So.2d 1243, 1245(¶ 11) (Miss.1999)). “A trial court has the authority and indeed a duty to maintain control of [its] docket and ensure the efficient disposal of court business.” Venton v. Beckham, 845 So.2d 676, 684(¶ 25) (Miss.2003) (citing Harris v. Fort Worth Steel & Mach. Co., 440 So.2d 294, 296 (Miss.1983)). We further note that the Mississippi Supreme Court has indicated that striking untimely filed responses and affidavits is a drastic measure that should be inflicted in limited circumstances. See Thompson v. Patino, 784 So.2d 220, 223-24(¶ 25) (Miss.2001) (citations omitted).

¶ 13. The officers’ request for discovery was filed in early July 2005. The Blakes did not respond to the request until after the court entered its scheduling order which stated that discovery would close on September 30, 2005. The Blakes did not object to this order, although they did not sign the “agreed” order and a letter of protest from their attorney was attached to the proposed agreed order that was sent to and adopted by the court. Although the order clearly stated that it was “agreed,” and even mentioned that the parties had conferred and agreed on a trial setting schedule, the court was clearly aware that the Blakes, in fact, had not agreed to the proposed order, as evidenced by the letter of protest that was forwarded to the court by the officers’ attorney. Regardless, the court entered the order, which clearly was issued under the authority of the court as the court’s order. The fact that the order was labeled as “agreed” is inconsequential.

¶ 14. Trial courts enjoy wide discretion in managing their dockets and conducting discovery; therefore, the court did not err in setting out a schedule for discovery in this case, despite the fact that the officers did not file a written motion requesting an extension of discovery. As recently stated by the Mississippi Supreme Court, “[o]ur trial judges are afforded considerable discretion in managing the pretrial discovery process in their courts, including the entry of scheduling orders setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases.” City of Jackson v. Presley, 942 So.2d 777, 781(¶7) (Miss.2006) (quoting Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042(¶ 14) (Miss.2003)). This contention of error is without merit.

2. Motion for Recusal

¶ 15. The Blakes contend that the court erred in denying a motion requesting the recusal of both William Chapman and Sa-mac Richardson, the circuit court judges for Rankin County. The basis of the motion was that Lawrence and Wilson are employed in some official capacity by Rankin County. As contended by the Blakes in their brief, “reasonable persons knowing all of the circumstances and knowing that Richard Wilson and Richard Laurence [sic] were attorneys regularly appearing before the Circuit Court of Rankin County, Mississippi, might question the impartiality of the judges of said Court....”

¶ 16. Recusal is mandated only when “a fair-minded person, knowing all the facts, might reasonably question the judge’s impartiality.” Boyd v. Tishomingo County Democratic Exec. Comm. & Members, 912 So.2d 124, 133(¶ 21) (Miss.2005) (quoting Upton v. McKenzie, 761 So.2d 167, 172(¶ 16) (Miss.2000)). Canon 3E(1)(b) of the Mississippi Code of Judicial Conduct states that judges “should disqualify themselves in proceedings in which their impartiality might be questioned by a reasonable person knowing all the circumstances ... including but not limited to instances where ... a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter ... [.]” However, the commentary to the canon states that “[a] lawyer in a governmental agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(l)(b).... ”

¶ 17. Judge Chapman found the Blakes’ motion to be without merit, and also determined that the motion was not timely filed. The Blakes contend that their motion was, in fact, timely because they filed it within thirty days of determining that Lawrence and Wilson acted in an official capacity at the time of the incident. We find that this argument lacks persuasion, as the Blakes’ complaint clearly alleged that “Wilson and Lawrence represented to Plaintiffs that they were acting as attorneys and also represented to Plaintiffs that they were acting in their official capacities as Rankin County prosecuting attorneys.” Therefore, the court did not err in finding that the motion was properly denied as untimely.

¶ 18. Furthermore, while Lawrence and Wilson are both employed in some capacity by Rankin County, there is no evidence to indicate that they were well-known to either judge. In fact, in declining to recuse, Judge Chapman noted:

Mr. Lawrence and Mr. Wilson don’t regularly practice before the circuit court. I don’t ever remember Mr. Lawrence appearing before me. It seems to me that Mr. Wilson may have presented an order, I think, one time on an exhumation, but that’s the only time I remember .... Mr. Lawrence and Mr. Wilson are not personal friends of mine. I’ve never had lunch with them. I don’t know where they five. I’ve never visited with them in their house[s], they’ve never visited with me in mine. And I think the only time I’ve ever seen them outside of the courthouse is right here, right now, Mr. Lawrence. So I just don’t believe a person knowing all the circumstances would question my impartiality in that.

Even if the motion had not been properly denied as untimely, Judge Chapman did not abuse his discretion by declining to recuse himself. This contention of error is without merit.

S. Collateral Attack

¶ 19. The Blakes contend that the court’s grant of summary judgment acts as a collateral attack on the Rankin County custody order. We find that this contention is without merit, as the Blakes’ suit concerns a civil action against various officials. Nothing in the court’s grant of summary judgment bolsters or affirms the Virginia custody order, nor does the court’s order act as a collateral attack against the Rankin County custody order. The dismissal of the Blakes’ civil complaint against the law enforcement officials does not attack, directly or collaterally, the Rankin County Chancery Court judgment.

Jp. Propriety of Summary Judgment

¶ 20. The Blakes contend that they have produced genuine issues of material fact sufficient to overcome summary judgment. For purposes of clarity, we address separately below the multiple grounds upon which summary judgment was properly granted.

Immunity Under the MTCA

¶ 21. The Mississippi Tort Claims Act (MTCA) governs when various officials, such as the officers, are entitled to immunity against tort claims. A review of the Act reveals that the officers are entitled to summary judgment under multiple provisions of the MTCA.

¶ 22. We note at the outset that the Blakes’ complaint is sometimes ambiguous as to whether the individuals named in the complaint are sued in their individual capacity or whether they are sued in their official capacity. However, there is no evidence, and no contention by the Blakes, to indicate that any of the officers acted in a personal capacity. Because the individuals were all acting in their official roles, they cannot be held personally liable for any “acts or omissions occurring within the course and scope of [their] duties.” Miss.Code Ann. § 11-46-7(2) (Rev.2002). Therefore, to the degree that the Blakes’ complaint can be construed as attempting to sue various individuals in a personal capacity, summary judgment is properly granted to those individuals.

¶ 23. The MTCA grants immunity for acts committed by a governmental entity and its employees that arises “out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature.” Miss.Code Ann. § 11 — 46—9(l)(a) (Rev.2002). The Blakes contend that this section does not grant immunity here because the officers “are neither members of the legislature nor are they members of the judiciary.” This interpretation of the statute is incorrect, as the statute does not premise immunity on the employee’s actual employment as a member of the judiciary. Instead, the statute grants immunity to governmental employees whose conduct arises out of a judicial action. The situation in this case, which involves a judicial custody order, arises out of a judicial action. The Blakes further contend that this section cannot grant immunity unless the judicial officer in question is employed in Mississippi, but no such limitation exists in the MTCA. Therefore, the officers are entitled to immunity under section 11 — 46—9(l)(a), and no genuine issue of material fact has been presented to indicate otherwise.

¶ 24. Further, the MTCA grants immunity to governmental employees engaged in “the performance or execution of .duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.” Miss. Code Ann. § 11 — 46—9(l)(c) (Rev.2002). The Blakes contend that this section should not apply to the officers because the enforcement of a custody order is not a police protection matter, or, in the alternative, that the officers acted with reckless disregard for the Blakes’ well-being. We note that the MTCA is worded broadly to include any activity “relating” to police protection. Therefore, we find that the enforcement of a custody order would be related to police protection, within the meaning of the MTCA. Furthermore, there is nothing in the record to indicate that the officers acted with reckless disregard for the safety or well-being of the Blakes. There is no doubt that the enforcement of the custody order was an unpleasant task, and that relations between the Blakes and the officers were less than amicable during the course of the incident. However, we find nothing in the record to suggest that the officers acted with “reckless disregard” in enforcing the custody order. Therefore, this section also provides immunity to the officers.

¶ 25. Finally, the MTCA grants immunity to governmental employees who act “[b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.” Miss.Code Ann. § 11 — 46—9(1)(d) (Rev.2002). While we find that the officers' actions were primarily dictated by a judicial decree, a review of the record reveals that the officers also acted with discretion and were forced to make choices that involved “social, economical, or political policy alternatives.” Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 925(¶ 19) (Miss.2006) (citing Doe v. State ex rel. Miss. Dep’t of Corrs., 859 So.2d 350, 356(¶ 23) (Miss.2003)). Therefore, the officers are also entitled to summary judgment due to discretionary function immunity.

Qualified Immunity

¶ 26. There are two considerations in determining whether qualified immunity exists for an official’s actions: whether a plaintiff has suffered a violation of a constitutional right, and whether the defendant acted in an objectively reasonable fashion. Harris v. Miss. Valley State Univ., 873 So.2d 970, 979(¶ 18) (Miss.2004). The constitutional right violated must be clearly established, meaning that “the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 980(¶ 19) (quoting Elkins v. McKenzie, 865 So.2d 1065, 1077(¶ 38) (Miss.2003)). A defendant’s actions are objectively reasonable “unless all reasonable officials in the defendant’s circumstances would have known that their conduct violated the United States Constitution or [a] federal statute.” Id. (citing Elkins, 865 So.2d at 1077(¶ 38)).

¶ 27. The Blakes contend that the officers cannot succeed under either prong of the test above. Specifically, they argue that it is clear that Christopher’s right to custody of his children “was clearly established by not one, but five, orders of the Chancery Court of Rankin County....” Under the circumstance in this case, where the officers were presented with a facially valid Virginia order granting custody of the children to Lauren, we cannot say that the officers violated one of the Blakes’ clearly established rights. At the time of the incident, Christopher’s custody rights were far from clearly established, despite the presence of contradictory orders from the Rankin County Chancery Court. Therefore, since the Blakes have been unable to meet the first prong of the test, the officers are entitled to qualified immunity. Id. at 979(¶ 18).

¶ 28. Furthermore, even if the Blakes were able to successfully meet the first prong of the test, the officers acted in an objectively reasonable fashion in enforcing the filed custody order. In objecting to the reasonableness of the officers’ actions, the Blakes contend that: (1) the officers were on notice because they were aware of the Rankin County Chancery Court file; (2) the officers had been made aware of Christopher’s custody of the children both by the Blakes and by Judge Zebert; (3) the officers would not delay their enforcement of the custody order until the following day; (4) the officers refused to call Judge Zebert for guidance on the enforcement of the custody order; (5) the officers denied the Blakes notice; (6) the officers’ actions were in violation of various statutory regulations; (7) the officers erred in enforcing the Virginia order; (8) the officers were not obligated to enforce the Virginia custody order; (9) the officers did not follow Judge Zebert’s advice after speaking to him on the phone; and (10) the officers did not properly conduct themselves during the enforcement of the custody order.

¶ 29. Much of the above concerns whether the officers were aware of the Rankin County custody decrees. Regardless of whether the officers were aware of Christopher’s custody papers, the Virginia custody order was more recent, was valid on its face, and had been properly filed in Rankin County. We cannot say that every official in the same position would believe that his or her conduct violated the Consti: tution or a federal statute. Therefore, it was objectively reasonable for the officers to enforce the Virginia order. As to the rest of the Blakes’ contentions, we also find that the officers’ conduct was objectively reasonable. In fact, as we have found, the officers did not violate the Constitution or any statute. Therefore, the officers are entitled to qualified immunity, and summary judgment was properly granted on this ground as well.

Ability to Prove All Elements of Claims

¶ 30. Finally, we note that summary judgment was properly granted on many of the Blakes’ claims because they were unable to provide a genuine issue of material fact regarding their entitlement to recovery. For example, the Blakes sued under a theory of false imprisonment due to Robert’s confinement and placement in handcuffs. There are two elements to a successful claim for false imprisonment: detention and the “unlawfulness of such detention.” Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 720(¶ 28) (Miss.2001) (citations omitted). Although there is no doubt that Robert was detained, the record is sorely lacking as to evidence of the unlawfulness of that detention. As law enforcement officers attempted to carry out the custody order, Robert refused them entry to his home and argued with them. Eventually, he was placed in handcuffs and detained in a patrol car. He was not arrested, nor charged with any crime, and he was released after the officers gained custody of the children. Under the uncontested facts of this case, Robert’s detainment was not unlawful. Therefore, the Blakes have failed to present a genuine issue of material fact concerning their claim for unlawful imprisonment.

¶ 31. The Blakes also claim that the officers’ actions amounted to an abuse of process. An abuse of process occurs when a party misuses a legal process with an ulterior motive for doing so, and damage results from the misuse of the process. Ayles v. Allen, 907 So.2d 300, 303(¶ 10) (Miss.2005). Here, there is no evidence in the record that the officers misused a legal process, nor that they had an ulterior motive in enforcing the Virginia order. The Blakes contend that the officers misused the Virginia order, but it is unclear to this Court how the officers misused what appeared to be a valid and binding order that had been filed in the Rankin County courthouse. Regardless of the presence of the Rankin County custody order, the Virginia order was facially valid and had been properly filed in Rankin County. Therefore, from all appearances, the Virginia order was entitled to full faith and credit and enforcement by the officers. Even if the officers were not entitled to immunity on other grounds, summary judgment would be proper as to the Blakes’ abuse of process claim.

¶ 32. The Blakes also sued on a theory of intentional infliction of emotional distress. In order to recover, the Blakes must show that “the [defendants’] conduct evokes outrage or revulsion.” Gamble v. Dollar Gen. Corp., 852 So.2d 5, 11(¶ 19) (Miss.2003) (citations omitted). Since no genuine issue of material fact has been presented to indicate that the officers’ actions were outrageous or evoked revulsion, summary judgment is properly granted as to the Blakes’ intentional infliction of emotional distress claim. Furthermore, we find that the Blakes’ claims as to negligent infliction of emotional distress were properly dismissed at summary judgment because the Blakes did not provide any genuine issue of material fact regarding the elements of negligence: duty, breach, causation, and harm. See Chisolm v. Miss. Dep’t of Transp., 942 So.2d 136, 144(¶ 19) (Miss.2006).

¶ 33. Several of the Blakes’ claims are vulnerable to summary judgment because no genuine issue of material fact has been presented regarding the validity of those claims. Furthermore, regardless of whether a genuine issue of material fact exists regarding the specific claims, the officers are clearly entitled to summary judgment on the basis of multiple immunities contained in the MTCA, as well as qualified immunity.

5. Upholding of Virginia Order

¶ 34. As we have already found, the court’s grant of summary judgment does not uphold or affirm the validity of the Virginia custody order. Therefore, this final contention is also without merit.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . Wilson and Lawrence are both attorneys. Pennington is the Rankin County Sheriff, and Luke is a deputy with Rankin County. In the interest of brevity, we will refer to the Appel-lees collectively as "the officers.”

      . Filings in the Virginia court that were included in our record indicate that Christopher drove to Virginia, where he picked up the children. However, in the Blakes’ brief, Christopher indicates that he and Lauren met half-way between Mississippi and Virginia in order to exchange the children.

      . Rule 4.04(A) reads in part: "All discovery must be completed within ninety days from service of an answer by the applicable defendant. Additional discovery time may be allowed with leave of court upon written motion setting forth good cause for the extension.”

      . The proposed order and attached letter of protest are not in the record, but were attached to the Blakes' brief. Although we ordinarily do not consider material that appears outside the record, in this case, the officers do not contend that the letter did not exist or was not sent to the court.

      . The MTCA also grants immunity to any governmental entity or employee who exercises ordinary care and acts "in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid." Miss. Code Ann. § 11-46-9(1)(b) (Rev.2002). The officers urge this Court to find that this provision also shields them from liability in the instant matter, because of their reliance on former Mississippi Code Annotated section 93-23-29, which concerned the filing and enforcement of foreign custody decrees. As we find that other provisions of the MTCA more than adequately cover the officers' immunity from suit, we decline to further address this contention.

      . There has been no compelling allegation that the officers were not acting in the course and scope of their employment. Having been presented with what appeared to be a facially valid custody order, the officers then went about enforcing that order. Even if this Court were to accept the Blakes’ argument that the officers acted unreasonably in relying on the order, there is still no doubt that any errors were committed in the course and scope of the officers’ employment.

      . The Blakes point out that the officers allegedly were friendly with Lauren, that they "bullied” Christopher, that they "forced” their way into Robert's house, and that Robert was placed in handcuffs during the incident.

      . The Blakes would not be required to show that the officers' conduct evoked outrage or revulsion if they had suffered a physical injury. Gamble, 852 So.2d at 11(¶ 19). However, there is no evidence that either of the Blakes suffered physical injuries as a result of the officers' actions.


author: LEE, P.J.,

text:
    Robert WILLIAMS, Appellant v. Hugh R. THOMPSON, Ike Long and State Farm Fire & Casualty Company, Appellees.
    No. 2005-CA-02038-COA.
    Court of Appeals of Mississippi.
    July 17, 2007.

      Leman D. Gandy, Greenwood, attorney for appellant.
    Dan W. Webb, Amy Stokes Harris, Tu-pelo, Roechelle Ryann Morgan, attorneys for appellees.
    Before LEE, P.J., IRVING and CHANDLER, JJ.
   LEE, P.J.,

for the Court.

FACTS

¶ 1. Robert and Angela Williams were joint owners of a home and property in Greenwood, Mississippi, that was insured by a homeowners’ policy issued by State Farm Fire and Casualty Co. When the Williams divorced in September 1998, Angela was awarded sole use and possession of the home. Angela forwarded a copy of the divorce decree to the couple’s State Farm agent, Hugh R. Thompson. In accordance with company guidelines, State Farm changed the policy, effective January 12, 2000, to reflect Angela as the named insured and Robert as an additional insured.

¶ 2. On December 23, 1998, the home was damaged during an ice storm. The claim was not reported until December 1, 1999, and the loss was inspected by State Farm on December 20, 1999. State Farm issued a check for $1,746.43 for the damage to the house. The check was made out to Robert Williams and his mortgage company and was mailed to the address of the damaged home. The check was never cashed. State Farm was not aware at this point that Robert was no longer living at the address. Robert complained that he never received the check and a subsequent check was issued. However, the second check was issued to Angela Williams as State Farm was notified of the divorce decree awarding Angela sole use and possession of the home between the issuance of the first and second checks. The second cheek was never cashed and was later voided by the insurance company.

¶ 3. In March 2000, Angela moved out of the marital home. Ike Long, underwriter for State Farm, sent a letter dated June 9, 2000, to Robert advising him that the homeowners’ policy would be “non-renewed” effective July 12, 2000, due to the fact that Angela had moved and the property was vacant. Angela failed to meet the conditions of the divorce decree and was made to convey her interest in the property by warranty deed to Robert on June 15, 2000. The property remained vacant until July 2000 when Robert moved in the house.

¶ 4. On July 11, 2000, Robert re-applied for homeowners’ insurance on the house. In a letter dated August 28, 2000, Long informed Robert that his application for insurance coverage on the home would be cancelled as of September 11, 2000. Specifically, the letter stated that the home did not qualify for coverage because “the roof had been deteriorated in some areas and needed replacing.” This deterioration was a result of the ice storm in 1998 for which State Farm issued payment, but repairs were never made. Robert admitted that at the time he applied for homeowners’ insurance following cancellation of the original policy due to vacancy, his roof had not been repaired. Robert admitted that a check for $3,100 was issued to him, his attorney, and his mortgage company in full and final payment of any and all roof claims associated with the property. Robert accepted and endorsed the check.

PROCEDURAL HISTORY

¶ 5. On May 21, 2001, Robert filed a complaint in the Circuit Court of Leflore County against State Farm, Thompson, and Long, alleging wrongful termination of the homeowners’ policy insuring the Williams’s home in Greenwood. On September 24, 2003, State Farm filed a motion to dismiss or, in the alternative, for summary judgment or, in the alternative, for partial summary judgment. The motion was heard by the circuit court, and an order was entered granting summary judgment in favor of State Farm on September 22, 2005.

¶ 6. Williams now appeals to this Court arguing that the trial court erred in granting summary judgment in favor of State Farm, Thompson, and Long.

¶ 7. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 8. This Court applies a de novo standard of review to the grant or denial of summary judgment by a trial court. Leffler v. Sharp, 891 So.2d 152, 156(¶ 9) (Miss.2004). When the evidence is considered in the light most favorable to the non-moving party, there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. M.R.C.P. 56(c); Russell v. Orr, 700 So.2d 619, 622(¶10) (Miss.1997).

DISCUSSION

¶ 9. In arguing that summary judgment in favor of State Farm, Thompson, and Long was not appropriate, Robert points to three issues that he asserts present genuine issues of material fact.

¶ 10. First, Robert argues that it is disputed whether “State Farm wrongfully paid Angela Williams solely, to the exclusion of Robert Williams, for the roof damage.” This assertion does not present a genuine issue of material fact as the parties admit that State Farm correctly issued the check solely to Angela. After the Williamses divorced, Angela was awarded sole use and possession of the home. In accordance with company guidelines, State Farm changed the policy to reflect Angela as the named insured and Robert as an additional insured. When the check was issued, Angela was the named insured and, thus, the check was properly issued in her name.

¶ 11. Second, Robert asserts that it is disputed whether “State Farm, without reasonable justification, removed appellant, Robert Williams’ [sic], from the homeowner’s policy.” This issue is without merit as Robert was never removed from the policy but was changed to an additional insured.

¶ 12. The third issue that Robert asserts presents a genuine issue of material fact is whether “State Farm wrongfully terminated Robert Williams’ coverage under the second homeowner’s policy.” State Farm declined to insure the home the second time because the roof needed replacing before a policy could be issued. Robert admitted that at the time he applied for homeowners’ insurance the roof had not been repaired. The reason for the termination of the second policy was the condition of the roof and was not related to the first policy.

¶ 13. Robert also calls to this Court’s attention a misstatement in the trial court’s order. The trial court stated that Robert alleged that State Farm charged him a higher premium for a new homeowners’ policy. However, Robert’s actual allegation was that he was “forced to go to another company and was charged a much higher premium.” We do not find this misstatement material as this fact had no bearing on the decision of the trial court.

¶ 14. After reviewing the record, we cannot find that these three assertions present a genuine issue of material fact. Summary judgment in favor of State Farm, Thompson, and Long was appropriate.

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

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