author: BARNES, J.,

text:
    Jimmy HUTSON, Appellant v. STATE FARM FIRE & CASUALTY COMPANY, Appellee.
    No. 2005-CA-01742-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.

      Lara E. Gill, Ronald Keith Foreman, John Mark Franklin, attorneys for appellant.
    Samuel Huntley Williford, Reeve G. Ja-cobus, Ridgeland, attorneys for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. State Farm filed a complaint in the Hinds County Court as subrogee to the rights of Joy Hutson, whose husband and coinsured under a State Farm homeowner’s policy, Jimmy Hutson, intentionally destroyed property covered under that policy. The county court jury rendered a verdict in favor of State Farm, and the Circuit Court of the First Judicial District of Hinds County subsequently affirmed. Aggrieved by the judgment of the circuit and county courts, Mr. Hutson now appeals, asserting that the anti-subrogation rale precludes recovery by an insurer against its insured or coinsured. Finding no reversible error in the judgments below, we affirm.

SUMMARY OF FACTS

¶ 2. The modicum of facts underlying this case are essentially undisputed. Jimmy and Joy Hutson were married, but living apart, during the period of time relevant to this appeal. The Hutsons were both named insureds under a homeowners policy issued by State Farm Fire & Casualty Company (“State Farm”). This policy covered damage to the dwelling and contents of the Hutsons’ marital home and was in effect on August 29, 1998, the day the property damage at issue in this case occurred. Approximately two weeks prior to this date, Mr. Hutson left the marital home and was residing apart from Ms. Hutson, who remained at the insured residence. In the interim, Ms. Hutson changed the locks on all the doors to the house to prevent Mr. Hutson from accessing the home.

¶ 3. On the night of August 29,1998, Mr. Hutson went to Ms. Hutson’s residence and, noticing that no one was there, attempted to gain access using his house key. Upon learning that the locks had been changed, Mr. Hutson kicked in an exterior door and went inside the house, damaging furniture, antiques, and other personal items belonging to Ms. Hutson. Mr. Hutson also gathered several items of Ms. Hutson’s clothing, took them outside, and set them on fire. Ms. Hutson filed a claim with State Farm under the homeowners policy for the damage to the dwelling and contents of the house. Because of the pending divorce between the Hutsons and the uncertain property settlement that could result thereto, State Farm interpled the insurance proceeds into the registry of the chancery court where the divorce was pending. The chancery court determined that Ms. Hutson was entitled to the entire amount interpled by State Farm, which consisted of $2,497.81 paid for damage done to the dwelling and $4,340.76 for contents damage.

¶ 4. State Farm subsequently filed suit in Hinds County Court against Mr. Hutson as subrogee to the claim Ms. Hutson had against Mr. Hutson for the intentional destruction of her property. State Farm prayed for the entire amount of $6,838.57, representing the amounts paid for damage done to the dwelling as well as for damage done to the contents of the dwelling; the jury, however, awarded State Farm only $2,170.38, representing an amount the jury determined to be attributable to the damage done to Ms. Hutson’s property, as distinguished from mutually owned property. Mr. Hutson timely filed this appeal, arguing that the anti-subrogation rule prohibits an insurer from recovering from its insureds. Mr. Hutson does not dispute that he intentionally destroyed property covered under the policy, nor does he dispute that State Farm was obligated under the policy to pay Ms. Hutson’s claim. Rather, Mr. Hutson contends that as a coinsured under the homeowners policy at issue, State Farm’s subrogation claim against him was prohibited by the anti-subrogation rule. Finding no merit in Mr. Hutson’s argument, we affirm.

STANDARD OF REVIEW

¶ 5. Whether an insurer may sub-rogate to the claim one insured has against a coinsured is a question of law. We review questions of law, including questions regarding the construction and interpretation of subrogation clauses in insurance contracts, de novo. Capital City Ins. Co. v. Ringgold Timber Co., Inc., 898 So.2d 680, 681-82(¶4) (Miss.Ct.App.2004) (citing Warwick v. Gautier Utility Dist., 788 So.2d 212, 215(¶ 8) (Miss.1999)).

DISCUSSION

¶ 6. The matter before this Court appears to raise an issue of first impression in Mississippi. Particularly, whether the anti-subrogation rule would bar a subrogation claim under the facts presented is a question that has not been answered by either this Court or by the Mississippi Supreme Court. Other jurisdictions have, however, addressed similar issues in analogous circumstances. It is upon these authorities that we base our decision affirming the judgment of the courts below. In support of our decision, we will begin by discussing the general law of subrogation and whether the requirements for subro-gation were met in the instant case. We will then discuss the anti-subrogation rule and the various arguments advanced by Mr. Hutson in support of his contention that the rule is applicable to the case sub judice.

1. WHETHER THE REQUIREMENTS FOR SUBROGATION WERE MET IN THIS CASE

¶ 7. Subrogation has been defined by the Mississippi Supreme Court as follows:

Subrogation is the substitution of one person in the place of another, whether as a creditor or as the possessor of any rightful claim, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and to its rights, remedies, or securities.

Ellis v. Powe, 645 So.2d 947, 951 (Miss.1994) (quoting St. Paul Prop. & Liab. Ins. Co. v. Nance, 577 So.2d 1238, 1240-41 (Miss.1991)). The subrogee “steps into the shoes of the subrogor” with respect to the debt or claim. Id. (citing Nance, 577 So.2d at 1241). Subrogation “is a creature of equity, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in equity and good conscience, ought to pay it.” Oxford Prod. Credit Ass’n v. Bank of Oxford, 196 Miss. 50, 67, 16 So.2d 384, 388 (1944).

¶ 8. With respect to the damage caused to Ms. Hutson’s property, if Ms. Hutson could have maintained an action against Mr. Hutson to recover damages, then State Farm presumptively had the right, pursuant to the subrogation clause contained in the Hutsons’ homeowners policy, to “step into the shoes” of Ms. Hutson and maintain an action to recover for the claim which State Farm was obligated to pay. Mr. Hutson does not challenge the legal sufficiency of the substantive causes of action underlying the subrogation claim, nor does he challenge the factual determination reached by the jury in itemizing and segregating the claim paid by State Farm. Instead, Mr. Hutson argues that the anti-subrogation rule prohibits an insurer from subrogating against an insured or coin-sured, and he argues further that this rule is applicable to the instant case. For reasons that we will now discuss, we find Mr. Hutson’s argument to be without merit.

II. WHETHER THE ANTI-SUBRO-GATION RULE IS APPLICABLE TO THE FACTS OF THIS CASE

¶ 9. Although not universally referred to as the “anti-subrogation rule,” the rule itself embodies a principle which is widely accepted in the area of insurance law. As stated by Professor Jeffrey Jackson in his treatise on Mississippi Insurance Law & Practice, “an insurer which compensates its insured under an insurance policy requirement may not then pursue the insured under subrogation on the grounds that the insured, through negligence, was the cause of the compensated injuries.” Jeffrey Jackson, Miss. Ins. L. & P. § 13:14 (MLI Press 2001). Stated differently, an “insurer has no right of subro-gation against its own insured for a claim arising from the very risk for which the insured was covered ... even where the insured has expressly agreed to indemnify the party from whom the insurer’s rights are derived.” ELRAC, Inc. v. Ward, 96 N.Y.2d 58, 76, 724 N.Y.S.2d 692, 748 N.E.2d 1 (N.Y.2001) (quoting Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 468, 510 N.Y.S.2d 67, 502 N.E.2d 982 (N.Y.1986)). While we acknowledge the overwhelming support for the principles underlying the anti-subrogation rule, we are not persuaded that its application is warranted in the instant case.

¶ 10. In holding that subrogation was appropriately allowed in the instant case, we are careful to distinguish the facts of this case from the usual circumstances governed by the anti-subrogation rule, where “[t]o allow subrogation ... would permit an insurer, in effect, to pass the incidence of the loss ... from itself to its own insured and thus avoid the coverage which its insured purchased.” Home Ins. Co. v. Pinski Bros., 160 Mont. 219, 500 P.2d 945, 949 (1972). As will be shown, State Farm did not assume the risk that its own insured, Mr. Hutson, would intentionally damage the insured property. Accordingly, State Farm paid the property loss claim at issue not because of Mr. Hutson’s status as an insured, but because of Ms. Hutson’s status as an insured under the homeowners policy.

¶ 11. Mr. Hutson cites authority from various jurisdictions to support his argument. In Union Mutual Fire Insurance Co. v. Joerg, 175 Vt. 196, 824 A.2d 586 (2003), the Vermont Supreme Court acknowledged that “ ‘an insurer cannot recover by means of subrogation against its own insured’ ... [and][t]his prohibition extends to coinsureds under the policy, both express and implied.” Id. at 589 (quoting Peterson v. Silva, 428 Mass. 751, 704 N.E.2d 1163, 1164 (1999)). While we do not question the statement of law contained in Joerg, we note that the factual circumstances and the issues presented in that case are not analogous to the facts and issues presented in the instant case. The property damages at issue in Joerg were negligently caused by a tenant of the insured landlord, and the principal issue was whether the tenant was a coinsured under the landlord’s policy. The Joerg court held that “where a lease requires the landlord to carry fire insurance on the leased premises, ... the tenant is deemed a coinsured under the landlord’s insurance policy and is protected against subrogation claims by the landlord’s insurer.” Id. at 591. Finding that the lease at issue con-tamed such a requirement, the Vermont Supreme Court held the tenant to be a coinsured and thus not subject to a subro-gation claim. Id. at 591-92. Unlike the situation in Joerg involving a negligent act and implied coverage, the case sub judice involves intentional acts and express coverage. Mr. Hutson cites numerous other authorities from various jurisdictions which invariably support the anti-subrogation rule, but, like Joerg, are similarly inapposite due to the factual distinctions.

¶ 12. LaSalle National Bank v. Massachusetts Bay Insurance Co., 958 F.Supp. 384 (N.D.Ill.1997), however, involved analogous facts and addressed similar issues to the facts and issues before this Court. In LaSalle, the insurance companies made various payments to the insured wife for the destruction of the marital house. Id. at 385. The insurance companies refused, however, to pay the husband, claiming that he intentionally set the fire that destroyed the house. The district court considered the holdings of various state courts in determining that an insurer could subrogate against an insured arsonist. Id. at 387-89 (citing Madsen v. Threshermen’s Mut. Ins. Co., 149 Wis.2d 594, 439 N.W.2d 607 (1989); Ambassador Ins. Co. v. Montes, 76 N.J. 477, 388 A.2d 603, 606-08 (1978)). In explaining this departure from the general anti-subrogation rule, the district court explained that “[a]n insurance company that dutifully honors the claims of innocent third parties should be allowed to seek reimbursement from the insured arsonist; any other rule would discourage rightful claims by innocent third parties.” Id. at 387, 388 A.2d 603 (citing Ambassador, 388 A.2d at 606-07). The court pointed out, however, that this “principle makes sense only for an intentional wrongdoer (such as an arsonist), not for a negligent wrongdoer (such as [a] careless smoker).” Id. at 387 n. 6, 388 A.2d 603.

¶ 13. Mr. Hutson contends that the holding of LaSalle is inapplicable to the instant case, pointing out that the insurance policy at issue in LaSalle contained a provision excluding losses caused by the intentional acts of an insured. The State Farm policy at issue in the instant case provided coverage for “willful and malicious damage to or destruction of property” and excluded coverage for intentional loss to property only if that loss was caused “for the purpose of obtaining insurance benefits.... ” State Farm does not dispute Mr. Hutson’s assertion that he did not cause property damage for the purpose of obtaining insurance benefits. Accordingly, Ms. Hutson was entitled to coverage for the “willful and malicious damage” to her property caused by Mr. Hutson; however, Mr. Hutson was not entitled to coverage for his intentional acts, despite the absence of an express exclusion. Our supreme court has stated that “[ujnder Mississippi law, wilful incen-diarism by an insured is a defense to the insurer’s liability ... even if the insurance policy does not expressly exclude coverage for wilful burning.” McGory v. Allstate Ins. Co., 527 So.2d 632, 634 (Miss.1988) (citing Davidson v. State Farm Fire & Cas. Co., 641 F.Supp. 503, 507 (N.D.Miss.1986); Sullivan v. Am. Motorist Ins. Co., 605 F.2d 169, 170 (5th Cir.1979)); see also 5-143 Appleman on Ins. § 3113 (stating that “the insured’s willful burning of the property would be an absolute defense to an action upon the policy”). We therefore find Mr. Hutson’s attempt to distinguish the facts of LaSalle unpersuasive.

¶ 14. Our decision to adopt the reasoning of the court in LaSalle is not affected by Mr. Hutson’s argument “that subrogation exists only with respect to rights of the insurer against third persons to whom the insurer owes no duty.” Allstate Ins. Co. v. LaRandeau, 261 Neb. 242, 622 N.W.2d 646, 650 (2001). Again, we note that Mr. Hutson recites a generally accepted principle of insurance law; however, this principle is not applicable to the case sub judiee. As between Ms. Hutson and State Farm, Mr. Hutson was a third party to whom State Farm owed no duty. The foregoing discussion of our supreme court’s holding in McGory demonstrates that Mr. Hutson’s intentional acts foreclosed any duty State Farm may have owed to Mr. Hutson under the policy with respect to the intentionally damaged property. Cf. id. (finding that insured husband was a third party to the relationship between insurer and coinsured wife because husband’s intentional acts absolved insurer of any duty to him). Accordingly, State Farm owed no duty to Mr. Hutson which would preclude State Farm’s subrogation claim under the facts of this case. We find Mr. Hutson’s argument to the contrary to be without merit.

¶ 15. We also find unpersuasive Mr. Hutson’s argument that “[sjubrogation by an insurer against its insured on a covered claim creates a conflict of interest.” While this statement may be correct on its face, it is simply not applicable to the facts of the instant case. First, as has been discussed, Mr. Hutson was not entitled to first party coverage for the intentional destruction of his property. If Mr. Hutson had filed a claim to recover for the damage that he caused, State Farm would not have been obligated to pay. See McGory, 527 So.2d at 634 (holding no coverage for damage from intentional fire despite absence of express exclusion). Second, Mr. Hutson’s argument regarding State Farm’s obligation “to indemnify up to the limits of the policy all sums the insured becomes legally obligated to pay” is wholly without merit. The State Farm homeowners policy at issue includes the following exclusion from liability coverage:

1. Coverage L [personal liability] and Coverage M [medical payments to others ] do not apply to:
a. bodily injury or property damage:
(1) which is either expected or intended by an insured....

Because Mr. Hutson intended the damage to Ms. Hutson’s property, he would not be entitled to either personal liability coverage from State Farm or to a defense provided at State Farm’s expense. Simply stated, State Farm paid the claim at issue pursuant to Ms. Hutson’s first party property coverage, not because of Mr. Hutson’s liability coverage. As to Mr. Hutson, State Farm had no duty to cover the intentional property damage, based on either a first party property claim or a third party liability claim. Accordingly, we find no potential for conflict where an insurer is allowed to subrogate against a coinsured for a claim that, as to that eoinsured, is not covered by the policy.

¶ 16. As noted above, Joerg and other cases cited by Mr. Hutson involved negligence rather than intentional damage to property. Finding no Mississippi authority on point, we find the holding of the United States District Court for the Northern District of Illinois in LaSalle National Bank v. Massachusetts Bay Insurance Co., 958 F.Supp. 384 (N.D.Ill.1997) to be persuasive. The facts and issues underlying LaSalle are analogous to the facts and issues presented in the instant case. Furthermore, allowing State Farm to recover for amounts paid covering the damages intentionally caused by Mr. Hut-son does not offend the general principles of insurance law embodied by the anti-subrogation rule, and promotes the equitable purposes of subrogation. According to our supreme court, subrogation “is a creature of equity, and is the mode which equity adopts to compel the ultimate payment of a debt by one who, in equity and good conscience, ought to pay it.” Oxford Prod. Credit Ass’n v. Bank of Oxford, 196 Miss. 50, 67, 16 So.2d 384, 388 (1944). We find that “equity and good conscience” certainly supports our decision to allow subro-gation against an intentional tortfeasor, Mr. Hutson.

CONCLUSION

¶ 17. For the reasons set forth above, we find that State Farm was properly allowed to maintain its subrogation claim against Jimmy Hutson. Accordingly, we find no reversible error and affirm the judgment of the circuit court.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . State Farm has not cross-appealed the judgment awarding a lower damage amount than the amount originally prayed for.

      . The jury at the trial on the merits of this case was instructed to determine which of the destroyed items, if any, belonged to Ms. Hut-son. The jury awarded damages based only on the amount of loss to these items, segregating the damages caused to Ms. Hutson's personal property from damages to property owned mutually with Mr. Hutson or owned by him exclusively.

      . As will be discussed more fully below, Mississippi adheres to the principle that willful destruction of property by an insured is a defense to the insurer’s liability, despite the absence of an express exclusion to this effect. Also discussed below is a provision in the policy at issue which expressly excludes liability coverage for intentional acts by an insured.

      . The issue of whether Ms. Hutson would have been entitled to coverage as an "innocent spouse” if Mr. Hutson had intentionally destroyed the insured property for the purposes of obtaining insurance proceeds was not presented for our review. Accordingly, we do not express any opinion as to that issue, and our holding should not be construed as doing so.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    In the Matter of CONSERVATORSHIP OF Lauree DAVIS: Alvin Peyton, Appellant v. John J. Longo, Sr., Appellee.
    No. 2005-CA-01710-COA.
    Court of Appeals of Mississippi.
    April 17, 2007.
    Charles Bradford Martin, Howard Brown, Charles E. Griffin, Jackson, attorneys for appellant.

      John D. Sutton, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Alvin Peyton appeals the chancellor’s decision to dismiss Peyton’s petition to remove John Longo as the conservator of Lauree Davis and to set aside a fraudulent conveyance. The chancellor determined that Peyton did not have standing to proceed with his petition. In this appeal, Peyton raises five issues and argues that the chancellor erred in: (1) dismissing the petition for lack of standing, (2) not removing the conservator, John Longo, (3) not setting aside the November 3, 2004 warranty deed, (4) not removing the conservator for failure to file the required inventory, and (5) not requiring Longo to appear and show cause why he should not be removed. We find that Peyton had standing to pursue this claim. We therefore reverse and remand this case for further proceedings.

FACTS

¶2. On November 29, 2004, John L. Longo, Jr. and Harvest Mackey filed a petition for appointment of conservator of Lauree Davis. Longo claimed to be the “informally adopted son of’ Ms. Davis, and Mackey claimed to be the maternal uncle and closest living relative of Ms. Davis. The petition included two physician’s reports of the condition of Ms. Davis, dated November 22 and 24, 2004, that determined her to be incapable of managing her own affairs due to her physical condition and mental weakness.

¶ 3. By order dated December 8, 2004, the chancellor appointed Longo as the conservator of Ms. Davis’ person and estate. Longo executed and filed the oath, along with the required bond. He was issued letters of conservatorship on the same day.

¶ 4. On January 24, 2005, Alvin Peyton filed his petition to remove the conservator and to set aside fraudulent conveyance. In the petition, Peyton claimed that Ms. Davis executed a will on June 6, 1995, that appointed him the executor of her estate and that devised and bequeathed her entire estate to Peyton’s three daughters, Brittney Marie Peyton (age 19), Brandi Renee Peyton (age 16), and Brean-na Patrice Peyton (age 12). A copy of the will was attached to the petition. The petition also claimed that “[o]n November 3, 2004, Ms. Davis purportedly conveyed over eighty acres of real property located in Lawrence County to John Longo pursuant to a ‘warranty deed.’ ” A copy of the warranty deed was attached to the petition. The petition challenged Longo’s appointment as conservator and claimed that the November 3, 2004 warranty deed was a fraudulent conveyance. The petition demanded that Longo be removed as conservator, that Peyton be substituted as conservator, that the November 3, 2004 conveyance be set aside, and that Longo be required to provide an accounting.

¶ 5. On February 22, 2005, a hearing was held on Peyton’s petition. Longo’s counsel made an ore tenus motion to dismiss the petition. The chancellor questioned whether Peyton had standing to bring the petition. Peyton argued that his standing was derived from the interest of his minor daughters. To establish their interest, Peyton referred to Ms. Davis’ June 6, 1995 will that left her entire estate to Peyton’s minor children and named Peyton the executor.

¶ 6. The chancellor determined that Pey-ton lacked standing and dismissed the petition. The chancellor’s order, dated February 22, 2005, held that:

2. The Petitioner herein, to-wit: Alvin Peyton, can assert no standing in this matter than that as the named Executor under the Last Will and Testament of Lauree Davis, dated June 6,1995;
3. That without addressing the validity of said Last Will and Testament, said instrument imparts no standing to the Petitioner so long as Lauree Davis remains alive, as she is now;
4. That, since the Petitioner lacks sufficient standing to bring this matter, said Petition to Remove Conservator should be, and the same is hereby, dismissed with prejudice....

Peyton’s motion for reconsideration was denied.

STANDARD OF REVIEW

¶ 7. Issues of law are reviewed de novo by this Court. Jackson v. Jackson, 732 So.2d 916, 920(¶ 5) (Miss.1999) (citing Bodmon v. Bodman, 674 So.2d 1245, 1248 (Miss.1996)). The question of standing is considered to be an issue of law. Brown v. Miss. Dep’t of Human Servs., 806 So.2d 1004, 1005(¶ 4) (Miss.2000).

ANALYSIS

I. Whether the chancellor abused his discretion in ruling that Peyton did not have standing to go forward with his petition to remove the conservator and to set aside the transfer of real property based on fraud.

¶ 8. Peyton’s first issue challenges the chancellor’s determination that Peyton had no standing to bring the petition. Mississippi Code Annotated Section 91-7-285 (Rev.2004) is titled “Process for derelict fiduciary,” and it provides:

Whenever it shall appear of record, or otherwise, that any executor, administrator, guardian, receiver, or fiduciary appointed by any chancery court is derelict in the performance of any duty required of him by law or the orders of the court or chancellor, or is liable to be punished or removed for any cause prescribed by law, then such court or the chancellor in vacation may, on the application of any interested party or of his or its own motion, order a citation for such executor, administrator, guardian, receiver, or other fiduciary, as the case may be, to be issued by the clerk of the court in which such cause or matter is pending, returnable forthwith or at such time and place, in term time or vacation, as may be specified in such order, to appear and show cause why he should not be removed or punished for contempt, either or both, as may be directed in such order....

(emphasis added).

¶ 9. The term “interested party” is not defined in the statute. Exactly who could be considered an “interested party” will depend on the type of fiduciary that has been appointed. For example, if Longo were the executor of Ms. Davis’ will, there would be no doubt that Peyton’s daughters would be considered an “interested party” in an action under Section 91-7-285. However, this is not a probate matter.

¶ 10. Peyton cites us to the Mississippi Supreme Court decision in Conservatorship of Harris v. King, 480 So.2d 1131 (Miss.1985). Peyton argues that his daughters have a “legitimate interest present or prospective in [Ms. Davis’] estate.” As a result, Peyton concludes that the chancellor erred) in finding he did not have standing to pursue the removal of Longo under Section 91-7-285.

¶ 11. In Harris, Susie Harris’ nephew, Matthew Harris, and three of his brothers filed a petition for a conservatorship over the person and property of Miss Harris. Harris, 480 So.2d at 1131. She had no spouse, children or living siblings. The petition alleged that Miss Harris was “incapable of managing her estate by reason of advanced age and mental weakness.” Id. As a result, the chancellor appointed Matthew Harris as conservator. Id. Soon thereafter, Miss Harris began to complain about Matthew’s actions as her conservator. Id. at 1132. Jackie Tatum, Miss Harris’s guardian ad litem, and Bonnie King, a nurse, neither of whom were related to Miss Harris, filed a petition that documented the problems Miss Harris was having with Matthew and asked that he be removed as conservator. Id. Matthew responded and argued that Tatum and King had no standing and that the allegations were not true. Id. The chancellor determined that Miss Harris’ best interest required Matthew’s removal and appointed King to succeed him. Id.

¶ 12. On appeal, Matthew claimed that Tatum and King had no standing to petition his removal as Miss Harris’ conservator. The supreme court disagreed and affirmed the chancellor’s decision. The court reasoned:

As both parties recognize, Barney v. Barney, 203 Miss. 228, 33 So.2d 823 (1948), controls as to this issue. [Matthew] relies on language in Barney stating that:
we take it as a proposition which can scarcely be disputed that the person who in his own name would petition to have a guardian in an estate removed must be a person who has a legitimate interest present or prospective in that estate, or who has some personal responsibility as regards the estate or the care or welfare of the ward.
[Barney,] (203 Miss. at 230, 33 So.2d at 824).
However, it is evident that the Court is here speaking of a petition as of right. The sentence just quoted is immediately followed by another referring to the receipt of such petitions as a matter of the chancellor’s discretion.
And while it may be true that the chancellor, as superior guardian, might take notice of petitions by strangers in such cases as a matter of information to him openly tendered, they [the petitioners] would have no privilege of appeal if he should refuse to do so.
[Barney,] (203 Miss. at 230, 33 So.2d at 824).
Thus, it seems clear that under Mississippi law the receipt of such petitions is within the chancellor’s discretion. The record before this Court contains nothing that would justify a finding that the chancellor abused his discretion in this regard. On the contrary, the substantial involvement of both Jackie Tatum and Bonnie King with Miss Susie is clear from the record.

Harris, 480 So.2d at 1132 (emphasis added). Thus, the court determined that Tatum and King did not have standing as a matter of right, i.e., a “person who has a legitimate interest present or prospective in that estate.” Id. Instead, the court reasoned that Tatum and King could pursue the petition as strangers and challenge Matthew’s appointment subject to the chancellor’s role as Miss Harris’ “superior guardian.” Id. As a result, the court concluded that there was evidence to support the chancellor’s decision. Id.

¶ 13. In the present case, Peyton and Longo both cite Harris as authority but they argue different Barney principles to support their positions. Peyton claims that he has standing as a matter of right because he and his daughters have a legitimate prospective interest in Ms. Davis’ estate. Longo claims that Peyton is a stranger because he and his daughters have no present rights under an unprobat-ed will of a person who is still living.

¶ 14. We begin our analysis with the statute. Section 91-7-285 allows for an “interested party” to filed a petition to remove a fiduciary, i.e. Longo as Ms. Davis’ conservator. The Mississippi Supreme Court, in Barney and Harris, interpreted the term “interested party” to be “a person who has a legitimate interest present or prospective in that estate, or who has some personal responsibility as regards the estate.... ” Harris, 480 So.2d at 1132; Barney, 203 Miss. at 230, 33 So.2d at 824. Thus, in both of these cases, the supreme court rejected the notion that a person is required to have a present interest in the estate of the ward to seek the removal of a fiduciary. Instead, the court clearly stated that an interested party is a person who has a “prospective” interest. “Prospective” is defined as “anticipated or expected; likely to come about.” Black’s Law Dictionary 1238 (7th ed.1999).

¶ 15. Peyton claims that his daughters have a legitimate prospective interest in Ms. Davis’ estate when Ms. Davis executed her will on June 6, 1995, leaving her entire estate to his three daughters. Thus, Pey-ton argues that his daughters will inherit the entirety of Ms. Davis’ estate at her death and the probate of her will. Indeed, there is no certainty that Peyton’s daughters will inherit Ms. Davis’ estate. The will could be revoked, there could be a challenge to the will, or Peyton’s daughters may predecease Ms. Davis. Nevertheless, until such time as one of those events might occur and end the anticipation or expectancy, Peyton’s daughters do in fact have a “prospective” interest in Ms. Davis’ estate.

¶ 16. Longo argues that an unprobated will is not an effective instrument of title. Virginia Trust Company v. Buford, 123 Miss. 572, 595, 86 So. 356, 357 (1920); Robberson v. Burton, 790 So.2d 226, 228(¶ 8) (Miss.Ct.App.2001). Indeed, he is correct. However, this is not an action to determine proper title. Instead, as discussed above, a prospective interest does not have to be guaranteed or certain; rather, it only needs to be an anticipated or expected interest.

¶ 17. Longo also argues that, if we hold Peyton’s daughters to be interested parties, the practical effect require Ms. Davis, as the testator, to obtain the permission of the beneficiaries of a prior will before revoking or changing that will. Longo cites no authority for this proposition. Mere anticipation does not guarantee that Pey-ton’s daughters will be able to maintain their interest. Recognizing that the daughters have a prospective interest is no different than the supreme court recognizing that one can assign a right to inherit from a third person. Bayless v. Alexander, 245 So.2d 17 (Miss.1971). In that event, if the “assignor predeceases the source or if the source prevents the inheritance by execution of a will, then the as-signee will take nothing.” Robert A. Weems, Wills and Administration of Estates in Mississippi, § 1:18 (3d. ed.2003). This argument also ignores the very nature of a conservatorship, which allows for the appointment of a conservator “[i]f a person by reason of advanced age, physical incapacity or mental weakness is incapable of managing his own estate.” Miss.Code Ann. § 93-13-251 (Rev.2004). Certainly, Ms. Davis could revoke her will. However, to do so, Ms. Davis would have to regain testamentary capacity. This is contrary to the physician’s reports that determined she was suffering from mental weakness. It could happen. If it does, the Peytons’ prospective interest would end.

¶ 18. Longo’s final contention is that a 2001 will extinguished any prospective interest the Peytons might have had. This 2001 will was never put into evidence in this case. The only mention of the contents of such will occurred during the hearing, when Longo’s counsel stated that Longo was the executor. Nothing was mentioned as to who the beneficiaries were in the 2001 will. On remand, the chancellor may consider whether the 1995 will was revoked by a subsequently executed will.

¶ 19. Based on the record before us, we find that the chancellor was in error to summarily dismiss Peyton’s petition to remove Longo as Ms. Davis’ conservator. Accordingly, we reverse and remand this case for further proceedings consistent with this opinion.

¶ 20. We add our concern that there are facts in issue that would require the chancellor to consider Peyton’s petition as Ms. Davis’ “superior guardian.” The record contains the November 3, 2004 warranty deed were Ms. Davis conveyed eighty acres of her property to Longo, the most significant asset Ms. Davis owned. A mere nineteen days later, a physician executed a report that declared Ms. Davis is “incapable of managing her own affairs or estate” because of her “physical conditions and mental weakness.” Seven days later, Longo filed a petition to establish a con-servatorship and grant himself the authority to act on behalf of Ms. Davis. The warranty deed, both physician’s reports, and the petition for appointment of conservator were prepared by Longo’s attorney and notarized by the same person, Sonja Rogers. Ms. Rogers also acted as the process server who served process on Ms. Davis. Ms. Rogers’s signature was notarized by the attorney for Longo. The attorney continues to represent Longo in this action. In addition, based on her financial information of record, it appears that Ms. Davis did not receive any monetary proceeds from the sale of the land to Longo and it was a gift. Accordingly, we are of the opinion that the chancellor should have used his authority as Ms. Davis’ “superior guardian” to ensure the legitimacy of the November 3 conveyance of property.

¶ 21. We now turn to the remainder of Peyton’s issues on appeal. In addition to the preceding issue, Peyton argues: (1) that Longo should be removed due to a conflict of interest; (2) that a fraudulent transfer of real property occurred; (3) that Longo should be removed due to a lack of filed inventories; and (4) that the chancellor should have required Longo to show cause due to dereliction of duty. After finding that Peyton lacked standing, the chancellor refused to address the merits of the claims alleged in Peyton’s petition. Accordingly, we conclude that these issues are not properly before us and should be addressed by the chancellor on remand.

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

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


text:
    Anee HAWKINS, Appellant v. SMITH COUNTY, Mississippi, Appellee.
    No. 2004-CA-01117-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.

      Paul E. Rogers, Jackson, attorney for appellant.
    Stanley A. Sorey, Raleigh, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Smith County obtained a permanent injunction against Anee Hawkins to prevent him from placing any object along or across Smith County Road 12. On appeal, Hawkins argues that Smith County Road 12 is not a public road or, in the alternative, that the County has exceeded the boundaries of the public road by upgrading it. We find no error and affirm.

FACTS

¶ 2. Hawkins is the record owner of a parcel of property in Smith County, Mississippi. The road in question, Smith County Road 12, runs along the northern boundary of his property. In 2003, Smith County made additional improvements to this road, which included replacing a broken drainage culvert, building up the roadbed, and laying asphalt. Hawkins informed a supervisor that he knew how to “repossess” his property. A short time later, in order to “repossess” his property, Hawkins placed twelve to fourteen metal sign posts near the middle of the road each connected with metal wire. Atop each of the posts was a sign that stated “POSTED-No Trespassing.” Not long after the posts were placed in the road, a traveler on Smith County Road 12 hit at least one sign post while driving and notified his local supervisor about the incident.

¶ 3. This incident prompted Smith County to file an application for a preliminary and permanent injunction against Hawkins for interfering with travel on the road. After a hearing on the temporary injunction on March 12, 2004, the trial court found that Hawkins had closed drainage culverts, placed metal fence posts in the middle of the road, and stopped travelers going up and down the road to tell them not to trespass on the southern side of the road. The trial court found this conduct was a danger to the traveling public and issued the temporary injunction.

¶ 4. The trial court held a hearing on the application for a permanent injunction on March 19, 2004. Based on the evidence presented, the trial court found, among other things, that the road had been used by the traveling public for at least twenty-five years prior to the filing of this application. Without giving a specific reason, the trial court held that Smith County Road 12 was a public road. The trial court granted the permanent injunction and ordered that Hawkins should cease and desist “from interfering with, threatening, or endangering the traveling public on and along” Smith County Road 12. Aggrieved, Hawkins now appeals.

STANDARD OF REVIEW

¶ 5. The circuit court judge sat without a jury and we afford him the same standard of review as that of a chancellor. Chantey Music Publ., Inc. v. Malaco, Inc., 915 So.2d 1052, 1055(¶ 10) (Miss.2005). Therefore, we will not disturb the trial judge’s findings unless they are “manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. (citing Hill v. SE. Floor Covering Co., 596 So.2d 874, 877 (Miss.1992)).

ANALYSIS

¶ 6. Hawkins argues that the injunction was erroneously ordered because the road in question was not a public road or the width of the road after the improvements were made exceeded the county’s rights. In the event that the road is a private road, Hawkins argues that he would be allowed to prevent the public from coming onto the portion of the road that lays on his property.

I. Whether Smith County Road 12 is a public road.

¶ 7. The trial court’s order did not state when or how the road became a public road. Instead, the judge included in his findings that the road was public and had been in use for at least twenty-five years prior to the filing of the application for an injunction. It is also clear that the land on which the road is situated (at least half of the road) is in fact land that is owned by Hawkins. Therefore, this Court will examine whether the road ever became public through one of the available methods.

¶ 8. A private road may become a public road by three methods, “by prescription or dedication, as well as by being laid out and established in accordance with statutory provisions.” Coleman v. Shipp, 223 Miss. 516, 530, 78 So.2d 778, 784 (1955). The method by which a road becomes public is immaterial. Armstrong v. Itawamba County, 195 Miss. 802, 817, 16 So.2d 752, 757 (1944) (quoting Rylee v. State, 106 Miss. 123, 125, 68 So. 342 (1913)). Therefore, only one method need be examined, and that is the method of dedication.

¶ 9. There are two types of dedication, express and implied. The evidence does not support a conclusion that Hawkins made an express dedication of the road for public use. While Hawkins did state that he would let the county have eight to ten feet of his property, it was merely contingent on a similar grant from his neighbors. On the other hand, through long-standing permission to all the public to travel along this road there could be an implied dedication. Armstrong, 195 Miss, at 816, 16 So.2d at 757. It can arise from:

those acts which unequivocally manifest an intention that the community shall have and enjoy a highway on his private property. When the public accepts his offer there has been consummated that which is of equal import with a contract or grant, and there has been accomplished what is expressed by the term “dedication.”

Id. (quoting Kinnare v. Gregory, 55 Miss. 612, 620-21 (1878)).

¶ 10. There was evidence to support a finding of an implied dedication. According to Hawkins’s own testimony, the road had been used by the public for over fifty years. There was no evidence to suggest that any person was ever precluded from using the road. In fact, the testimony revealed that the road was built so that school buses could pick up children in the 1950’s. Over the course of fifty years, the intention of the road was to allow the public easy access along the road. The only time that Hawkins revealed any contrary intentions was when he placed the no trespassing signs on the road. At that point, it was too late to remove the implied dedication. By that time, the county had already shown its acceptance when it replaced a broken culvert, hauled in dirt to build the road up, and paved the road.

¶ 11. In addition, the record supports the trial court’s finding that the road was maintained by Smith County more than ten years before it was adopted in the official county road map on June 30, 2000. As the supreme court stated, “[w]hen the public accepts his offer there has been consummated that which is of equal import to a contract or grant, there has been accomplished what is expressed by the term ‘dedication.’ ” Armstrong, 195 Miss. at 816, 16 So.2d at 757 (citing Kinnare, 55 Miss. at 621).

¶ 12. Based on the appropriate standard of review, we find no error in the trial court’s finding that Smith County Road 12 was a public road, and Hawkins was precluded by statute from interfering with or blocking travelers along the road. Miss. Code Ann. § 65-7-7 (Rev.2005).

II. Whether the County exceeded the boundaries of the public road

¶ 13. Hawkins also argued that the County, while paving the road, expanded the road beyond the old roadbed, which was a public road. Hawkins is correct that the road cannot be enlarged past its established width. Campbell v. Covington County, 161 Miss. 374, 137 So. 111, 112 (1931). The road was widened in some places, but that was only on the north side of the road. Hawkins’s property lies only to the south of the road. Therefore, any expansion would not have taken away any of Hawkins’s property. Besides replacing a broken culvert, the only changes to the road were the laying of dirt and asphalt. These were acceptable improvements to the road. Smith County was merely making the road a usable highway as allowed by our case law. Id. Without interfering with Hawkins’s property by expanding the road to the south, Smith County was within its authority to make the improvements to Smith County Road 12.

CONCLUSION

¶ 14. The trial court correctly found that Smith County Road 12 was a public road and committed no error in granting the permanent injunction preventing Hawkins from interfering with the public travelers using the road. Therefore, the decision of the trial court is affirmed.

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

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


text:
    Burnell DAVIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00079-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.

      Burnell Davis, appellant, pro se.
    Office of the Attorney General by Jacob Ray, for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Burnell Davis, appearing pro se, appeals the denial of his motion for post-conviction relief by the Circuit Court of Copiah County. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. Davis was arrested on charges of statutory rape in October of 2001. His preliminary hearing was on May of 2002, when Davis was appointed two defense attorneys. Davis claims that the night he was arrested, law enforcement officers obtained a DNA sample from him without a court order. Davis was indicted by a grand jury for statutory rape pursuant to Mississippi Code Annotated section 97-3-65 (Rev.2000) on June 7, 2002. Entering a plea of guilty on August 1, 2003, Davis was sentenced to five years in the custody of the Mississippi Department of Corrections (“MDOC”) with nineteen months to serve and the remainder of the sentence suspended, with three years of post-release supervision. This suspended sentence was conditioned on certain demands by the court, including that Davis “avoid injurious or vicious habits” and “abstain from the use of alcohol or illegal drugs.” Additionally, in his petition to enter a plea of guilty, Davis acknowledged he waived all of his constitutionally guaranteed rights.

¶ 3. On March 1, 2004, Davis entered a plea of guilty to charges of “statutory rape-revocation of probation” in the Copi-ah County Circuit Court. Davis, on post-release supervision, had violated the terms and conditions of his sentence because, as the court order stated, he failed to avoid the injurious behavior of cocaine usage and failed to pay supervision fees as ordered. The circuit court revoked Davis’s post-release supervision and sentenced him to serve three years and five months in the custody of the MDOC.

¶ 4. In May of 2005, Davis filed a complaint in the United States District Court for the Southern District of Mississippi based on 42 U.S.C. § 1983. The federal court dismissed Davis’s claim without prejudice, explaining that since Davis’s only actionable claims involved the calculation of his sentence, a section 1983 action was an improper vehicle for the relief Davis desired. Instead, the federal court stated the proper vehicle would be the filing of a federal habeas corpus action. However, the federal court explained to Davis that he must first exhaust all state remedies. Consequently, on July 20, 2005, Davis filed a motion for post-conviction collateral relief in the Circuit Court of Copiah County, which was denied. Aggrieved, Davis timely appeals to this Court, arguing that (1) his constitutional rights were violated because he was incarcerated 191 days without an initial appearance or preliminary hearing, and DNA evidence was unlawfully obtained; (2) his indictment was illegal; (3) the revocation of his probation and imposition of his suspended time were unlawful; and (4) he was denied a speedy trial. Also implied in Davis’s arguments is an ineffective assistance of counsel claim.

STANDARD OF REVIEW

¶ 5. This Court’s standard of review for the denial of a motion for post-conviction relief is well-established. We will not alter the findings of the trial court unless they are clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002) (citation omitted). Questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ISSUES AND ANALYSIS

1. Whether Davis waived his right to an initial appearance or preliminary hearing, whether his constitutional right to a speedy trial was violated, and whether DNA evidence was obtained unlawfully.

¶ 6. Davis actually argues two seemingly distinct issues here-the alleged delay in the proceedings and procurement of DNA evidence-but since they are legally related, we will address them together. We will also combine, for judicial economy, Davis’s fourth issue, which contends a violation of his constitutional right to a speedy trial, and which is related to his issue regarding delay in the proceedings.

¶ 7. Davis argues that 191 days passed from his arrest until he was afforded an initial appearance or a preliminary hearing, violating Mississippi law and his constitutional right to a speedy trial. Additionally, Davis claims law enforcement officers procured a DNA sample without a court order, in violation of Davis’s Sixth and Fourteenth Amendment rights. Davis cites Coleman v. State, 592 So.2d 517 (Miss.1991), for the proposition that an inexcusable delay in providing an initial appearance renders the taking of DNA samples and a subsequent confession inadmissible. Id. at 521.

¶ 8. Our case, however, is distinguishable from Coleman in that here Davis pled guilty to the charges of statutory rape, instead of confessing during an interrogation as was the case in Coleman. The Mississippi Supreme Court has “recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Rowe v. State, 735 So.2d 399, 400(¶4) (Miss.1999) (citing Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). The court explains that “[w]e have generally included in this class ‘those [rights] secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890.’ ” Id. (quoting Sanders v. State, 440 So.2d 278, 283 (Miss.1983)). Further, Davis signed a petition to enter a plea of guilty, which was not a part of the record originally but was obtained by this Court and examined. This document acknowledges that Davis agreed to waive all of his constitutional rights. This waiver would include Davis’s right to a speedy trial, as well as any defects in obtaining a DNA sample. Accordingly, this issue is without merit.

2. Whether Davis’s indictment was illegal.

¶ 9. Next, Davis argues that his indictment was illegally obtained for the following reasons: neither the victim nor any family member testified before the grand jury, the indictment was not a true bill because the grand jury never met, and there was a jurisdictional defect in the indictment.

¶ 10. Regarding Davis’s first contention, there is no legal requirement that a grand jury call witnesses favorable to the accused. In fact, the grand jury has broad latitude in its investigative powers, and the court will usually not interfere with the grand jury absent a strong reason to do so. Ex Parte: Jones Co. Grand Jury: State v. Pacific, 705 So.2d 1308, 1315(¶ 32) (Miss.1997) (citing 38A C.J.S. §§ 76, 78, 131).

¶ 11. Second, Davis claims that the indictment is not a “true bill.” Yet, “it is the responsibility of any person challenging the validity of an official, or official act, to show the invalidity by clear proof.” Gray v. State, 819 So.2d 542, 547(¶24) (Miss.Ct.App.2001) (quoting Harris v. Harrison Co. Bd. of Supervisors, 366 So.2d 651, 656 (Miss.1979)). Any evidence must be balanced by the “strong presumption that the official acts of [public] officers are valid.” Id. (quoting Raper v. State, 317 So.2d 709, 712 (Miss.1975)). Davis fails to present any evidence in support of his contention.

¶ 12. Davis cites Gray regarding his assertion that the grand jury never met and thus his indictment was illegal. In Gray, which is an appeal from a post-conviction relief petition, the defendant claimed his indictment was “manufactured”; however, the defendant was only able to provide “indirect and incompetent evidence.” Gray, 819 So.2d at 547(¶ 27). Yet, Gray was reversed and remanded not because the indictment was probably fabricated, but in order to move beyond a successive motion bar. Id. Davis has not provided any documentation to support his contention that the grand jury never met, nor does this Court have any documents in the record in support of this contention.

¶ 13. In May of 2006, in a possible attempt to provide evidence in support of his allegation that the indictment was manufactured, Davis filed an affidavit to this Court, including a copy of the indictment, again claiming it was not a true bill. Davis claims the signature of the district attorney, Alexander Martin, does not say “Alexander Martin.” This Court was already provided, as a part of the appellate record, a copy of the indictment, filed June 7, 2002. Upon inspection, we fail to see a defect regarding the district attorney’s signature. As for a “jurisdictional defect” in the indictment, Davis does not elaborate, and we do not find one. Accordingly, we find the indictment valid. This issue is without merit.

3. Whether the revocation of Davis’s probation and imposition of suspended time was unlawful.

¶ 14. Davis contends that the revocation of his probation, and imposition of his suspended time were unlawful, which rendered his suspended sentence unconstitutional and made the imposition of a five-year sentence illegal. The trial court originally sentenced Davis to five years in the custody of the MDOC, with nineteen months to serve and the remainder of the sentence suspended. Davis was placed on three years of post-release supervision. The suspended sentence was conditioned on Davis’s abstaining from drug usage, among other conditions. Davis apparently failed to abstain from cocaine usage and failed to pay supervision fees. On March 1, 2004, in the Circuit Court of Copiah County, Davis entered a plea of guilty to the charge of “Statutory Rape-Revocation of Probation.” The court thereby revoked Davis’s probation and sentenced him to serve three years and five months in the custody of the MDOC.

¶ 15. Davis cites Goss v. State, 721 So.2d 144, 145(¶ 7) (Miss.1998), and Robinson v. State, 585 So.2d 757, 759 (Miss.1991) for the assertion that a court cannot partially suspend a sentence for a previously convicted felon. According to Davis’s guilty plea petition, Davis had been convicted of the prior felony of sale of cocaine. In his brief, Davis states this was in March of 1994, and he was sentenced to serve ten years.

¶ 16. However, the Mississippi Supreme Court overruled Goss with Carter v. State, 754 So.2d 1207 (Miss.2000) because of the similar problem which would be created here: if Goss’s holding were followed, it would “restrict unnecessarily the trial courts’ ability to impose a split-sentence upon a previously convicted felon.” Carter, 754 So.2d at 1210(¶ 8). In Goss, Mississippi Code Annotated section 47-7-33 (Supp.1993) was interpreted to mean that where a defendant has been convicted of a prior felony, it is improper for the trial court to sentence the defendant to probation or a suspended sentence. Goss, 721 So.2d at 146 (¶ 12). However, Carter, in overruling Goss, holds that Mississippi Code Annotated section 47-7-34 (Supp. 1999) creates the post-release supervision program for those already convicted of a felony, and this “program creates a split-sentencing option for repeat offenders. The program is different from § 47-7-33 (1993) probation in that it does not allow the combined terms [of incarceration and post-release supervision] to exceed the statutory maximum period 'of incarceration. Post-release supervision is a legislative creation separate and distinct from probation.” Carter, 754 So.2d at 1208(¶ 4). Further, Mississippi Code Annotated section 47-7-37 (Supp.2006) states that at any time during the probation period the court may arrest the probationer for violating the conditions of his probation or suspension of sentence. If the probationer is arrested, the judge shall have the authority “to continue or revoke all or any part of probation or ... the suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been no probation.” Miss.Code Ann. § 47-7-37 (Supp.2006) (emphasis added.)

¶ 17. In our case, Davis had a suspended sentence with three years of post-release supervision, which is proper for a defendant with a prior felony conviction under section 47-7-34. Once he violated the terms of his suspended sentence, the post-release supervision was revoked, which is proper under section 47-7-37. The judge then ordered Davis to serve three years and five months in the custody of MDOC. This sentence equates to the remainder of his five-year sentence which was suspended. Davis was given credit for his nineteen months of time served in the Copiah County jail. Therefore, the imposition of a three year and five month sentence by the trial court was proper. We find this issue to be without merit.

4. Whether Davis’s counsel were ineffective.

¶ 18. Davis was appointed two lawyers. Davis makes an implied argument that his defense counsel were ineffective because one of his lawyers coerced him to plead guilty. The test for ineffective assistance of counsel is articulated in Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant bears the burden of establishing this claim, and must prove (1) that defense counsel’s performance was deficient when measured by the standard of reasonable professional competence, and (2) the defendant was prejudiced by counsel’s failure to meet this standard. Pleas v. State, 766 So.2d 41, 42(¶3) (Miss.Ct. App.2000) (citing Wiley v. State, 750 So.2d 1193, 1198(¶ 11) (Miss.1999)). If a defendant pleads guilty, the key issue is if counsel’s performance had been effective, there was a reasonable probability the defendant would not have pled guilty but would have gone to trial. Id. at 43(¶ 7) (citing Bell v. State, 751 So.2d 1035, 1038(¶ 14) (Miss.1999)). The record before us is void of any evidence that the performance of either of Davis’s attorneys was deficient. Davis signed his plea petition on August 1, 2003, in which he acknowledges his satisfaction with his counsel, and he was subsequently released from incarceration. There is no evidence in the record of involuntariness or ignorance on the part of Davis in signing the plea agreement. Therefore, this issue is without merit.

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

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

      . Davis claims he was incarcerated from the time of his arrest on October 26, 2001, until he pled guilty on August 1, 2003, after which apparently he began post-release supervision pursuant to the sentencing order, having received credit for serving nineteen months in the Copiah County jail.


author: CARLTON, J.,

text:
    Milton Lee MARTIN a/k/a Iceburg, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-KP-00919-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.

      Milton Lee Martin, pro se.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before LEE, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. This is an appeal challenging the jurisdiction of a trial court, the validity of an indictment, and legality of a sentence as a result of a guilty plea. Finding that this Court is without jurisdiction to hear all but one claim before us, we affirm the conviction and sentence, and dismiss without prejudice the other claims in this appeal.

FACTS

¶ 2. On February 7, 2006, Milton Lee Martin was indicted by a Lee County grand jury as a habitual offender for the crime of burglary of a dwelling and petit larceny. Miss.Code Ann. § 99-19-81 (Rev.2000) (mandating habitual criminals be sentenced to the maximum term of imprisonment); § 97-17-23 (Rev.2006) (criminalizing burglary of a dwelling); § 97-17-43 (criminalizing larceny of property under $500 in value). On February 16, 2006, Martin filed a pro se “Memorandum of Law For Petition For Writ of Habeas Corpus.”

¶ 3. On May 26, 2006, while Martin’s habeas corpus pleading was still pending, Martin withdrew his plea of not guilty and entered a guilty plea. In exchange for Martin’s guilty plea, the State retired the habitual portion of Martin’s indictment and recommended a sentence of twenty-five years imprisonment. The benefit to Martin is that he would not be required to serve each day of a statutorily mandated maximum sentence under Section 99-19-81.

¶4. On June 15, 2006, a three justice panel of the Mississippi Supreme Court, aware that Martin had entered a guilty plea, entered an order directing the Lee County Circuit Court to treat Martin’s ha-beas corpus pleading as a notice of appeal. The cause was remanded to the circuit court to determine if Martin should be permitted to proceed in forma pauperis and have appellate counsel appointed to represent him. On June 19, 2006, the circuit court granted Martin leave to appeal informa pauperis, but held that Martin was not entitled to appointed appellate counsel. His appeal has been assigned to this Court.

DISCUSSION

¶ 5. On our own initiative, we address this Court’s jurisdiction to hear the present direct appeal. Martin’s conviction was a result of a guilty plea, not a jury trial. Convictions as a result of a guilty plea are statutorily prohibited from being directly appealed to an appellate court. Miss.Code Ann. § 99-35-101 (Rev.2000). Martin must seek relief through the Mississippi Uniform Post-Conviction Collateral Relief Act. Miss.Code Ann. §§ 99-39-1 to -29; Berry v. State, 722 So.2d 706, 707(¶ 5) (Miss.1998). Notwithstanding this limitation, certain issues may properly be brought before this Court. Id. at 707(¶ 5) (citing Burns v. State, 344 So.2d 1189 (Miss.1977) (holding that issues such as a habeas corpus appeal based on the issue of sentencing may be properly heard.)); Trotter v. State, 554 So.2d 313 (Miss.1989) (appellate jurisdiction valid in matters involving a direct appeal from a sentence). This Court is without jurisdiction to hear the claims raised by Martin other than the legality of his sentence. Johnson v. State, 925 So.2d 86, 88 n. 1 (Miss.2006); Bennett v. State, 865 So.2d 1158, 1169(¶2) (Miss.2004).

¶ 6. Martin was sentenced to twenty-five years imprisonment for the crime of burglary of a dwelling. That crime carries a maximum sentence of twenty-five years. Miss.Code Ann. § 97-17-23. A trial court has complete discretion to sentence a convicted defendant. Isom v. State, 928 So.2d 840, 850(¶41) (Miss.2006) (citations omitted). A sentence that does not exceed the statutory maximum sentence allowed is not subject to appellate review and will not be disturbed on appeal. Id. The record reflects that Martin was well aware of the sentence the trial court would impose upon him as a result of his guilty plea. The sentence Martin received does not exceed the statutory maximum sentence allowed and is therefore legal.

¶ 7. We dismiss the remaining arguments in Martin’s appeal without prejudice for lack of jurisdiction under Section 99-35-101.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY A FINE OF $1,000 AND $300 IN RESTITUTION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.

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


text:
    JESCO, INC. and Zurich American Insurance Company, Appellants v. Douglas CAIN, Appellee.
    No. 2006-WC-00528-COA.
    Court of Appeals of Mississippi.
    April 24, 2007.

      Thomas A. Webb, Jackson, attorney for appellants.
    David 0. Butts, Tupelo, attorney for ap-pellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Douglas Cain filed a workers’ compensation claim against his employer Jes-co, Inc., and its insurance carrier, Zurich American Insurance Company, for injuries sustained when he was hit by a car. On the bifurcated issue of compensability, the Workers’ Compensation Commission ruled in Cain’s favor. The Lee County Circuit Court affirmed the Commission’s decision and remanded the case to determine Cain’s benefits. Jesco appeals and argues that: (1) Cain did not receive his injuries in the course and scope of his employment, and (2) no exceptions to the “going and coming” rule apply. We find no error and affirm. We remand the case to the Commission for a determination of benefits.

FACTS

¶ 2. Cain was an electrician employed by Jesco. Jesco was the electrical contractor on a construction project for North Mississippi Medical Center in Tupelo. The project consisted of renovations to the hospital’s critical care unit on the second story on the south side of the building.

¶ 3. The hospital maintained an employee parking lot to the south, across the street on Garfield Street. Because the hospital wanted to keep its patient and staff parking available, Jesco instructed its employees to park in the hospital’s employee parking lot. Jesco’s employees were subject to disciplinary action if they did not do so. Jesco’s employees were required to park in this lot, walk across the street to the hospital, and walk up a hill to a tool trailer to report to work every morning. Jesco’s work hours were from 6:00 a.m. to 4:30 p.m.

¶ 4. On February 21, 2003, at about 5:45 a.m., Cain arrived and parked in the employee parking lot. He began to walk across Garfield Street to go to work. It was dark outside, and there were no lights or traffic control devices. Cain was struck by a vehicle driven by Michael McGaha. Both Cain and McGaha denied seeing each other. As a result of the accident, both of Cain’s arms and legs were broken, his right elbow was fractured, and his right shoulder was dislocated.

¶ 5. Cain filed a petition to controvert before the Commission. The parties agreed to bifurcate the issues of compens-ability and award. Because the facts were not in dispute, the parties forwarded stipulated facts, the Motor Vehicle Accident Report, and depositions to the administrative judge. He found that Cain’s injury fell within four of the enumerated exceptions to the “going and coming” rule. In particular, the administrative judge found that the unlit parking lot and street in the early morning hours posed a special hazard to Cain which did not exist for the general public. On review, the Commission agreed with the administrative judge. After the circuit court affirmed the Commission, Jesco’s appeal has been deflected to this Court for review.

STANDARD OF REVIEW

¶ 6. An appellate court must defer to an administrative agency’s findings of fact if there is even a quantum of credible evidence which supports the agency’s decision. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224 (Miss.1997). “This highly deferential standard of review essentially means that this Court and the circuit courts will not overturn a Commission decision unless said decision was arbitrary and capricious.” Id. at 1225; Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Questions of law will be reviewed de novo. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1125 (Miss.1992).

ANALYSIS

I. Did Cain’s injuries arise within the course and scope of his employment?

II. Does an exception to the “going and coming” rule apply?

¶ 7. Under both of these issues, Jesco argues whether the “going and coming” rule bars compensation. Therefore, we will address the first two issues together.

¶ 8. Jesco argues that Cain’s injury is not job related since he had not yet clocked-in at work that morning. Cain asserts that there was substantial credible evidence for the Commission to conclude that four of the exceptions to the “going and coming” rule applied. Specifically, (1) he was injured by some hazard inherent in the route to work, (2) Jesco furnished this hazardous route, (3) the injury resulted from a hazardous parking lot furnished by Jesco, and (4) the place of injury, although not owned by Jesco, was in such close proximity to the work premises as to be considered part of such premises.

¶ 9. In workers’ compensation cases, the general rule is that “hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compensable.” Miller Transporters, Inc. v. Seay’s Dependents, 350 So.2d 689, 691 (Miss.1977). This is known as the “going and coming” rule. Id. As with any rule, however, there are exceptions. Id. Namely, these are:

(1) where the employer furnishes the means of transportation, or remunerates the employee; or (2) where the employee performs some duty in connection with his employment at home; or (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or (4) where the employer furnishes a hazardous route; or (5) where the injury results from a hazardous parking lot furnished by the employer; or (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises; or (7) when the employee is on a special mission or errand for his employer, or where the employee is accommodating his employer in an emergency situation.

Duke ex rel. Duke v. Parker Hannifin Corp., 925 So.2d 893, 896 — 97(¶ 12) (citing Miller Transporters, 350 So.2d at 691 and Wallace v. Copiah County Lumber Co., 223 Miss. 90, 98-99, 77 So.2d 316, 317-18 (1955)). The employee has the burden of proving whether one of these exceptions applies. Ingalls Shipbldg. Div., Litton Sys., Inc. v. Dependents of Sloane, 480 So.2d 1117, 1118-19 (Miss.1985). Doubtful cases must be resolved in favor of compensation in order to fulfill the beneficent purposes of the Workers’ Compensation Act. Duke, 925 So.2d at 897-98(¶ 15).

A. Special hazards exception

¶ 10. Our supreme court examined this issue in a similar fact situation in Dependents of Sloane. Floye Sloane was killed when, crossing the street after work, she was hit by an automobile. Dependents of Sloane, 480 So.2d at 1118. At the time, she was employed with Ingalls as a porter on the night shift, working from 9:00 p.m. to 5:30 a.m. Id. at 1117-18. She worked in the Employment Office Building on the west side of Litton access road. Id. at 1118. The road was maintained by the State of Mississippi and was the sole access road to Ingalls. Id. It consisted of six lanes. Id. Between 5:30 and 7:00 a.m., thousands of Ingalls employees would enter the road from Highway 90 to the north to arrive at work. Id.

¶ 11. Fellow employee Betty Tanner gave Sloane a ride to work each day. Tanner worked in another building at the shipyard. Id. After work, Tanner would drive north along Litton road and pull into a U-turn area in front of the Employment Office Building. Id. Because of the heavy traffic flowing southbound, it was impractical for her to make a left turn into the Employment Office parking lot. Id. Instead, Sloane would cross three lanes of traffic to reach Tanner’s vehicle. Id. On the last such occasion, Sloane was struck by a southbound vehicle and killed. Id. The court relied on Stepney v. Ingalls Shipbuilding Division, Litton Systems, Inc., 416 So.2d 963 (Miss.1982) and applied the special hazards exception to the “going and coming” rule. Dependents of Sloane, 480 So.2d at 1119. In particular, it found that the heavy southbound traffic of Litton road • was an inherent danger along the route necessarily used by Sloane to and from work. Id. It further found that no practical alternate routes were available to her. Id.

¶ 12. As the Stepney court explained, the special hazards exception applies when there is “(1) the presence of a special hazard at the particular off-premises point, and (2) the close association of the access route with the premises, so far as going and coming are concerned.” Stepney, 416 So.2d at 964. Importantly, the court noted:

[I]t is not the proximity, or reasonable distance, or even the identifying of surrounding areas with the premises: it is simply that, when a court has satisfied itself that there is a distinct “arising out of’ causal connection between the conditions under which the claimant must approach and leave the premises and the occurrence of the injury, it may hold that the course of employment extends as far as those conditions extend.

Id. at 965 (quoting 1 Larson, Workmen’s Compensation Law, § 15.15 (1978)). Step-ney involved an accident at the same intersection on Litton road as the Dependents of Sloane case. Stepney, 416 So.2d at 963. Stepney was returning to work from lunch, traveling southbound on Litton road. Id. Another vehicle pulled out in front of him. Id. at 964. In applying the special hazard exception, the court found:

(1) The six-lane road or street was the only access and exit to the Ingalls West Bank shipyard and the situs of claimant’s employment.
(2) Although the street was either maintained or owned by the county or state, it was used principally by employees of Ingalls and those persons who had business with Ingalls.
(3) During changes of shifts and lunch breaks, thousands of Ingalls employees left and entered the plant by that sole access route, the six-lane street.
(4) The premises on each side of the access road were owned and used by Ingalls. In addition to a regulation red stop sign at the point where the collision occurred, Ingalls had erected another sign [warning of the dangerous intersection],
(5) Ingalls knew and recognized that the intersection of the access road and the road leading from the employment office constituted a hazard and the placement of the aforementioned sign at that point is an admission thereof.
(6) The appellant was exposed to a greater hazard than the general public for the reason that he worked regularly every week and was required to cross the dangerous intersection on his way to and from work each day.

Id. at 966. Therefore, the court reversed and rendered the Commission’s denial of compensation. Id. at 967.

¶ 13. Many of our sister jurisdictions have likewise applied the special hazard exception to compensate pedestrian employees who were injured while crossing the street between the employee parking lot and the work site. For example, the Kansas Supreme Court held:

where the employee uses a company-owned parking lot on one side of a public street that is a heavily traveled major city artery and must walk across that street to reach the company’s plant for work, and where the general public uses such route only in dealing with the employer, we hold that such employee is using a route that involves a special risk or hazard.

Chapman v. Beech Aircraft Corp., 258 Kan. 653, 907 P.2d 828, 835 (1995). In a similar case, the Alaska Supreme Court remanded to determine if special hazardous conditions existed at point in which the employee crossed the street from parking lot to the work site. Sokolowski v. Best W. Golden Lion Hotel, 813 P.2d 286, 294-95 (Alaska 1991). The parking lot was not owned by the employer, but it had obtained permission for its employees to park there. Id. Likewise, the Oklahoma Supreme Court ruled, “when an employee must of necessity cross a public street in order to reach his car in the employer-provided parking lot, traffic on that street constitutes an employer-created hazard and injury suffered while crossing it in going to or coming from lunch is deemed to arise out of and in the course of employment.” Fudge v. Univ. of Okla., 673 P.2d 149, 150 (Okla.1983).

¶ 14. Applying Stepney and Dependents of Sloane to this case, we first examine whether there was the presence of a special hazard at the off-premises point where Cain was injured. The Commission found that “the route the claimant necessarily had to take from the parking lot to the employer’s premises was inherently hazardous at the time of day the injury occurred, and the claimant was exposed to that hazard on a daily basis.” There is substantial credible evidence to support this finding.

¶ 15. The facts are undisputed. Cain was hit by McGaha’s vehicle while crossing the street between the Garfield parking lot and work. The parking lot was right across the street from Jesco’s work site on the hospital premises. Particularly, the work site included a trailer located on the south side (Garfield Street side) of the hospital and the critical care unit, on the south side second floor of the hospital. Employees had to report to the tool trailer to clock in. After parking in the employee parking lot, employees crossed Garfield Street on foot. Jesco’s shifts started at 6:00 a.m. The accident occurred at 5:45 a.m. in February, and it was dark outside. There were no lights in the parking lot nor on the street. There were no traffic signals nor crosswalks. Both McGaha and Cain testified that they did not see one another. Indeed, there was substantial credible evidence to support the Commission’s finding that a special hazard existed at the off-premises accident site.

¶ 16. Next, we examine whether there is a “close association of the access route with the premises, so far as going and coming are concerned.” The Commission decided this issue in the affirmative, because this was the route that Jesco’s employees had to take in order to go to the work site. The route was the common and direct route between the parking lot and the hospital. Moreover, Jesco required its employees to park in this lot, otherwise it would take disciplinary action.

¶ 17. Although Cain’s supervisor Jeff Mize testified there was another available parking lot, this was half a mile away, on the east side of the hospital. The existence of an impractical alternate route will not bar recovery. Dependents of Sloane, 480 So.2d at 1119. In fact, Mize admitted that the east parking lot served as a supplemental lot, in case the Garfield lot was full. Thus, there “is a distinct ‘arising out of causal connection between the conditions under which [Cain had to] approach ... the premises and the occurrence of the injury.” Stepney, 416 So.2d at 965.

¶ 18. There was substantial credible evidence to support the Commission’s finding that Cain’s accident satisfied the third exception to' the “going and coming” rule.

B. Premises exception

¶ 19. The Commission also found that Cain satisfied the sixth exception to the “going and coming” rule — “where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises.”

¶20. Indeed, some jurisdictions apply the premises exception to compensate pedestrian employees between the off-site parking lot and the work site. See, e.g., Collie Concessions, Inc., v. Bruce, 272 Ga. App. 578, 612 S.E.2d 900, 903 (2005); P.B. Bell & Assocs. v. Indus. Comm’n of Ariz., 142 Ariz. 501, 690 P.2d 802, 810 (Ariz.Ct.App.1984). The rationale in these cases is that the employee is traveling from one of the employer’s premises (the parking lot) to another of the employer’s premises (the work site); therefore, the travel “arises out of’ employment.

¶ 21. Mississippi holds that employee parking lots are part of the work site premises. Green v. Glen Oaks Nursing Ctr., 722 So.2d 147, 150(¶ 12) (Miss.Ct.App.1998). This is true whether the employer owns the parking lot or has provided for its use by a license. Adams v. Lemuria, Inc., 738 So.2d 295, 298(¶ 11) (Miss.Ct.App.1999).

¶ 22. The place of injury was Garfield Street, which is not owned by Jesco. Although Jesco did not own the employee parking lot, Jesco received permission and authority from the hospital to use this parking lot for Jesco’s employees as well. Thus, the parking lot became part of Jes-co’s work premises. Id. It is undisputed that Garfield Street lies between this parking lot and Jesco’s tool trailer. This area of the street thus became “in such close proximity to the premises as to be in effect, a part of such premises.” Because Cain was using Garfield Street en route between two noncontiguous work site premises, his injury arose out of his employment.

¶ 23. Nevertheless, Jesco points to Mooneyhan v. Boyd Tunica, Inc., 850 So.2d 119 (Miss.Ct.App.2002) as support for its position that Cain did not satisfy the special hazards exception. Even if this were true, Cain did satisfy an alternate exception to the “going and coming” rule.

¶ 24. Mooneyhan is distinguishable. While leaving work at Sam’s Town Casino, Betty Mooneyhan was involved in a motor vehicle accident on Highway 304 in Robin-sonville after she pulled out of the parking lot. Id. at 120(¶ 3). She failed to prove the existence of a special inherent hazard at the off-premises point. Id. at 122(¶ 11). On the other hand, there is substantial credible evidence to support the Commission’s finding that Cain did prove the existence of an inherent hazard' — -a street crossing at dark, with no lights, traffic signals nor crosswalk. We find that this issue has no merit.

CONCLUSION

¶25. We affirm the Commission’s ruling of compensability and remand the case to the Commission for a determination of benefits.

¶ 26. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS AFFIRMED, AND THE CASE IS REMANDED TO THE WORKERS’ COMPENSATION COMMISSION FOR A DETERMINATION OF BENEFITS. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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