author: BARNES, J.,

text:
    Jessie James McGEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-02139-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.
    Jessie James McGee, Appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., CHANDLER and BARNES, JJ.
   BARNES, J.,

for the Court.

¶ 1. Jessie James McGee pleaded guilty in the Circuit Court of Copiah County to the sale of crack cocaine and was sentenced to ten years in the custody of the Mississippi Department of Corrections. Nearly a year later, McGee filed a motion to reconsider his sentence, which was summarily denied. McGee raises three issues in his pro se appeal that we combine as one: whether the trial court’s judgment to deny McGee’s motion for reconsideration of his sentence because he was a first-time offender amounted to an abuse of discretion. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2. A Copiah County grand jury returned an indictment against McGee on February 2, 2005, for the sale of crack cocaine to Ronald Rhodes in violation of Mississippi Code Annotated section 41-29-139 (Rev.2001). Because the sale took place within 1,500 feet of the Jerusalem Missionary Baptist Church, McGee was subjected to enhanced punishment under Mississippi Code Annotated section 41-29-142 (Rev.2001).

¶ 3. In exchange for dismissing one possession of crack cocaine charge and another sale of crack cocaine charge, McGee agreed to enter a plea of guilty to the sale of crack cocaine and filed a petition to do so on March 14, 2005. During the plea colloquy on April 4, 2005, McGee admitted to the court that he had been selling crack cocaine for “about three or four years” and that he knew the destructive effects of the drug because he used it himself and had a drug problem. The court accepted his plea of guilt and sentenced McGee to ten years in the custody of the Mississippi Department of Corrections. The court also ordered that he receive intense alcohol and drug treatment while incarcerated. The sentencing order was filed on April 4, 2005, during the March 2005 term of court. At the time of his sentencing, McGee was sixty-two years old and had no prior convictions. McGee took no appeal from his sentence.

¶ 4. On March 6, 2006, McGee filed a pro se motion for reconsideration of his sentence in the Copiah County Circuit Court, asking the trial court to suspend his sentence and place him on probation because he was a first-time offender. In the alternative, McGee claimed that the court should place him in a rehabilitation program as provided by Mississippi Code Annotated section 41-29-150 (Rev.2005).

¶ 5. On March 7, 2006, the trial court denied McGee’s motion for reconsideration of his sentence. The court noted that the motion was filed with the clerk on March 6, 2006, to reconsider the sentencing order of April 4, 2005. The trial court ruled that because the sentencing order was signed by the court on April 4, 2005, during the court’s March 2005 term of court, and because McGee had begun serving his sentence and the term of court during which the order was entered closed, the court was without jurisdiction to hear the motion pursuant to Mississippi Code Annotated section 47-7-33 (Rev.2004). McGee took no appeal from this ruling.

¶ 6. On November 16, 2006, McGee filed another pro se motion for resentencing, again asking the court to suspend his sentence because he was a first-time offender. On November 17, 2006, the court denied McGee’s motion, which raised the same arguments and cited the same authority as before. It is from this order that McGee now appeals.

¶ 7. We note that McGee never called his motion for resentencing a motion for post-conviction relief, and the trial court did not treat McGee’s filings as a motion for post-conviction relief. The first time that McGee designates his action as one for post-conviction relief is when he filed this appeal.

ANALYSIS

Whether the trial court abused its discretion in denying McGee’s motion for reconsideration of his sentence because he was a first-time offender.

¶ 8. Before addressing the issue which McGee raises on appeal, we must consider the State’s contention that this appeal should be dismissed as an attempt to appeal an unappealable order. The State says there are two primary ways a criminal defendant can challenge a trial court proceeding: (1) by a direct appeal from a conviction or (2) by proceeding under the Mississippi Uniform Post^Conviction Collateral Relief Act, Mississippi Code Annotated sections 99-39-1 to 99-39-29 (Rev. 2007). The State contends that an “attempt to appeal an unappealable order is a total departure from the orderly administration of justice and cannot and should not be approved.” Swift v. State, 952 So.2d 1039, 1040(¶ 4) (Miss.Ct.App.2007) (quoting Pipkin v. State, 292 So.2d 181, 182 (Miss.1974)). The State argues that McGee’s appeal is not properly before this Court because McGee was not directly appealing his conviction, nor was he proceeding under the PosU-Conviction Act in his filings in the trial court.

¶ 9. However, this Court does have jurisdiction to consider an appeal challenging the length of a sentence, even when a defendant enters a plea of guilty. Lett v. State, 965 So.2d 1066, 1070(¶ 7) (Miss.2007) (citing Johnson v. State, 925 So.2d 86, 88 n. 1 (Miss.2006)); Edge v. State, 945 So.2d 1004, 1006-07(¶ 12) (Miss. Ct.App.2007). An appeal from a sentence imposed pursuant to a plea of guilt is not the same as an appeal from the guilty plea itself. Edge, 945 So.2d at 1007(¶ 12) (citing Burns v. State, 344 So.2d 1189, 1190 (Miss.1977)). McGee’s appeal involves his motion for reconsideration of his sentence, not his conviction; therefore, we find that the State’s argument is misplaced.

¶ 10. Motions to reconsider a sentence are reviewed under an abuse of discretion standard. Acker v. State, 797 So.2d 966, 969(¶ 10) (citing Wallace v. State, 607 So.2d 1184, 1191 (Miss.1992)). Sentencing is generally a matter left to the sound discretion of the trial court, and the court’s decision will not be disturbed on appeal if the sentence is within statutory limits. Wade v. State, 802 So.2d 1023, 1030(¶ 36) (Miss.2001) (citing Hoops v. State, 681 So.2d 521, 537 (Miss.1996)).

¶ 11. To determine this appeal, we must review the trial court’s reason for denying reconsideration of McGee’s sentence. Rather than decide the merits of McGee’s petitions, the trial court determined that it had no jurisdiction because McGee’s sentencing was during a previous term of court which had ended and McGee had begun serving his sentence. The trial court cited to Mississippi Code Annotated section 47-7-33 (Rev.2004) and Denton v. Maples, 394 So.2d 895 (Miss.1981) in denying the motions.

¶ 12. The trial court used a two-part analysis in finding that the court had no jurisdiction. First, the court said that section 47-7-33 provides that after a conviction or a plea of guilty (except in certain stated cases), a circuit court has the power to suspend a sentence, and place the defendant on probation, “except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.” Miss.Code Ann. § 47-7-33(1) (Rev.2004) (emphasis added). In Denton the court applied section 47-7-33 and held that if the defendant fails to take an appeal and begins to serve his sentence, the time has passed for the trial court to suspend a sentence under section 47-7-33. Denton, 394 So.2d at 898-99. Second, the trial court said that it lacked jurisdiction because the term of court in which McGee was sentenced, the March 2005 term of the Copiah County Circuit Court, had ended, and McGee had begun serving his sentence. Generally, a circuit court does not have jurisdiction to alter or vacate a judgment once the term of court ends. Presley v. State, 792 So.2d 950, 954(¶ 18) (Miss. 2001). However, a court may rule on a motion that was pending at the end of the court term. Miss.Code Ann. § 11-1-16(1) (Rev.2002).

¶ 13. We find no error in the trial court’s denial of McGee’s motion for lack of jurisdiction. The March 2005 term of the Copiah County Circuit Court began on the first Monday of March, March 7, 2005, and ran for five weeks until April 8, 2005. McGee pleaded guilty on March 16, 2005, and was sentenced on April 4, 2005. On April 8, 2005, the term of court ended. It was not until nearly a year later, March 6, 2006, that McGee challenged his sentence when he filed his first motion for reconsideration of sentence. McGee does not qualify under the statutory exception, as his motion was not pending when the court term ended. Thus, we find that the trial court correctly dismissed McGee’s attempt to have the court reconsider his sentence.

¶ 14. McGee further argues that as a first-time offender he should be allowed to participate in a drug rehabilitation program under Mississippi Code Annotated section 41-29-150 (Rev.2005). We see no need to address this issue as the trial court’s sentencing order specifically provided that McGee was to “receive intense alcohol and drug treatment while incarcerated.”

¶ 15. Accordingly, we affirm the trial court’s denial of McGee’s motion to reconsider his sentence.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF COPIAH COUNTY DENYING DEFENDANT’S MOTION FOR RECONSIDERATION OF SENTENCE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.

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

      . State of Mississippi Judiciary Directory & Court Calendar (2005).


source: Caselaw Access Project

author: CHANDLER, J.,

license: Public Domain

text:
    Bhavna KUMAR, Appellant v. Arvind M. KUMAR, Appellee.
    No. 2006-CA-01140-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.

      Mark A. Chinn, Jackson, Lee Ann Self Turner, William Matthew Thompson, attorneys for appellant.
    Edward L. Pleasants, Columbus, Wilbur 0. Colom, attorneys for appellee.
    Before KING, C.J., CHANDLER, BARNES and ISHEE, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Chancery Court of Lowndes County entered an order denying Bhav-na Kumar a divorce from her husband, Arvind M. Kumar. Aggrieved by the chancellor’s order, Bhavna appeals. She asserts the following issues: (1) the chancellor’s denial of a divorce was manifestly wrong, clearly erroneous, and against the overwhelming weight of the evidence, (2) the chancellor’s denial of her motion for a new trial and/or to alter or amend judgment was manifestly wrong and clearly erroneous, and (3) the chancellor’s decision to allow Arvind to file an untimely answer was manifestly wrong and clearly erroneous.

¶ 2. Finding that the chancellor erred in denying a divorce based on the grounds of habitual cruel and inhuman treatment, we reverse.

FACTS

¶ 3. Arvind and Bhavna, who are of Indian descent, married on March 31, 1979, in the United Kingdom. The following year they moved to the United States. They eventually settled in West Point, Mississippi and became naturalized citizens. At the time of trial, the parties had a daughter who was twenty years old and a twenty-two-year-old son.

¶ 4. Bhavna filed for divorce from Ar-vind on July 30, 2004, in the Chancery Court of Lowndes County. She sought a divorce on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. At the time, the chancellor entered a temporary restraining order against Arvind and set a hearing for temporary relief on August 9, 2004. The hearing was continued twice, but it was never held. Eventually, Bhavna withdrew her request for temporary support when the parties attempted to reconcile in September 2004.

¶ 5. After Bhavna returned home, the parties lived together until August 12, 2005, at which time, Bhavna left the marital home because of another abusive incident. She then filed an application for entry of default citing Arvind’s failure to file an answer to the divorce complaint. In response, Arvind requested leave to file an answer to the original complaint, which the chancellor granted. Discovery was attempted, but after Arvind failed to comply with an order compelling discovery, the chancellor found that he had willfully disobeyed the court order and sanctioned him. The chancellor prohibited Arvind from calling any witnesses or admitting any documents at trial, thereby limiting him to cross-examination of Bhavna’s witnesses. Because Arvind also failed to answer Bhavna’s requests for admissions, the chancellor deemed them admitted.

¶ 6. For failing to comply with discovery, some of the facts the chancellor deemed admitted were as follows: (1) that Arvind committed adultery; (2) that Arvind physically abused, hit, punched, tried to strangle, used a belt to whip, and yelled at Bhavna; (3) that Arvind stayed away from home without notice or reason; (4) that he caused Bhavna to suffer mental abuse and to be in fear of her physical safety; (5) and that his actions caused the marriage to be unbearable for Bhavna.

¶ 7. At trial, Bhavna’s sister, Kusum “Kay” Patel, testified to corroborate Bhav-na’s marital problems. She told the court how Bhavna was never happy in the marriage, how Bhavna was in poor health because she could not sleep, and how Bhavna was always afraid that Arvind would hit her. Kay was aware of a number of specific instances of abuse. Bhavna told Kay that Arvind had hit her while she was pregnant with their son and that she had to go to the hospital in 1995 after Arvind hit her in the face. Kay also told the court that, because of Bhavna’s marital problems, Bhavna tried to commit suicide by overdosing on Tylenol, which resulted in a trip to the emergency room.

¶ 8. Besides the abuse, Kay also testified that Bhavna told her that Arvind had a girlfriend during the marriage. According to Kay, Bhavna did all the housework, including taking care of Arvind’s mother. She also helped to run the hotels that she and Arvind owned. Even though she knew about her sister’s problems with Arvind, Kay never encouraged her to leave him. She thought it would be best for their children if they stayed together.

¶ 9. Bhavna took the stand and recounted the problems she had and abuses she suffered throughout her marriage to Ar-vind. Problems surfaced almost immediately as Bhavna learned that Arvind had a girlfriend, even though he and Bhavna had recently gotten married. His adulterous nature also led to his and Bhavna’s contraction of a sexually transmitted disease some years later.

¶ IQ. As far as physical abuse, Bhavna claimed that Arvind would abuse her two or three times each year. She said the frequency of abuse had recently dropped to just once a year. Nevertheless, Bhavna told the court that Arvind once hit her in the face when she was pregnant with her son. Years later, Arvind again hit her in the face, which required that Bhavna go to the hospital because of the injuries to her jaw. Another time, after Arvind had been out at a casino all night without calling, he was arrested following an argument. During that argument he pinned Bhavna to the floor with his hands on her throat. The last instance she recounted was when Arvind hit her with a belt. It was following this incident that Bhavna left Arvind for the last time.

¶ 11. In addition to the physical abuse and the adultery, Bhavna testified that Arvind would continually subject her to verbal abuse, even threatening her life three times. She said that she was never happy in the marriage, and she was always in fear of abuse. Nevertheless, just as Bhavna’s sister never encouraged her to divorce Arvind, Bhavna told how her family also encouraged her to remain married, despite the abuse. Bhavna told the court that on two occasions she attempted to commit suicide to escape her marriage. She said she first tried to kill herself when she was living in Florida and later when she tried to overdose on Tylenol.

¶ 12. Bhavna did not call Arvind as a witness, and the court’s sanctions prevented Arvind from taking the stand himself or calling any witnesses. At the conclusion of the trial, the chancellor entered an order denying Bhavna’s request for a divorce based on cruel and inhuman treatment. He found that Bhavna failed to carry her burden of proving cruel and inhuman treatment by a preponderance of the evidence.

STANDARD OF REVIEW

¶ 13. The scope of review in a domestic relations case is limited by the substantial evidence/manifest error rule. Mizell v. Mizell, 708 So.2d 55, 59(¶ 12) (Miss.1998). We will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. at 59(1113). However, we will conduct a de novo review for questions of law. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶ 5) (Miss.2002). The chancellor’s determination of whether a spouse’s conduct rose to the level of cruel and unusual treatment is a determination of law. Potts v. Potts, 700 So.2d 321, 322(¶ 10) (Miss.1997); Reed v. Reed, 839 So.2d 565, 569(¶ 13) (Miss.Ct.App.2003). Such a finding is reversible if the chancellor employed an erroneous legal standard. Potts, 700 So.2d at 322(¶ 10).

ISSUES AND ANALYSIS

I. Whether it was error to deny Bhavna a divorce.

¶ 14. Bhavna first argues that it was against the weight of the evidence to deny her a divorce from Arvind based on cruel and inhuman treatment. Bhavna claims that the chancellor erred in weighing the evidence and in failing to consider her subjective apprehension of harm. Furthermore, she argues that the abuse was not condoned and that the chancellor punished her for not calling her children to testify. Based on the foregoing claims, Bhavna concludes that she met her burden and was entitled to a divorce from Arvind.

¶ 15. The causes for divorce are provided for by section 93-5-1 of the Mississippi Code Annotated (Rev.2004), which states that a divorce decree may be based on habitual cruel and inhuman treatment. Conduct that evinces habitual cruel and inhuman treatment must be such that it either (1) “endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief’ or (2) “is so unnatural and infamous” as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance. Mitchell v. Mitchell, 767 So.2d 1037, 1041(1114) (Miss.Ct.App.2000) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss.1993)). In making a determination, the chancellor must look to “(1) the conduct of the offending spouse and (2) the impact of the conduct upon the plaintiff.” Fisher v. Fisher, 771 So.2d 364, 367(¶ 10) (Miss.2000).

¶ 16. The cruel and inhuman treatment must be proven by the preponderance of credible evidence. Smith v. Smith, 614 So.2d 394, 396 (Miss.1993). Although cruel and inhuman treatment usually must be shown to have been systematic and continuous, a single incident may provide grounds for divorce. Rakestraw v. Rakestraw, 717 So.2d 1284, 1287(¶ 8) (Miss.Ct.App.1998).

¶ 17. In this case, Bhavna testified to continuing abuse and mistreatment at the hands of Arvind beginning at the time they were married and continuing until she left him for the second and final time in 2005. Despite her testimony, the testimony of her sister, the evidence she presented, and the discovery admissions, the chancellor found that Bhavna’s “main complaint was of being unhappy, embarrassed and desirous of a change in affection by the Defendant.” After reviewing the record, we do not agree that was Bhavna’s main complaint, nor do we find that she failed to meet the standard required to grant a divorce based on cruel and inhuman treatment.

¶ 18. In support of her claim of divorce, Bhavna testified that Arvind physically abused her approximately two to three times per year throughout most of their marriage. She admitted that the frequency of the physical abuse lessened toward the end of the marriage, but it continued to happen at least once a year. Bhavna did not go into detail about each instance of abuse that occurred throughout their twenty-seven-year marriage. She did, however, tell the court about the times when Arvind hit her while she was pregnant, struck her in the face, pinned her to the ground with his hands on her throat, and struck her with a belt. She also said she could not sleep on her right side because of an injury she sustained when Arvind pushed her. Bhavna claimed that all of the abuse created in her a sense of fear that Arvind might abuse her at any time.

¶ 19. In addition to the physical abuse, Bhavna told the court that Arvind would constantly verbally harass her and that he threatened her life on three occasions. Arvind would often stay out all night without telling Bhavna, and he lost excessive amounts of money at the casinos. Bank records that Bhavna entered into evidence reflected thousands of dollars that Arvind spent during each trip to the casino, with more than $50,000 spent there in 2004.

¶ 20. Arvind was also unfaithful to his wife. Soon after Bhavna and Arvind were married, Bhavna found out that he had remained in a relationship with one of his girlfriends. Later on, Bhavna even contracted a sexually transmitted disease from Arvind as a result of his adultery. Ultimately, Arvind’s treatment of Bhavna led her to attempt to commit suicide twice and to move out of the marital home on two occasions.

¶21. Rule 8.03 of the Uniform Chancery Court Rules requires that “in all uncontested divorce cases, except irreconcilable differences, the testimony of the plaintiff must be substantially corroborated.” This Court has stated the following:

The corroborative evidence will be sufficient if it proves such substantial facts and circumstances as will serve to engender in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essential particulars, and is not the exaggerated product of those wishful mental processes which passion and the consuming present desire for the relief prayed, so often present in this type of cases.

Reed, 839 So.2d 565 at (¶ 25) (quoting Anderson v. Anderson, 190 Miss. 508, 513, 200 So. 726, 728 (1941)).

¶ 22. To corroborate her testimony, Bhavna put her sister on the stand. Bhav-na lived with her sister, Kay, at the time of trial, and she had gone to stay with Kay previously when she left Arvind. Kay recounted some of the injuries Bhavna suffered during the marriage. Kay also told the court about one of Bhavna’s suicide attempts and her general sense of unhappiness and discontent that resulted from the abuse. Bhavna offered into evidence photographs representing some of her injuries and medical records to document Arvind’s abuse and her attempted suicide. The requests for admissions that the chancellor deemed admitted were also corroborative of Bhavna’s version of the facts.

¶ 23. Mississippi courts have affirmed divorce decrees in which the underlying case was based on similar corroborative evidence. See Labella v. Labella, 722 So.2d 472, 474(¶ 6) (Miss.1998) (photos and father’s testimony sufficient corroboration to prove cruel and inhuman treatment); see also McKee v. Flynt, 630 So.2d 44, 48-49 (Miss.1993) (husband’s admission of two abusive incidents and testimony of witnesses who observed bruises and scratches were sufficient corroboration); Fulton v. Fulton, 918 So.2d 877, 880-81 (¶¶ 7-10) (Miss.Ct.App.2006) (three witnesses, none of whom saw any actual abuse, were sufficient corroboration).

¶ 24. On appeal, Arvind also argues for condonation. However, the chancellor did not address condonation, and Arvind’s argument has no merit. After Bhavna moved back into the marital home, Arvind resumed his abusive ways by striking Bhavna with a belt one night. Cruel and inhuman treatment is not condoned when the parties continue to cohabit, but it may be condoned if the parties resume their relationship after a separation. Langdon v. Langdon, 854 So.2d 485, 490-91(¶18) (Miss.Ct.App.2003). “However, where condonation has occurred, if the cruel conduct subsequently occurs, the previous offenses are revived for the chancellor’s consideration of the ground of habitual cruel and inhuman treatment.” Id. Bhavna did not condone Arvind’s abuse of her throughout the years, and even though she moved back home with him, his prior actions were revived for consideration when he resumed his old habits by striking her with a belt.

¶ 25. Ultimately, we find that Bhavna met her burden of proving cruel and inhuman treatment by a preponderance of the evidence. She offered her testimony of the physical, verbal, and emotional abuse and its impact on her. We also find that Bhavna provided sufficient corroboration to support her claim. The evidence established that the relationship was unsafe for Bhavna, and it was so revolting to her that she could not continue with the marriage.

¶ 26. Arvind was not allowed to call any witnesses, and he did not rebut Bhavna’s version of events. He cross-examined witnesses and argued that Bhavna failed to carry her burden of proof. The chancellor agreed with Arvind and found that Bhav-na’s evidence was insufficient to grant her a divorce. However, applying a de novo review, we find that the evidence was sufficient and that the chancellor applied an erroneous legal standard in ruling that Bhavna did not prove cruel and inhuman treatment by a preponderance of the evidence. We, therefore, reverse on this issue and remand to the chancery court with instructions to enter a divorce decree and for further proceedings consistent with this opinion.

II. Whether the chancellor improperly weighed the requests for admissions that were deemed admitted.

¶ 27. Bhavna next argues that it was error to deny her motion to alter or amend judgment pursuant to Rule 59(e) of the Mississippi Rules of Civil Procedure. She claims the chancellor did not give the proper weight to the requests for admissions that were deemed admitted after Ar-vind refused to answer. The chancellor referenced the discovery admissions and took them into consideration in his ruling, but Bhavna argues that the chancellor should have found that the admissions conclusively established grounds for divorce based on habitual cruel and inhuman treatment.

¶ 28. “[I]n order to succeed on a Rule 59(e) motion, the movant must show: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice.” Brooks v. Roberts, 882 So.2d 229, 233(¶ 15) (Miss.2004). We will review a trial court’s denial of a Rule 59 motion under an abuse of discretion standard. Id.

¶ 29. The chancellor relied on section 93-5-7 of the Mississippi Code Annotated (Rev.2004), which states that, in divorce proceedings, “admissions made in the answer shall not be taken as evidence.” However, in this case, the admissions at issue were not taken from Arvind’s answer to Bhavna’s complaint. The admissions deemed admitted resulted from Bhavna’s requests for admissions to which Arvind refused to respond. Pursuant to Rule 36(a) of the Mississippi Rules of Civil Procedure, a matter will be deemed admitted if the party upon whom the request was served does not respond nor file an objection addressed to the matter. Thereafter, the matter is conclusively established unless the court permits the admission’s withdrawal or amendment. M.R.C.P. 36(b).

¶30. In his ruling, the chancellor also took into account the interest of the State in the marriage. The State has an interest in divorce proceedings, which is represented through the court. Rawson v. Buta, 609 So.2d 426, 430 (Miss.1992). The supreme court held the following:

It is the duty of the court, regardless of the pleadings of the parties, to fully inquire into the facts and circumstances of each case and to act accordingly. The [Sjtate’s interest is proven through its refusal to allow default judgments in divorce cases and its requirement of proof on the pleadings.

Id.

¶ 31. In the order denying Bhavna’s motion to alter or amend the judgment, the chancellor noted that the admissions were “accepted as conclusive in so far as they went.” The order denying Bhavna’s motion stated that “[t]he Court considered those admissions with the other proof and found the Plaintiffs proof insufficient to establish cruel and inhuman treatment.” Therefore, the chancellor took the admissions into consideration, but he found that the admissions, combined with Bhavna’s testimony and the other evidence, were insufficient to establish grounds for divorce.

¶ 32. As dealt with in the previous point of error, it is with the chancellor’s determination of the sufficiency of the evidence that we find error, not his treatment of the admissions. The chancellor properly deemed the requests for admissions to be admitted and, thereafter, treated them as conclusive. He also considered them in light of the State’s interest in divorce proceedings.

¶ 33. As Bhavna and the chancellor both point out, admissions may go to the ultimate issue in a case. Gilcrease v. Gil-crease, 918 So.2d 854, 858(¶ 7) (Miss.Ct. App.2005). However, the admissions in this proceeding do not go to the ultimate issue. The following were deemed admitted:

(1) You have committed sexual intercourse with someone other than your spouse during marriage.
(2) You have physically abused your wife.
(3) You have tried to strangle your spouse during the marriage.
(4) You have hit your spouse during the marriage.
(5) You have yelled at and cursed your spouse during the marriage.
(6) You have stayed away from the marital residence overnight without justification or reasonable notice to your spouse during the marriage.
(7) You have whipped your spouse with a belt during the marriage.
(8) You have punched your spouse during the marriage.
(9) You have caused your spouse to be in fear for her physical safety during the marriage.
(10) You have caused the marriage to become unbearable for your spouse due to your actions toward her.
(11) You have caused your spouse to suffer mental abuse during the marriage.
(12) On or about July 13-14, 2004, you were absent from the marital residence overnight until approximately 5:30 a.m., leaving no information with your spouse as to your whereabouts.

While they do not establish the ultimate issue, the admissions do corroborate Bhav-na’s testimony in support of a divorce on the ground of cruel and inhuman treatment.

¶ 34. We do not find that the chancellor abused his discretion in denying the motion to alter or amend the judgment in regard to the weight given to the admissions. The chancellor took the admissions “as conclusive in so far as they went.” They were not conclusive, in and of themselves, of the ultimate issue, as Bhavna claims. This issue is without merit.

III. Whether it was error to set aside the entry of default and allow Arvind to file an untimely answer to the complaint.

¶ 35. Bhavna’s last argument is that it was error for the chancellor to set aside the entry of default and to allow Arvind to file an answer more than a year after Bhavna filed her complaint.

¶ 36. We will review a trial court’s decision to vacate an entry of default using an abuse of discretion standard. Stanford v. Parker, 822 So.2d 886, 887-88(¶ 6) (Miss.2002). There are three factors for a trial court to consider in deciding whether to set aside a default judgment: (1)the cause of default, (2) whether the defendant has a colorable defense to the claim, and (3) any prejudice to the plaintiff that would result if the judgment was vacated. Id. at 888(¶ 6).

¶ 37. The chancellor took these factors into account in his decision to set aside the default. The chancellor found that there was good cause for Arvind’s failure to timely file a response to the pleading. Specifically, Arvind wanted to reconcile with Bhavna, a purpose the chancellor found was best served by not filing an answer at the time. The parties did reconcile and remained together for almost a year before Bhavna again went to live with her sister. The chancellor also found that Arvind might have had a meritorious defense and that there was no prejudice to Bhavna because she, nevertheless, had to prove the elements of her divorce claim.

¶ 38. We do not find this was an abuse of discretion; therefore, it was not error to set aside the entry of default and allow Arvind to file an answer. This issue is without merit.

¶ 39. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS AFFIRMED IN PART AND REVERSED IN PART AND REMANDED TO THE CHANCERY COURT WITH INSTRUCTIONS TO ENTER A DIVORCE DECREE AND 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, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.


author: MYERS, P.J.,

text:
    In re the ESTATE OF Markin A. BELL, Deceased. Jeana Bell, Appellant v. Michael E. Dixon a/k/a Mike Dixon d/b/a Central Energy Services, Appellee.
    No. 2007-CA-00435-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.

      C. Eiland Harris, attorney for appellant.
    Joseph Leray McNamara, Stephanie C. Edgar, attorneys for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. The Estate of Markin A. Bell (Estate) appeals the Hinds County Circuit Court’s grant of summary judgment in favor of Michael E. Dixon d/b/a Central Energy Services (Dixon). The circuit court entered an order of dismissal with prejudice based upon doctrine of res judi-cata, finding that the Estate’s complaint was brought upon the same facts and was based on the same damages of an earlier suit brought against Dixon by the wrongful death beneficiaries. The Estate argues that dismissal of the case was improper because the first case brought against Dixon was dismissed without a decision on the merits. Finding that the circuit court did not err in dismissing the Estate’s complaint based upon the principles of res judicata, we affirm.

UNDERLYING FACTS AND PROCEDURAL HISTORY

¶ 2. On July 18, 2003, an automobile accident between Markin A. Bell (Bell) and Michael E. Dixon claimed the life of Bell. On August 30, 2004, Jeana Bell (Jeana) filed a lawsuit, individually and on behalf of the wrongful death beneficiaries of Bell, related to the accident. This 2004 suit was eventually dismissed by the circuit court with prejudice due to failure to comply with the court’s orders regarding discovery. The circuit court subsequently denied Jeana’s motion to reconsider, and no appeal was ever filed in that cause. On July 17, 2006, another suit was filed against Dixon. This 2006 suit was brought by Jeana as the administratrix of the Estate and is almost virtually identical to the 2004 suit. Both suits were brought based upon the same accident between Bell and Dixon and sought the same damages from Dixon. Upon Dixon’s motion, summary judgment was granted dismissing the latter suit based upon the principles of res judicata. Aggrieved, Jeana, as administra-trix of the Estate, appeals, seeking a determination of whether the Estate’s claims are barred by the doctrine of res judicata.

STANDARD OF REVIEW

¶ 3. The well-settled standard of review for summary judgment is de novo. Quinn v. Estate of Jones, 818 So.2d 1148, 1150(¶ 9) (Miss.2002).

DISCUSSION

¶ 4. The doctrine of res judicata, or claim preclusion, will operate to bar a subsequent attempt to litigate a claim already decided. Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 232(¶ 22) (Miss.2005). A proper application of the doctrine of res judicata necessarily involves a finding of four identities: “(1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” Id. at 232(¶ 24). “If all four identities are present, then the parties are precluded from re-litigating any previously decided issues in a subsequent lawsuit.” Pro-Choice Miss. v. Fordice, 716 So.2d 645, 665(¶ 70) (Miss.1998).

(1) Identity of Subject Matter

¶ 5. This case deals with the same subject matter, an automobile accident that occurred on July 18, 2003, between Bell and Dixon. Thus, this element of res judicata is met.

(¾) Identity of the Cause of Action

¶ 6. The second requirement, identity'of the cause of action, is met when commonality is found in the underlying facts and circumstances for which the claim is asserted and relief is sought. Riley v. Moreland, 537 So.2d 1348, 1354 (Miss.1989). The cause of action in both cases is a claim for the wrongful death of Bell. The claim centers upon the same set of facts and the same allegations of liability thus meeting the test for identity of the cause of action. We find sufficient identity in both the causes of action to invoke the doctrine of res judicata. See id.

(S) Identity of the Parties

¶ 7. The identities of the parties must be at least in privity with one another. Williams v. Vintage Petroleum, Inc., 825 So.2d 685, 689(¶ 17) (Miss.Ct.App. 2002). It is not necessary to use strict identity. Little v. V & G Welding Supply, 704 So.2d 1336, 1339(1115) (Miss.1997). “Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties.” Williams, 825 So.2d at 689(¶ 17) (quoting Little, 704 So.2d at 1339(¶ 15)). “Privity” is a broad concept that requires us to look at the surrounding circumstances in order to determine whether a claim preclusion is justified. Id. In both the first case and the second case, Jeana is a party. The only difference is that the initial suit was brought on behalf of Jeana, individually and on behalf of the wrongful death beneficiaries, while the second cause was filed by Jeana as administratrix of the Estate. Therefore, the third identity requirement is met.

(U) Identity of the Quality or Character of a Person Against Whom the Claim Is Made

¶ 8. The last identity for determination is the identity of the quality or character of the person against whom the suit is brought. Where someone is sued in a limited or representative capacity in one cause and then personally in another, the party’s “quality or character” is not the same in both actions. McCorkle v. Loumiss Timber Co., 760 So.2d 845, 856(¶ 47) (Miss.Ct.App.2000). However, this is not the case before us. Dixon and his company, Central Energy Services, were named as defendants in both the first and second suit. Accordingly, we find that the identity or the character of the defendants is the same in both suits. See id.

CONCLUSION

¶ 9. Therefore, since the four identities are met, we find that the circuit court was proper in granting Dixon’s motion for summary judgment and dismissing the second complaint based upon res judicata.

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY GRANTING SUMMARY JUDGMENT AND DISMISSING THE SECOND COMPLAINT WITH PREJUDICE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Patricia AUSTIN, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY and Fitzgerald Casino, Appellees.
    No. 2007-CC-00200-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.
    Patricia Austin, Appellant, pro se.
    Leanne Franklin Brady, attorney for ap-pellees.

      Before LEE, P.J., CHANDLER and BARNES, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. The Circuit Court of Tunica County denied the appeal of Patricia Austin and, thereby, affirmed the decision of the Board of Review of the Mississippi Department of Employment Security (MDES). The Board’s decision adopted the findings of the administrative appeals officer and affirmed the decision to deny benefits to Austin. Aggrieved, Austin appeals and argues (1) that she proved by substantial evidence that Fitzgerald Casino did not dismiss her for misconduct and (2) that MDES improperly relied on hearsay testimony in its findings.

FACTS

¶ 2. Austin began working for Fitzgerald Casino in Tunica, Mississippi in 2004. She worked as a security officer for the casino for almost two years when she was terminated for misconduct on June 13, 2006.

¶ 3. Following her termination, Austin filed a claim with MDES. The claims examiner denied Austin’s claim, and Austin appealed that decision. The administrative appeals officer then heard testimony from Austin and Melinda Drisdale, a representative of Fitzgerald.

¶ 4. Drisdale told the appeals officer that Austin was terminated because she left her post twice in one day to use the restroom without radioing for another security officer or supervisor to watch her post while she was gone. Austin’s conduct was recorded by the security cameras. She said that another security officer, Jim Ennis, also noticed that Austin’s post was unmanned. Drisdale described Austin’s post as a type of podium at the location where the Fitzgerald Hotel joined the casino. According to Drisdale, Fitzgerald’s policy and gaming regulations required a security officer to be on watch at all times to prevent minors from entering the casino. If a security officer needed to leave her post, the policy required that she radio another officer or a supervisor to watch her post while she is gone. New security officers were trained on this policy as part of the initial employment orientation with Fitzgerald.

¶ 5. This was not the first time Austin had left her post unattended. Fitzgerald previously reprimanded Austin for similar behavior on November 11, 2005. Austin was found to have left her post three times in one day in order to go to the gift shop. Drisdale said Austin initially denied the allegations, but security camera footage showed Austin leaving her post and entering the gift shop. Austin’s denial, which the security camera footage refuted, caused Fitzgerald to reprimand Austin again, this time for dishonesty.

¶ 6. Austin did not deny that she left her post, but she claimed that she was on medication that required her to make frequent trips to the restroom. She said she would run to the restroom quickly and get back to her post because if she had waited to radio someone “she would have been mess up [herself].” She admitted that she was aware of the policy of radioing for a replacement, but she said she did not try to call for help that day. Not only could she not have waited to use the restroom, but sometimes they would get radios that did not work very well. Austin claimed that she had a bad radio on the day in question.

¶ 7. In regard to the 2005 incident, Austin admitted she left her post to go to the gift shop. However, she argued that, although she was in the gift shop, she could see her post at all times. Austin denied that she was reprimanded for dishonesty following the 2005 incidents.

¶ 8. The appeals officer found that Austin was discharged for two instances of leaving her post without radioing for someone to replace her while she was gone. Austin knew of the company policy from her training and from her previous reprimand for similarly leaving her post three times without radioing for backup. Therefore, the appeals officer found that Austin’s actions constituted misconduct, and she was properly denied benefits.

¶ 9. Thereafter, Austin appealed the decision to the Board of Review. The Board affirmed the decision, and Austin filed an appeal with the Circuit Court of Tunica County. The circuit court found that the findings of fact were supported by substantial evidence and that the applicable law was correctly applied. Accordingly, the circuit court affirmed the Board’s decision to deny Austin benefits. Austin appealed the circuit court’s decision, and it is that appeal that is now before this Court.

STANDARD OF REVIEW

¶ 10. So long as the factual findings of the Board are supported by substantial evidence and not based on fraud, this Court will take them as conclusive, and we must limit our review to questions of law. Miss.Code Ann. § 71-5-531 (Supp.2007). Our standard of review is as follows:

This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency.

Miss. Employment Sec. Comm’n v. Danner, 867 So.2d 1050, 1051(¶ 6) (Miss.Ct.App.2004) (quoting Allen v. Miss. Employment Sec. Comm’n, 639 So.2d 904, 906 (Miss.1994)).

ISSUES AND ANALYSIS

I. Whether there was substantial evidence to support the denial of employment benefits to Austin.

¶ 11. Austin’s first issue, quoted verbatim, reads as follows:

Whether the Board of Review Decision should be vacated finding the employee, Patricia Austin, proved by substantial evidence that she did not commit misconduct connected with her work, that is conduct evincing such willful and wanton disregard of standards of behavior which employer has the right to expect from his employee, or carelessness and negligence in such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design.

¶ 12. The employer bears the burden of proving misconduct by the employee. Miss.Code Ann. § 71-5-513(A)(1)(c) (Supp.2007). The employer must prove by “substantial, clear, and convincing evidence” that an employee is disqualified from receiving benefits. Pannell v. Tombigbee River Valley Water Mgmt. Dist., 909 So.2d 1115, 1120(¶ 12) (Miss.2005) (quoting City of Clarksdale v. Miss. Employment Sec. Comm’n, 699 So.2d 578, 580(¶ 15) (Miss.1997)). In its analysis of the term “misconduct,” the supreme court adopted the Wisconsin supreme court’s definition of the term. As it relates to the unemployment compensation statute, misconduct is:

[C]ondhct 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. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term.

Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982) (citing Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941)).

¶ 13. In the present case, there were facts to support the denial of benefits to Austin. Drisdale, as representative of Fitzgerald, informed the appeals officer that Austin left her post unattended twice in one day. This was a violation of Fitzgerald’s company policy, which required a security officer to be at the post at all times. Admittedly, Austin was only absent for short periods of time, but her absences allowed for the possibility that minors could walk from the hotel into the casino.

¶ 14. Austin did not deny the allegations. She admitted she left her post and did not attempt to radio for someone to cover for her while she went to the restroom. Austin also admitted that she was aware of the casino’s policy that required her to radio another security officer if she needed to leave her post. When she was hired, Austin was instructed on this policy in her initial training and in a reprimand she received the prior year for leaving her post unattended three times in one day.

¶ 15. In making their findings, the claims examiner and the appeals officer took into account Austin’s prior infraction for leaving her post. This was proper because repeated neglect of an employer’s interest may constitute misconduct. Miss. Employment Sec. Comm’n v. Jones, 755 So.2d 1259, 1262(1110) (Miss.Ct.App.2000) (citing Miss. Employment Sec. Comm’n v. Borden, Inc., 451 So.2d 222, 225 (Miss.1984)).

¶ 16. We cannot say, from the facts presented, that the circuit court erred in affirming the decision of the Board. Austin repeatedly acted in disregard of company policy. She was warned once, yet she decided to leave her post unattended again, an act that could have allowed an unattended minor to enter the casino in her absence. There was substantial evidence to support the Board’s decision. There was no suggestion, nor do we find: (1) that the decision to deny Austin benefits was arbitrary or capricious, (2) that it was beyond the scope or power of the MDES, or (3) that Austin’s constitutional rights were violated. This issue is without merit.

II. Whether Austin was improperly denied benefits based on hearsay testimony.

¶ 17. Austin’s second issue, which is stated verbatim below, pertains to the evidence on which the appeals officer relied:

Whether there is substantial evidence to support the agency finding that Fitzgerald Casino met its burden of proof by presenting hearsay evidence that Austin committed disqualifying misconduct, and whether the circuit judge erred by not addressing Austin’s claim of hearsay evidence by Fitzgerald Casino’s failure to present affidavits of persons accusing Austin of misconduct.

¶ 18. Drisdale testified as to Fitzgerald’s company policy and as to why Austin was reprimanded and later dismissed. Austin refers to Drisdale’s testimony as “uncorroborated hearsay,” while disregarding the fact that Austin actually corroborated the majority of that testimony.

¶ 19. Austin admitted all the facts that were grounds for the denial of her benefits. Austin said she left her post unattended twice on the date in question, and she did not radio for backup to watch her post while she was gone. She admitted that she was aware of the policy requiring a security officer to call someone if she needed to leave her post, and she did not attempt to call anyone. She also confirmed that she previously left her post three times in one day to go into the gift shop, for which she was reprimanded.

¶20. Rule 801(d)(2) of the Mississippi Rules of Evidence provides, in pertinent part, that a statement is not hearsay if “[t]he statement is offered against a party and is (A) his own statement, in either his individual or representative capacity....”

¶ 21. Austin’s own statements were not hearsay, and they were sufficient substantial evidence in support of the circuit court’s decision to affirm the denial of her employment benefits. This issue is without merit.

¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED.

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

      . The Mississippi Employment Security Commission is now known as the Mississippi Department of Employment Security, Office of the Governor. Miss.Code Ann. § 71-5-11(F) (Supp.2007).


text:
    Edward James HOPSON a/k/a Edward J. Hopson, Appellant v. MISSISSIPPI STATE PAROLE BOARD, Appellee.
    No. 2007-CP-00643-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.

      Edward James Hopson, Appellant, pro se.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Edward James Hopson, a state inmate in the custody of the Mississippi Department of Corrections (MDOC), appeals the Mississippi State Parole Board’s dismissal of his motion to show cause regarding the evidence supporting the denial of his parole. Hopson alleges he was denied parole, in part, due to reliance by the parole board on allegedly false information. After the denial, Hopson filed a complaint against the Mississippi State Parole Board (parole board) in the Circuit Court of Sunflower County. Hopson asked the circuit court, in a petition to show cause, to review the denial of his parole and alleged that the parole board committed perjury when it denied him parole. Hopson also claimed the parole board used false information and unsupported claims to deny his parole. The circuit court dismissed his appeal, finding that the parole board is given complete discretion when determining whether or not to award parole status. The circuit court further found that there was no evidence of a constitutional violation since there is no constitutionally recognized liberty interest in parole. Scales v. Miss. State Parole Bd., 831 F.2d 565, 566 (5th Cir.1987). The circuit court ultimately found that there was no reason to review the actions of the parole board and dismissed Hopson’s petition to show cause. Hopson now seeks review of the circuit court’s decision and requests that the parole board be compelled to show evidentia-ry support for its denial of his parole.

FACTS AND PROCEDURAL HISTORY

¶ 2. Hopson is an inmate, in the custody of the MDOC, who was denied parole on January 9, 2007. Hopson filed a complaint against the parole board on February 12, 2007. In his initial complaint, Hopson asked the circuit court to show cause why he was not granted parole. Hopson alleged that he was denied parole based, in part, on false information supplied to the parole board. Hopson also challenged the parole board’s determination that he lacked the ability to be a law-abiding citizen.

¶ 3. In his complaint on appeal, Hopson alleges that the denial of his parole was based, in part, on false information. Hop-son alleges he had no prior police or juvenile record and claimed that the parole board was incorrect in finding that he was incapable of being a law-abiding citizen. Hopson also claims that the parole board improperly considered a misdemeanor conviction in denying his parole, which he alleges had actually been dismissed. Hop-son alleges that his constitutional rights have been violated since the parole board relied on false information when denying him parole. Hopson alleges the parole board should have been required to produce evidence or records showing that the information they relied on in denying him parole was, in fact, accurate.

¶ 4. The State argues on appeal that the parole board, not the circuit court, has jurisdiction over parole matters; and Hop-son’s failure to state a viable constitutional challenge left the circuit court without jurisdiction. The State further argues that the parole board’s finding that Hopson was incapable of being a law-abiding citizen is subjective in nature; thus it is impossible to prove that this finding is “false.” Additionally, the State asserts that since Hop-son failed to submit a copy of the parole board’s action sheet, it is impossible to determine what actual reasons the parole board offered for denying Hopson parole. The State also contends that the circuit court had no authority to require the parole board to offer tangible evidence to support its parole decisions.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING HOPSON’S MOTION TO REVIEW THE MISSISSIPPI STATE PAROLE BOARD’S DENIAL OF PAROLE OR TO COMPEL THE PAROLE BOARD TO PRODUCE EVIDENCE TO SUPPORT THE DENIAL OF PAROLE.

¶ 5. Hopson argues that the circuit court erred in dismissing his petition to show cause regarding the evidence supporting its denial of parole. Hopson also claims that the circuit court should review the parole board’s actions. In addition, Hopson complains, on appeal, that the parole board should be required to produce the tangible evidence or records on which it based its denial of Hopson’s parole. Hopson also contends that he was not present at the parole hearing, which denied him parole.

¶ 6. “By statute, the Parole Board is given ‘absolute discretion’ to determine who is entitled to parole within the boundaries of factors set forth in Miss.Code Ann. § 47-7-3.” Cotton v. Miss. Parole Bd., 863 So.2d 917, 921(¶ 11) (Miss.2003). Prisoners have no constitutionally recognized liberty interest in parole. Mack v. State, 943 So.2d 73, 75(¶ 6) (Miss.Ct.App.2006). Further, Mississippi Code Annotated section 47-7-5(3) (Rev.2004) provides that: “the [parole] board shall have exclusive responsibility for the granting of parole as provided by Section 47-7-3 and 47-7-17.” “This control is independent of the circuit court’s sentencing authority.” Cotton, 863 So.2d at 921(¶ 11) (citing Mitchell v. State, 561 So.2d 1037, 1039 (Miss.1990)).

¶ 7. The circuit court, in its dismissal of Hopson’s petition to show cause, held that the parole board does, in fact, have absolute discretion to confer or deny parole, citing Scales, 831 F.2d at 566. This Court, in Johnson v. Miller, 919 So.2d 273, 276(¶ 10) (Miss.Ct.App.2005), held that to review the parole board’s determinations, and therefore, the court properly dismissed the complaint declined to review the parole board’s determination, finding it would be improper because the circuit court did not have jurisdiction.

¶ 8. In addition, this Court has determined that “[i]f the Parole Board is under no obligation to have the offender present at his parole hearing, it logically follows that the Board is under no obligation to disclose its file to the offender.” Edmond v. Miller, 942 So.2d 203, 206(¶ 18) (Miss. Ct.App.2006). Here, Hopson complains that the parole board should be required to produce tangible evidence supporting its denial of parole to him. We find no merit to his argument. Therefore, we find no error in the dismissal of Hopson’s petition to show cause.

II. WHETHER THE DENIAL OF PAROLE VIOLATED HOP-SON’S DUE PROCESS OR EQUAL PROTECTION RIGHTS.

¶ 9. Here, Hopson alleges that he has been denied due process under the law as a result of the denial of his parole because it was based, in part, on allegedly false information. Hopson also alleges a violation of his equal protection rights based on the parole board’s alleged perjury and reliance on false information in denying him parole. The State argues that since there is no constitutionally recognized liberty interest with regard to parole, Hopson has not alleged a viable claim showing that he has been denied due process under £he law. The State also argues that Hopson has failed to establish an equal protection claim.

¶ 10. We begin our review by recognizing that:

While maintenance of a parole system does not, in and of itself, create a protected interest in parole, one exists only where mandatory language creates a presumption of entitlement to parole once certain objective criteria are met. However, because the Mississippi parole statutes contain no such mandatory language, employing the permissive “may” rather than “shall,” prisoners have “no constitutionally recognized liberty interest” in parole.

Edmond v. Hancock, 830 So.2d 658, 660(¶ 5) (Miss.Ct.App.2002) (citing Vice v. State, 679 So.2d 205, 208 (Miss.1996)). Therefore, this Court finds from its review of the record that Hopson has failed to show that his due process rights have been violated by the parole board’s actions.

¶ 11. Hopson also alleges that his equal protection rights have been violated by the parole board’s actions. In Associated Press v. Bost, 656 So.2d 113, 117 (Miss.1995) (quoting Rias v. Henderson, 342 So.2d 737, 738-39 (Miss.1977) (citations omitted)), the Mississippi Supreme Court held that in considering whether there has been a violation of equal protection rights, we must determine the following:

In determining whether a statute is vio-lative of the equal protection clause, we have stated:
the United States Supreme Court has traditionally employed two standards of review. (1) In the general field of social and economic legislation, the Court has developed ... the rational basis test. Under this test a statute is presumed to be constitutional and will not be set aside as long as it is aimed at a permissible legislative purpose and as long as it is based on some rational justification to achieve the purpose intended. (2) Where, however, legislation seeks to make certain classifications, most notably on the basis of race, these classifications are immediately suspect. The presumption of validity disappears and applying rigid scrutiny, the state is placed under a heavy burden to show a compelling state interest in justifying the classification.

¶ 12. We find that Mississippi Code Annotated section 47-7-3 is neutral on its face and contains no language separating individuals based on suspect classifications. While race is a suspect class entitled to strict scrutiny, Hopson has failed to show evidence either in his petition or in the record that establishes that he suffered any equal protection violation by the application of the statute based on a suspect classification. Id. Thus, we find no merit in his argument and affirm the ruling of the circuit court.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY DISMISSING HOPSON’S PETITION TO SHOW CAUSE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.

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


text:
    Bobby L. DEERE, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-00584-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.
    Bobby L. Deere, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., IRVING and ISHEE, JJ.
   MYERS, P.J.,

for the court.

¶ 1. Bobby L. Deere appeals the Sunflower County Circuit Court’s denial of his motion for post-conviction relief. Deere asserts that the circuit court incorrectly calculated his sentence during his probation revocation hearing. Deere contends that he is not subject to the entire reinstatement of his suspended sentence. Finding no error in the decision of the circuit court, we affirm the denial of Deere’s motion for post-conviction relief.

STANDARD OF REVIEW

¶ 2. Our review of a circuit court’s denial of a motion for post-conviction relief is limited to reversal only when the decision is clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999).

DISCUSSION

¶ 3. In 1990, Deere pleaded guilty in the Sunflower County Circuit Court to armed robbery and was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). However, fifteen years of the sentence were suspended provided that Deere successfully serve the first five years on probation. In December 1999, while Deere was in his probation period, Deere committed another armed robbery, thereby violating the terms of his probation. At the revocation hearing held in January 2000, Deere was remanded to the custody of the MDOC to serve the entire fifteen years. Approximately seven years later, Deere filed a motion to clarify his sentence. Deere claimed that his sentence was incorrectly calculated during the revocation hearing and sought to have his sentence reduced from fifteen years to five years. His motion for clarification of sentence was treated by the circuit court as one for post-conviction relief that was denied.

¶ 4. “If a prisoner is under court imposed probation, that prisoner may be incarcerated if the conditions of probation are not followed.” Johnson v. State, 925 So.2d 86, 92(¶ 11) (Miss.2006). We have held that “after the probationer is arrested, ‘the court ... shall cause the probationer to be brought before it and may continue or revoke all or any part of the probation or the suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.’ ” McGaughy v. State, 954 So.2d 452, 454(¶ 6) (Miss.Ct.App.2006) (quoting Miss.Code Ann. § 47-7-37 (Supp.2006)). In this case, after Deere violated probation by committing another armed robbery for which he was arrested, the circuit court revoked all of Deere’s fifteen-year suspended sentence. This revocation and reinstatement of the initially suspended sentence was well within the judge’s discretion and within the confines of the statutory authority found in Mississippi Code Annotated section 47-7-37 (Supp.2006). Therefore, the denial of Deere’s motion for post-conviction relief was not in error. We, accordingly, affirm.

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

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


text:
    TRIANGLE CONSTRUCTION COMPANY, INC., Appellant v. FOSHEE CONSTRUCTION COMPANY, INC., Appellee.
    No. 2007-CA-00233-COA.
    Court of Appeals of Mississippi.
    March 11, 2008.

      Anselm J. McLaurin, Brandon, attorney for appellant.
    Richard D. Mitchell, attorney for appel-lee.
   MYERS, P.J.,

for the Court.

¶ 1. Triangle Construction Company, Inc. (Triangle), the subcontractor, filed suit in the Circuit Court of Hinds County against Foshee Construction Company, Inc. (Foshee), the general contractor, on March 3, 2005, alleging nonpayment for several different work projects. After several delays during which attempts were made to settle the matter before trial, Foshee propounded discovery requests to Triangle on April 12, 2006, which included a set of requests for admissions. Responses were due on May 15, 2006; however, Triangle failed to prepare responses timely to the requests for admissions. On June 5, 2006, Foshee requested the trial court enter an order acknowledging Triangle’s failure to respond as an admission to the matters set forth in its request for admissions. Foshee, in the same motion, requested a grant of summary judgment. Triangle responded by moving to withdraw the deemed admitted requests for admissions and also filing its answer to the requests for admissions. But, the trial court granted Foshee’s summary judgment motion and dismissed Triangle’s complaint. The trial court found that the late responses to the requests for admissions caused substantial prejudice to Fosh-ee and further found no justifiable excuse for Triangle’s late response. Finding no error in the judgment of the trial court, we affirm.

STANDARD OF REVIEW

¶ 2. Decisions made by the trial court regarding discovery will be examined by an appellate court under an abuse of discretion standard. Prime Rx, LLC v. McKendree, Inc., 917 So.2d 791, 794(¶ 7) (Miss.2005) (citing DeBlanc v. Standi, 814 So.2d 796, 798(¶ 11) (Miss.2002)). Additionally, a trial judge will be granted great discretion with regard to whether it will take certain matters as admitted. Earwood v. Reeves, 798 So.2d 508, 514(¶ 19) (Miss.2001). However, we review a trial court’s grant of summary judgment under a de novo standard. Prime Rx, LLC, 917 So.2d at 794(¶ 7). “Summary judgment may only be granted where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law.” Cole v. Buckner, 819 So.2d 527, 530(¶ 6) (Miss.2002). Further, the evidence must be viewed in a light most favorable to the non-moving party. Id.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. Triangle filed a complaint against Foshee on March 3, 2005. Triangle alleged in its complaint that Foshee failed to pay Triangle for work previously performed on several different projects. Count I claimed Foshee’s failure to pay $15,113.40 for the Van Winkle School project; Count II claimed Foshee’s failure to pay $38,503.50 on the Oakdale Elementary project; Count III claimed Foshee’s failure to pay $41,648 on the Pinelake Baptist Church project; Count IV claimed Foshee’s failure to pay $8,475.25 on the Madison Wal-Mart project; Count V claimed Foshee’s failure to pay $3,970 on the Johnson Controls project; and Count VI sought an award of attorneys’ fees and costs in collecting sums from Foshee.

¶4. Foshee answered the complaint on March 31, 2005, and claimed that Triangle failed to complete all of the work set forth in the original complaint. Foshee subsequently made a total payment of $20,384.40. Triangle, in response, filed an amended complaint on August 15, 2005, recognizing those payments made by Foshee. Foshee timely answered the amended complaint, setting forth the same defenses enumerated in its original answer.

¶ 5. During the subsequent months, attempts were made to settle the dispute between the parties. Both parties agreed to delay answering discovery requests sent by Triangle during this time in order to further facilitate settlement negotiations. However, no settlement was reached and the parties agreed to proceed with discovery. On April 12, 2006, Foshee propounded interrogatories, requests for production of documents, and requests for admissions. However, Triangle failed to answer timely. As a result, Foshee filed a motion for summary judgment on June 5, 2006, arguing that no genuine issue of material fact existed since Triangle failed to respond to the requests for admissions, thereby resulting in those requests being deemed admitted. Subsequently, on June 19, 2006, Triangle sought to withdraw the admissions and additionally responded to the requests for admissions. Nevertheless, the trial court granted Foshee’s motion for summary judgment, and this appeal followed.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DEEMING THE REQUESTS FOR ADMISSIONS ADMITTED FOR FAILURE TO TIMELY RESPOND AND GRANTING SUMMARY JUDGMENT IN FAVOR OF FOSHEE.

¶ 6. A party is allowed thirty days from the date of service to answer requests for admissions under Mississippi Rule of Civil Procedure 36(a). Mississippi Rule of Civil Procedure 6(e) provides that an additional three days is afforded when the requests for admissions are served through the mail. More importantly, under Mississippi Rule of Civil Procedure 36(b), a matter is conclusively established as admitted:

unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney....

¶ 7. However, Mississippi Rule of Civil Procedure 36(b) does provide the trial court with discretion to allow withdrawal of the deemed admitted requests for admissions, stating: “the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.” “Mechanisms exist whereby a trial court may hold that an untimely response does not constitute a deemed admission because the trial court has broad discretion in pretrial matters.” Earwood, 798 So.2d at 516(¶ 26). “However, because of the trial court’s broad discretion in such matters, it certainly may also require that parties comply with the rules as stated.” Id. (the trial court did not abuse its discretion in determining there was no compelling reason to allow disrespect of Rule 36 regarding the set time for responding to requests for admissions). While Mississippi Rule of Civil Procedure 36 provides a harsh penalty for the failure to comply, a trial court is still given great discretion when determining whether it will allow the untimely answers to requests for admissions. Id. at 515 (¶ 22).

¶ 8. Here, we find that the trial court properly used its discretion to deny Triangle’s request to withdraw the deemed admitted requests for admissions. The trial court granted Foshee’s motion for summary judgment, noting that Triangle had waited to file its responses to the requests for admissions and its motion to withdraw the deemed admitted requests for admissions until after Foshee had moved for summary judgment. The trial court further opined that it appeared that Triangle’s late responses seemed to have been produced with the intent to circumvent the effects of summary judgment. Further, the trial court considered Rule 36, applied the rule to the case, and determined that Foshee would be prejudiced if the admissions were allowed to be withdrawn; therefore, the trial court granted summary judgment in favor of Foshee.

¶ 9. “On review, the court is likely to affirm the trial court’s enforcement of Rule 36 according to its terms if no justifiable excuse or explanation was offered for the default.” Langley v. Miles, 956 So.2d 970, 973(¶ 9) (Miss.Ct.App.2006). Here, the attorney for Triangle stated his reasons for the delay in answering the admissions, which included: ordinary conflicts for a busy attorney, the graduation of counsel’s only child, and his sole responsibility in arranging a family law seminar as chairman of the family law section.

¶ 10. In Langley, the attorney for Langley failed to answer the request for admissions timely, which the trial court later deemed admitted on the motion filed by Miles. Id. at 974(¶ 11). The requests for admissions were served on Langley’s counsel on May 16, 2003. Id. Langley filed no response, and on September 11, 2003, the defendants filed a motion to deem the requests for admissions admitted. Id. at 971 (¶ 4). The trial court granted the motion, but on October 9, 2003, Langley’s counsel filed responses to all discovery propounded by the opposing counsel. Id. at 972(¶ 4). Langley’s counsel then filed a motion to withdraw the deemed admitted requests for admissions on October 15, 2003. Id. at 972(¶5). Counsel explained that from May 13, 2003, until July 1, 2003, he had undergone surgery and treatment for melanoma. Id. Counsel further explained that he had not returned to work until late July. Id. Counsel also explained that the paralegal handling the discovery responses for that particular case had subsequently left his office and neglected to alert him of the need to address the requests for admissions. Id.

¶ 11. This Court in Langley found that, although the cancer treatment was an excusable delay, “the trial court was within its discretion in also considering counsel’s neglect of the situation after his illness had resolved and he had returned to work.” Id. at 975 (¶ 14). Additionally, “Langley’s counsel did nothing concerning the requests for admissions until after the defendants had served their motion to deem the requests admitted and for summary judgment.” Id. at 975 (¶ 15). This Court concluded in Langley, that “[biased on [the deemed admitted requests for] admissions ... there was no genuine issue of material fact for trial and that the defendants were entitled to summary judgment.” Id. at 972 (¶ 6).

¶ 12. Similar to the facts of the instant case, in Langley no response was elicited until after the motion to deem the requests for admissions admitted was filed. This Court in Langley went on to state that:

When a party is in default under Rule 36(a), the trial court and the requesting party should not have to wait indefinitely for the defaulter to serve the responses, to file a motion for an extension of time pursuant to Rule 6(b)(2), to file a Rule 36(b) motion to withdraw, or to take other action to attempt to rectify the default.

Id. at 975(¶ 14).

¶ 13. Here, Foshee filed a motion for summary judgment on June 5, 2006, and Triangle filed a motion to withdraw the deemed admitted requests for admissions on June 19, 2006. This Court in Langley noted that, although the result was harsh, the broad power given to the trial court to regulate discovery made the decision to deny the request to withdraw the deemed admitted requests for admissions well ■within the trial court s discretion. Id. at 975(¶ 15). We find no abuse of the trial court’s discretion.

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

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


author: PARKER, Justice.

text:
    Stephen Labatt PORTER et al. v. BLACK WARRIOR FARMS, L.L.C., et al.
    1050566.
    Supreme Court of Alabama.
    Dec. 15, 2006.
    Rehearing Denied July 13, 2007.

      Andrew J. Noble III and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham, for appellants.
    Charles R. Johanson III of Engel, Hair-ston & Johanson, P.C., Birmingham, for appellees.
   PARKER, Justice.

I. Facts

Donald R. Porter (“Donald Sr.”) and Olga Porter (“Olga”) had seven children: Donald, Teddy, Cecil, Shari, Stephen, Marc, and Andrew. Donald Sr. and Olga lived in Gallion and owned real estate located in Hale and Marengo Counties. Donald Sr. died in 1976. Under his will, part of the real estate was to become subject to a trust for the life of Olga (“the Porter Family Trust”), and at her death the remainder was to pass to the seven children as tenants in common.

Cecil had served as trustee of the Porter Family Trust, but in 1999, as part of the settlement of a lawsuit between Cecil and Stephen concerning the trust, Cecil paid $28,400 into the trust and resigned as trustee, at which point Stephen and Marc assumed the roles of cotrustees of the trust.

Olga died on June 27, 2001. By her will, executed April 22, 1986, her portion of the real estate passed to the seven children as tenants in common. Another provision of her will addressed her children’s indebtedness to her:

“Item III
“FORGIVENESS OF DEBT
“If any of my children or their estate or the beneficiaries thereof shall be indebted to me in any amount at my death, whether such debt shall be evidenced by note, mortgage or otherwise, I direct and require that all of such indebtedness and all interest thereon be forgiven and cancelled in its entirety, it being my intention by this devise to relieve any of my children and their estate and the beneficiaries thereof of any and every obligation to repay said indebtedness or any part thereof or any interest thereon. I direct that any such forgiveness of any indebtedness, including any interest thereon, shall be considered as satisfaction and shall be charged against such child or his or her estate or the beneficiaries thereof, and the amount of such debt so forgiven shall be deducted from the devises herein given to such child.”
In March 2000, Olga sold the family beach house. Of the proceeds from the sale, Olga sent $160,000 to Stephen and $140,000 to Marc to invest for her. Marc placed her $140,000 in Porter Capital and sent Olga a monthly check representing the interest earned. Stephen, who was a resident of California, used her money, along with some of his own, to make a down payment on a piece of property in California, for which he paid $900,000. Stephen sold this property in September 2000, at which time Olga’s interest in the property had appreciated to $285,000. With the proceeds of that sale, Stephen purchased another piece of property for $1,600,000; the property produces over $80,000 in annual income. At the time of Olga’s death, her interest in that property was $346,000.
After Olga’s death, Marc returned Olga’s $140,000 investment to her estate. However, Stephen did not return Olga’s original investment or the appreciated amount. As justification for keeping the money, he produced a handwritten letter Olga had sent to him:
“Mrs. Olga L. Porter
Black Warrior Farms
Gallion, AL 36742
“September 26, 2000
“Dear Steve—
“Just a note to let you know I appreciate your investing the money for me and know you will take care of it for me—
“However, should any thing happen to me I want you to keep the balance for all you have done for me in the past—
“Will check with you after October 7th—
“My love to all,
“Olga Porter”

The reference to October 7 apparently relates to a cruise she was taking between September 26 and October 7, 2000. Apparently no party contests the validity or genuineness of the letter. However, the appellees argue that Olga’s phrasing “should anything happen to me” related only to the cruise and not to anything occurring after that.

Olga’s will was probated in Jefferson County, and the estate was distributed as directed. Stephen had executed a disclaimer of his share of the estate, so his 1/7 share was divided equally among his three children, Donald, Christopher, and Ashley.

In January 2002 Olga’s children, including Stephen, formed a limited liability company known as Black Warrior Farms, L.L.C., for the purpose of depositing, holding, and liquidating property and funds disbursed from the estate. Each of Olga’s children is a member of Black Warrior Farms, except that because Stephen has disclaimed his 1/7 interest in the estate, Stephen’s three children each hold a 1/21 interest in Black Warrior Farms. Marc serves as the managing member of Black Warrior Farms.

In January 2004, the funds held by Black Warrior Farms were distributed. Stephen’s three children each received $23,492.25, representing an amount less than their 1/21 share because of Stephen’s alleged failure to provide a full accounting of his stewardship of the Porter Family Trust and his refusal to pay into Olga’s estate the money Olga had entrusted to him for investment. For the same reasons, no distribution was made to Stephen.

On April 9, 2004, Black Warrior Farms and Marc sued Stephen, alleging that Stephen had not returned to the estate the $160,000 Olga had given him and that an accounting was necessary to determine the amount to which each of the beneficiaries is entitled under Olga’s will and under the Porter Family Trust. Black Warrior Farms and Marc also alleged that Stephen had failed to provide a full accounting of his stewardship of the cash account he managed as cotrustee of the Porter Family Trust established by his father. They asked the trial court to enter a judgment declaring the amount, if any, Black Warri- or Farms should pay Stephen and the amount in damages and costs to which Black Warrior Farms and Marc are entitled in the resolution of this matter and granting Black Warrior Farms and Marc such other, further, or different relief as the court may deem appropriate.

In his answer, Stephen responded that the September 26, 2000, letter from Olga entitled him to keep the $160,000 and that the transfer of $9,199.83 from the Porter Family Trust to his personal account was justified and necessary to pay attorney fees related to this action. Stephen’s children intervened, seeking to obtain distributions they claimed were due them from Black Warrior Farms. Stephen’s other brothers and sisters joined Marc and Black Warrior Farms as plaintiffs seeking to recover from Stephen an amount equal to the appreciated amount of the $160,000 Olga had given to Stephen to invest.

On December 21, 2005, the trial court issued its order. The court found that Stephen had breached his fiduciary duty as cotrustee of the Porter Family Trust by treating trust moneys as personal funds and by not disclosing relevant information requested by Marc, as cotrustee, and other beneficiaries of the trust. The court held that Stephen’s share of the distribution of funds from Black Warrior Farms should be reduced $9,199.83 because Stephen had wrongfully transferred trust funds to his own account after the Porter Family Trust was terminated. The court ruled that Stephen’s claim that the transfer of $9,199.83 from the Porter Family Trust to his personal account to pay attorney fees was an appropriate use of trust funds was unjustified. The trial court further held that at the time of her death the value of the money Olga had entrusted to Stephen was $346,000 and further stated:

“[Stephen’s] argument that at his mother’s death her interest passed to him by virtue of a letter written to him in September 2000 is without merit. A reasonable interpretation of the letter is that it expressed her wishes to deal with the money held by each son if she did not return from a cruise on which she was embarking. She did return and the letter has no effect. [Stephen’s] argument that the letter had testamentary effect which gave him the right to keep the money at her death the following June is without merit. The letter does not meet the standards of a will or codicil under the law of the State of Alabama where Mrs. Porter resided and penned the letter. Accordingly it is not to be given testamentary effect and the $346,000.00 value of her investment was due to be considered as part of her Estate.”

After considering the amounts Stephen owed Black Warrior Farms, the Porter Family Trust, and Olga’s other children and balancing those amounts against amounts due Stephen and/or his children, the trial court ruled that Black Warrior Farms and Stephen’s brothers and sisters were entitled to recover from Stephen $166,799.83, plus costs and expenses including attorney fees, the amounts of those costs and expenses to be determined later. Stephen and his children appealed. Because their positions and interests on this appeal are identical, Stephen and his children will be referred to collectively as “Stephen.”

II.Standard of Review

Stephen contends that the standard of review should be de novo because, he says, the case involves issues of law; the appel-lees argue that the standard of review is whether the trial court exceeded its discretion because, they say, the case involves issues of fact.

The facts in this case are undisputed. The basic question raised in this appeal is whether Olga’s September 26, 2000, letter to Stephen constitutes a will, a codicil, or a gift. This presents a question of law; therefore, the standard of review is de novo. Duncan v. S.N., 907 So.2d 428, 430 (Ala.2005) (stating that “questions of law and the application of the law to the particular facts are to be reviewed de novo ”).

III.Issues

Stephen raises the following issues for this Court’s consideration:

(1) Whether the trial court erred in failing to apply the law of California, the state where Stephen resided, to hold that Olga’s September 26, 2000, letter to Stephen constituted a gift to Stephen of the $160,000 she had entrusted to him.
(2) Whether the trial court erred in failing to enter a judgment in favor of Stephen and his children with respect to funds from Black Warrior Farms that were withheld from Stephen or, in the case of the children, reduced rather than being distributed to Stephen and his children.

IV.Analysis

A. Olga’s Letter

Olga’s 1986 will clearly stated that her children’s indebtedness to her was to be forgiven upon her death but that any indebtedness was to be offset against the share of her estate each child was to receive. When Olga entrusted $160,000 to Stephen in 2000, it is clear that it was not a gift but was an investment that Stephen was to handle on her behalf.

Stephen and his children argue that Olga’s letter of September 21, 2000, clearly changed the status of the $160,000 Olga had given Stephen from an investment to a gift or bequest. The trial court found that the letter was not a testamentary bequest because it “does not meet the standards of a will or codicil under the law of the State of Alabama where Mrs. Porter resided and penned the letter.” Rather, the trial court said: “A reasonable interpretation of the letter is that it expressed her wishes to deal with the money held by each son if she did not return from a cruise on which she was embarking.” However, she did return. Although the trial court did not use the term causa mortis, it seems to be saying that the letter was, at most, either a gift conditioned upon Olga’s failure to return from the cruise or a gift causa mortis that became void when she returned from the cruise. In Smith v. Eshelman, 235 Ala. 588, 590, 180 So. 313, 315 (1938), this Court held that “such a gift [causa mortis ] ... is revoked by law, if he [the donor] gets well of the sickness with which he was then afflicted.” See also Coley v. Walker, 680 So.2d 352, 353 (Ala.Civ.App.1996).

As to whether Olga’s letter constituted an inter vivos gift, this Court noted in Ford v. Stinson, 679 So.2d 1104, 1105 (Ala.Civ.App.1996), the three elements that are necessary to establish an inter vivos gift: “(1) donative intent on the part of [the donor], (2) effective delivery to ... the donee, and (3) acceptance by [the donee].” Weeks v. Weeks, 557 So.2d 1216, 1219 (Ala.1989); First Alabama Bank of Montgomery v. Adams, 382 So.2d 1104, 1110-11 (Ala.1980).

The second and third elements are clearly established. Olga delivered the $160,000 to Stephen in March 2000. Stephen received, accepted, and invested the money.

The first element is more problematic. Olga did not show donative intent in March 2000 when she transferred the $160,000 to Stephen. Her purpose in transferring it to him was so that he could invest it on her behalf. The donative intent, if any, must be based on the September 26, 2000, letter. In that letter she clearly states a desire and intent that Stephen should have the money: “I want you to keep the balance for all you have done for me in the past—.” But the portion of the sentence quoted above is preceded by a subordinate clause: “should any thing happen to me.... ” This subordinate clause appears to qualify the independent clause by placing a condition on it. Furthermore, in the first paragraph of the letter Olga says: “I appreciate your investing the money for me and know you will take care of it for me” (emphasis added). The phrase “for me,” especially its second appearance where it follows a future-tense verb “will take care,” indicates that Olga contemplated continued ownership of the investment. Thus, the transfer of the $160,000 to Stephen, even after the September 2000 letter, cannot be considered an inter vivos gift, because it is conditional and to be effective only at a future time. In other words, Olga’s letter does not show the requisite donative intent.

Stephen and his children argue that if Olga’s letter does not establish a gift, it does establish a testamentary bequest and should be treated as a will or codicil to her then existing will. Clearly it does not qualify as a will or codicil under Alabama law. Alabama Code 1975, § 43-8-131, provides that a will executed in Alabama is valid only if it is signed by the testator and by at least two people who witnessed the testator signing the will. Olga signed the letter, but no one witnessed her signature. The letter, therefore, cannot constitute a will or codicil under Alabama law.

Stephen and his children then contend that because Stephen resides in California and because Olga gave him the money to invest in California real estate, California, rather than Alabama, law applies. The California Probate Code provides that “a will that does not comply with Section 6110 [requirements for a valid will] is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.” Cal. Probate Code § 6111 (West 2006).

Stephen and his children cite Alabama caselaw to the effect that property matters are governed by the law of the state in which the property is located. Hall v. Proctor, 242 Ala. 636, 642, 7 So.2d 764, 768 (1942); Phillips v. Phillips, 213 Ala. 27, 104 So. 234 (1925). But it is by no means clear that this matter is governed by California property law, because Olga did not actually own property in California. She entrusted money to Stephen, who invested it on her behalf, but when he used the money to purchase California real estate, he purchased the property in his name and his wife’s name. Olga’s name never appeared on the deed to any of the California property.

We need not, however, reach the question whether California law applies to this case, because, even assuming for the sake of argument that California law does apply and that Olga’s letter constitutes a holographic codicil to her 1986 will, it is at most a conditional codicil, effective only upon the condition that Olga not return from the cruise, which she did.

Stephen and Ms children further argue that when Stephen used Olga’s funds as a portion of the purchase price for the California real estate, a resulting trust arose in favor of Olga as beneficiary, and a resulting trust may be terminated by the beneficiary (Olga) giving her interest to the trustee (Stephen). Stephen contends:

“And this is what happened here: in her September 26, 2000 letter, Olga unconditionally surrendered her interest [in the $160,000] to Steve.”

Stephen’s and his children’s brief, p. 23.

But as we have already observed, Olga’s letter is not unconditional. Olga says in the letter that Stephen has invested the $160,000 “for [her]” and will continue to take care of it “for [her].” Stephen is to keep the balance “should any thing happen to [her].” Accordingly, we must conclude that even if Olga’s entrusting the money to Stephen constituted a resulting trust, Olga did not effectively give the money to Stephen.

We could all wish that Olga had been more explicit concerning the disposition of this property. But there are clear and legal ways to make a gift, and there are clear and legal ways to change a will or to make a new will. Olga did none of these; therefore, her 1986 will must stand as the last clear expression of her intent concerning her estate, including the $160,000 Stephen invested for her.

B. Funds of Black Warrior Farms

Stephen and his children assert that they are entitled to a credit with respect to the funds that were deducted from Stephen’s share and/or his children’s shares of the distribution of funds from Black Warrior Farms because of the money he had withheld from Olga’s estate in the belief that Olga had given it to him and because of the dispute concerning his handling of the funds in the Porter Family Trust.

Because we have ruled that Olga’s letter to Stephen did not constitute a gift or a bequest to him of the $160,000, we conclude that the trial court’s ruling that Black Warrior Farms and Stephen’s siblings properly withheld that portion of the distribution of the funds in Black Warrior Farms from Stephen and his children was correct.

In regard to the portion of the money that Black Warrior Farms withheld because of Stephen’s handling of the Porter Family Trust, Stephen has not provided this Court with a sufficient basis in fact and law to conclude that the trial court erred in its ruling. Because the trial court’s ruling is presumed correct, we must also affirm this portion of the trial court’s ruling.

V. Conclusion

The trial court’s judgment is affirmed.

AFFIRMED.

NABERS, C.J., and LYONS and SMITH, JJ., concur.

WOODALL, J., concurs in the result.

      . The complaint mentions only the $160,000; it says nothing about any appreciated value.

      . Although we do not here decide whether California law must govern this transaction, we note that the elements of an inter vivos gift are the same under California law. Yamaha Corp. of America v. State Bd. of Equalization, 73 Cal.App.4th 338, 86 Cal.Rptr.2d 362 (1999).