author: MYERS, P.J., BARNES, J.,

text:
    Wayne JAMISON, Appellant v. Gregory C. BARNES, Appellee.
    No. 2007-CA-00765-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2008.
    Rehearing Denied Feb. 24, 2009.
    Certiorari Denied May 7, 2009.

      R. Gregg Rogers, Kosciusko, attorney for appellant.
    J. Niles McNeel, Louisville, attorney for appellee.
   MYERS, P.J.,

for the Court.

¶ 1. Wayne Jamison appeals from the Noxubee County Circuit Court’s grant of Gregory Barnes’s motion for summary judgment on Jamison’s complaint for damages resulting from a highway accident. Both Jamison and Barnes filed motions for summary judgment; however, only Barnes’s was granted. Jamison argues on appeal that the trial court erred both in granting Barnes’s motion and in denying his. Finding error only in the trial court’s grant of summary judgment in favor of Barnes, we reverse and remand to the trial court for further proceedings consistent with this opinion.

FACTS

¶ 2. Jamison was seriously injured on November 5, 2005, while operating a tractor on Highway 388 in Noxubee County, Mississippi, when he was struck from behind by Barnes’s vehicle. Although the exact time of the accident is disputed, the parties and witnesses agree that the collision occurred in the evening, sometime between 5:10 p.m. and 5:25 p.m. The parties likewise dispute how much daylight remained at the time of the accident.

¶ 3. Jamison, who works on a nearby farm, was returning home after a day’s work. He had borrowed a farm tractor owned by his employer to use at his own home, and was traveling eastward at approximately fifteen to eighteen miles per hour. Barnes, on his way to work a night shift as a dredge line operator on the Tombigbee River, was traveling in the same direction at a much higher rate of speed. It is undisputed that Barnes had his lights on, and that Jamison’s tractor, although it had a rear-facing triangular reflector, did not have working lights. Barnes claimed that he was unable to see Jamison’s tractor until he was too close to stop, and that he attempted to avoid the collision by braking and moving into the left lane. At the same time, however, a vehicle driven by Reverend Tommy Temple was approaching in the westbound lane. To avoid hitting Rev. Temple’s truck, Barnes struck the left rear of Jami-son’s tractor. Barnes’s vehicle then collided with a small boat and trailer being pulled behind Rev. Temple’s truck. Neither Barnes nor Rev. Temple and his passengers were injured in the accident.

¶ 4. Jamison brought a personal injury suit against Barnes, citing negligence as the proximate cause of his injuries. Following the close of discovery, both parties moved for summary judgment. Jamison’s motion asserted that he was entitled to summary judgment as to Barnes’s negligence under White v. Miller, 513 So.2d 600 (Miss.1987), which held that when two ears are traveling in the same direction, the primary duty of avoiding collision rests with the second driver, who, in the absence of an emergency or unusual condition, is negligent as a matter of law if he runs into the car ahead. Barnes’s motion asserted that Jamison’s operation of the tractor on the highway after sunset without working lights, was negligent per se, and that Jami-son had failed to produce any evidence of Barnes’s negligence.

¶ 5. At the hearing on the dueling motions for summary judgment, the parties introduced Jamison’s deposition testimony, as well as affidavits from Barnes, Rev. Temple, and Pearlie Mae Owens, a witness who arrived on the scene several minutes after the accident. In his deposition, Ja-mison alleged that at the time of the accident, there was sufficient light remaining for Barnes to have avoided the accident. Jamison admitted, however, that had the lights on his tractor been working, he would have had them on at the time of the collision. Barnes maintained that he had been traveling within the speed limit with his lights on, but that it had been too dark to see Barnes’s tractor in time to avoid the collision.

¶ 6. Also introduced at the hearing were cell phone records from around the time of the accident, as well as United States Naval Observatory data, purportedly establishing the exact time of the accident in relation to the setting sun. Although the exact time of the accident was disputed, the parties and witnesses agreed that the collision occurred between 5:10 p.m. and 5:25 p.m. On the date of the accident, this time frame falls between sunset and the end of civil twilight, as defined by the United States Naval Observatory. Ultimately, the trial court granted Barnes’s motion for summary judgment and denied Jamison’s. It is from this decision that Jamison appeals.

STANDARD OF REVIEW

¶ 7. We review a trial court’s disposition of a motion for summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238(1110) (Miss.2007). This Court “examines all the evi-dentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979(¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the nonmoving party must be given the benefit of the doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136(¶ 5) (Miss.2005).

DISCUSSION

I. Whether the trial court erred in granting Barnes’s motion for summary judgment.

¶ 8. Barnes’s motion for summary judgment encompassed two distinct issues, so we shall address each individually.

A. Whether Jamison produced evidence creating a genuine issue of material fact as to Barnes’s negligence.

¶9. Jamison argues that he produced sufficient evidence of Barnes’s negligence to defeat summary judgment, through his own testimony and the affidavit of Owens, who came upon the accident scene several minutes after the collision. Barnes defends the trial court’s grant of summary judgment in the face of this evidence by pointing to admissions elicited from Jamison in his deposition. We shall examine the evidence and admissions in the context of the applicable law.

¶ 10. “[Mississippi] has never adopted a per se rule that the driver of the following car is negligent if he collides with the rear of a preceding vehicle.... ” White v. Miller, 513 So.2d 600, 601 (Miss.1987). Furthermore:

[T]he driver of a vehicle following along behind another, and not attempting to pass, has a duty encompassing four interrelated functions: he must have his vehicle under proper control, keep a proper look-out ahead, and commensurate therewith drive at a speed and sufficient distance behind the preceding vehicle so that should the preceding vehicle stop suddenly, he can nevertheless stop his vehicle without colliding with the forward vehicle.

Id. However, where there is evidence of an emergency or unusual condition, this operates as a “non-rule” that presents a jury question as to whether the circumstances rise to the level of emergency or abnormal condition. Id. at 602 n. 3.

¶ 11. In addition to the special rule for rear-end collisions propounded in White, our law more generally imposes on a driver an “absolute duty of seeing what he should have seen” and requires drivers to “keep a proper lookout and be[ ] on alert for vehicles, objects and persons ahead in the highway.” Dennis v. Bolden, 606 So.2d 111, 113-14 (Miss.1992). Furthermore, a driver “is also required to have his car under proper control, to be on the alert on the highway, and avoid striking plain objects.” Id. at 114. To make a prima facie case of Barnes’s negligence, Jamison was required only to show that Barnes should have seen the tractor in time to avoid or mitigate the collision.

¶ 12. Barnes argues that this case presents a scenario recognized by the supreme court as illustrative of an emergency or abnormal condition — that he was unable to avoid the collision because he suddenly came upon a slow-moving vehicle traveling without lights in darkness. See White, 513 So.2d at 602 n. 3. Barnes asserts in his testimony that he abided by all the rules of the road, had his vehicle under proper control, was keeping a proper lookout, and was not speeding was not contradicted in the record. Jamison, however, argues that there is a genuine issue of fact as to whether or not it was too dark for Barnes to have avoided the collision. Jamison points to his own deposition testimony, where he consistently described the light remaining at the time of the accident as sufficient for Barnes to have avoided the collision:

Q. All right. Now you said that you got off at five and you started out, and so what time do you say the accident happened, would you say, Mr. Jamison?
A. At least it would have been five — I’d say 5:10 or fifteen. Somewhere like — like that.
Q. All right. At least — at least that time.
A. Yes. At least that time.
Q. And would you say it could have been even later?
A. No, sir. Because — I mean, good as — I can get out there on the road — you know, and go down there late at evening on a tractor, and I can see until dark, but it wasn’t dark. It was coming — it was — it was late.
Q. Okay.
A. But you could still see without lights.

Jamison subsequently testified:

Q. Now, you say it was still sort of light.
A. Yes.
Q. Tell me exactly how much light you say there was at the time of day on November the 5th.
A. Closest I can — can say, it got — had to be about forty-five minutes.
Q. Well, would you say it was dusk dark?
A. Well, no, sir. It wasn’t dusk dark, but it was pretty close to dusk dark.

And finally:

Q. All right. Let me go back to your description of how dark it was. Just tell me in your own words how dark it was. I don’t want to put words in your mouth. You just tell me.
A. Well, I — I couldn’t say exactly how dark it was because, really, I wasn’t — I knowed [sic] it wasn’t dark that you couldn’t see down the whole highway for I could see down the highway without any problem.
Q. Okay. Was the sun starting to go down?
A. Yes, sir. The sun started going down. It did that when I was leaving — leaving off my job.

Jamison also cites the affidavit of Owens, who swore that she came upon the scene approximately five minutes after the accident and stated, “At the time of the accident, you could still see where you were going without the need for headlights. We were able to see the accident scene well before we got there.” Barnes argues that this evidence is contradicted by Jamison’s own deposition testimony. In particular, he points to two exchanges, which we shall examine in detail.

¶ 13. First, Barnes cites to an exchange from Jamison’s deposition where he asserts that Jamison failed to attribute any negligent act to Barnes. Jamison testified that he was not “able to say” that Barnes was speeding, not paying attention to what was in front of him, or driving recklessly. When pressed to explain why Barnes was responsible for the accident, Jamison stated that he could not answer and that he did not understand the question.

¶ 14. From our review of the record, this argument is without merit. Jamison was struck from behind, and he explained that he first saw Barnes’s vehicle only a few moments before the collision. Jami-son was not in a position to observe Barnes’s driving, and at any rate, he was not required to personally witness a negligent act of Barnes. Our law allows Jami-son to prove Barnes’s negligence through circumstantial evidence — that the conditions were such that Barnes should have seen Jamison’s tractor in time to avoid the collision. While we might think of this as intuitive, Jamison is a layman who has worked as a farmhand for more than fifty years. His claim does not fail because he was unable to articulate a legal theory at his deposition.

¶ 15. Second, Barnes asserts that Ja-mison’s deposition was internally inconsistent because Jamison admitted that, had the lights on his tractor been working, he would have had them on at the time of the collision. Barnes argues that this contradiction precludes Jamison from now arguing that the remaining daylight was sufficient for Barnes to have avoided or mitigated the accident.

¶ 16. We do not find the two statements to be contradictory, as one need not wait until it is too dark to see to turn on one’s lights. See Miss.Code Ann. § 63-7-11 (Rev.2004) (lights generally required “when there is not sufficient light to render clearly discernible any person on the highway at a distance of five hundred feed ahead” (emphasis added)). Our law also generally requires a driver to operate his vehicle with lights on from the time of “sunset,” even though “complete darkness” does not occur until some time after the end of “civil twilight,” a span of almost half an hour on the day of the accident. See id. It is undisputed that the accident occurred some time after “sunset” but before “complete darkness.” Furthermore, lights may be used by cautious drivers even when not required by law, and the threshold for when this is prudent is a matter of personal judgment and opinion, rather than concrete fact. Because lights are often used or required when visibility is nonetheless sufficient to avoid a collision like the one in the instant case, Jamison’s admission that he would have had his lights on, had they been working, is not an admission that it was too dark for Barnes to have seen the tractor in time to avoid the accident.

¶ 17. Even if, as the dissent argues, Jamison’s deposition testimony were internally inconsistent on the sufficiency of light remaining, the trial court would nonetheless have erred in granting summary judgment to Barnes. Contradictory statements by a witness go to the weight and credibility of that witnesses’s testimony, not its sufficiency, and a summary judgment motion does not place the trial court in the role of weighing testimony and determining the credibility of witnesses. Giles v. Brown, 962 So.2d 612, 617-18(¶ 20) (Miss.Ct.App.2006) (citing Stegall v. WTWV, Inc., 609 So.2d 348, 352-53 (Miss.1992)). The dissent is correct to point out, however, that this rule is not without exceptions. One of those exceptions prevents a party from defeating summary judgment with an affidavit of a witness that contradicts facts asserted in that witness’s prior deposition testimony, unless the affidavit explains the discrepancy. Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss.1989). The instant case, however, is distinguishable, and the exception discussed in Foldes does not apply to either Owens’s affidavit or Jamison’s deposition testimony.

¶ 18. As to Owens’s affidavit, Owens had not been previously deposed. The dissent argues that her affidavit should not be considered because it conflicts, not with her own prior testimony, but with Jami-son’s. The exception as stated by our supreme court simply does not include an affidavit that is contradicted by the deposition of a different witness. Additionally, Owens’s affidavit and Jamison’s deposition testimony do not contradict each other because they do not speak to the same facts. Jamison did not testify that his tractor could not have been seen by other drivers without its lights on; he said the lights would have made it easier for other drivers to see him. Owens, however, offered that there was still sufficient light to see without the use of lights.

¶ 19. As to Jamison’s own testimony, as we have explained above, it is not inconsistent. Even if we were to assume that it was inconsistent, the Foldes exception nonetheless does not apply to internal inconsistencies in one deposition, but applies only to cases where a deposition is later contradicted by an affidavit intended to defeat summary judgment. In fact, one of the Fifth Circuit cases cited by the supreme court in adopting this rule embraced the same distinction. See Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894-95 (5th Cir.1980) (“Thus, the alleged inconsistency created by the affidavit existed within the deposition itself. Accordingly, the issue ... was appropriately raised by the deposition even without consideration of the affidavit.” (footnote omitted)).

¶ 20. Jamison’s deposition testimony and Owens’s affidavit both describe the daylight remaining at the time of the accident as sufficient for Barnes to have seen Jamison’s tractor in time to avoid the collision. Jamison also testified that the road was straight and that Barnes’s view was unobstructed, and it is uncontroverted that Jamison’s tractor was equipped with a large, reflective triangle facing to the rear and that Barnes was operating his vehicle with its headlights on. Giving Jamison the benefit of all reasonable inferences from these facts, there is a genuine issue of material fact as to whether Barnes was negligent because he should have seen the tractor in time to avoid or mitigate the accident. The trial court erred in granting summary judgment to Barnes on this issue.

B. Whether Jamison’s operation of the tractor was negligent per se.

¶ 21. Barnes’s summary judgment motion also alleged that Jamison was negligent per se for violating two provisions of the Uniform Highway Traffic Regulation Law. First, we would note that even if Jamison were negligent per se, it would not bar his recovery if he could show that Barnes was also negligent, under the familiar doctrine of comparative negligence. See Coho Res., Inc. v. Chapman, 913 So.2d 899, 911(¶ 36) (Miss.2005). Even if comparative negligence were taken off the table, Mississippi Code Annotated section 63-7-81 (Rev.2004) further provides that, “Nothing in this chapter shall be so construed as to curtail or abridge the right of any person to prosecute a civil suit for damages by reason of injuries to person or property resulting from the negligent use of the highways by any motor vehicle, or its owner.... ” Had Jamison been negligent per se under this chapter, it would not preclude his recovery as long as he could show Barnes was also negligent.

¶ 22. The first statutory provision Jami-son is said to have violated is Mississippi Code Annotated section 63-7-11 (Rev. 2004), which requires that most vehicles operating on the highways after sunset use headlights and taillights, and section 63-7-13(3) (Rev.2004), which requires that “[e]very motor vehicle, trailer, semitrailer, pole trailer and any other vehicle which is being drawn in a train of vehicles shall be equipped with at least one ... rear lamp....” These requirements, however, did not apply to Jamison’s tractor in the instant case, as Mississippi Code Annotated section 63-7-9 (Rev.2004) provides that, “Except as may otherwise be provided in this chapter, the provisions of this chapter with respect to equipment on vehicles shall not apply to implements of husbandry, road machinery, road rollers, or farm tractors.”

¶ 23. The record shows that the vehicle Jamison was operating at the time of the collision, an International Harvester model 986 tractor employed for agricultural purposes, would qualify as either an “implement of husbandry” or a “farm tractor,” and is thus generally exempted from the equipment requirements of the chapter. This exemption extends to the lighting requirements of sections 63-7-11 and 63-7-13(3). See Williams ex rel. Dixon v. Thude, 180 Ariz. 531, 885 P.2d 1096, 1099-1100 (Ct.App.1994) (implements of husbandry exempted from lighting requirements); Se. Liquid Fertilizer Co. v. Mock, 92 Ga.App. 270, 88 S.E.2d 531, 532 (Ct.App.1955) (farm tractors exempted from lighting requirements unless the tractor falls under a Georgia-specific addition to the uniform act, which required tractors originally equipped with lights to use them); Thomas v. Johnson, 181 So.2d 487, 488-89 (La.Ct.App.1965) (implements of husbandry exempted from equipment requirements); Bernhard v. Lincoln County, 150 Mont. 557, 437 P.2d 377, 379 (1968) (road machinery exempted from lighting requirements); Griffin Grocery Co. v. Logan, 309 P.2d 1074, 1077 (Okla.1957) (road machinery exempted from lighting requirements); Cook v. Caterpillar, Inc., 849 S.W.2d 434, 438-439 (Tex.App.1993) (road machinery exempted from turn signal requirement); Western Packing Co. v. Visser, 11 Wash.App. 149, 521 P.2d 939, 942-43 (1974) (implements of husbandry exempted from lighting requirements).

¶ 24. The second statutory provision Jamison is said to have violated prohibits the non-emergency operation of certain slow-moving vehicles after sunset, when those vehicles are equipped with reflective tape in lieu of a standard triangular slow-moving-vehicle emblem. See Miss.Code Ann. § 68-7-91 (Rev.2004) (“Except in cases of emergency, vehicles subject to the provisions of this section that display the reflectorized tape shall not be operated upon any highway ... from sunset to sunrise.” (emphasis added)). It is clear from the record that Jamison’s tractor was equipped with a triangular reflector, not reflectorized tape, and thus would not be prohibited from operating on the highway after sunset even if this section applied. We need not address whether farm tractors are subject to the specific equipment requirements for slow-moving vehicles under section 68-7-91.

¶ 25. While a jury might find Jamison’s operation of the tractor under these circumstances to be negligent, the trial court erred in finding it to be negligent per se.

II. Whether the trial court erred in denying Jamison’s motion for summary judgment.

¶ 26. Jamison also argues that the trial court erred in denying his own motion for summary judgment. We find this argument to be without merit. For the reasons discussed above, Barnes’s affidavit, which maintained that it was too dark for him to have seen Jamison’s unlit tractor in time to avoid the collision, was sufficient to create a genuine issue of material fact as to Barnes’s negligence under the circumstances. Because the evidence is conflicting, the trial court did not err in refusing to find Barnes negligent as a matter of law.

¶ 27. THE JUDGMENT OF THE CIRCUIT COURT OF NOXUBEE COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

BARNES, J.,

Dissenting:

¶ 28. In order to survive summary judgment, “[t]he non-moving party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.” Luvene v. Waldrup, 903 So.2d 745, 748(¶ 10) (Miss.2005) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213-14 (Miss.1996)). In a negligence action, the plaintiff generally has the burden of proof on the issue of causation, and must “introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough.” Herrington v. Leaf River Forest Prods., Inc., 733 So.2d 774, 777(¶ 10) (Miss.1999). After studying the record, and analyzing the evidence in the light most favorable to Jamison, I find no such evidence and, therefore, dissent.

¶ 29. On November 5, 2005, between approximately 5:10 p.m. and 5:25 p.m., Ja-mison, Barnes, and Rev. Tommy Temple were involved in a motor vehicle accident on Highway 388 in Noxubee County, Mississippi. Jamison, who works on a nearby farm, was driving his employer’s tractor in an eastward direction. Barnes, who was also driving in an eastward direction, claimed he was abiding by all of the rules of the road, including having his lights on, when he came upon Jamison’s tractor without notice. The tractor’s lights were not on. It did, however, have a large reflective triangle on the back. Barnes attempted to take evasive action to prevent hitting the tractor by braking and swerving to the left, but he was unsuccessful. Barnes hit the tractor from the rear. Rev. Temple was driving his pickup truck in a westerly direction, pulling a bass boat. After Barnes collided with Jamison, Barnes’s vehicle entered Rev. Temple’s lane and struck his bass boat. In his affidavit, Rev. Temple stated it was “definitely dark enough” that vehicle lights were needed. According to the United States Naval Observatory Astronomical data, sunset in Noxubee County for November 5, 2005, began at 4:59 p.m.

¶ 30. The evidence is thus uncontradict-ed that Barnes hit the back of Jamison’s unlit, slow-moving tractor. The three witnesses to the accident, Jamison, Barnes, and Rev. Temple, attribute no fault to Barnes. In his deposition, Jamison himself admitted that Barnes was not speeding or driving erratically. Furthermore, Jamison admits that it was dark enough that if the tractor’s headlights had been working, he would have had them on.

Q. Tell me exactly how much light you say there was at that time of day on November the 5th.
A. Closest I can ... say, it got — had to be about forty-five minutes.
Q. Well, would you say it was dusk dark?
A. Well, no, sir. It wasn’t dusk dark, but it was pretty close to dusk dark.
Q. Other vehicles on the highway had their lights on. Is that right?
A. Yes, sir.
Q. You would have had your lights on, but they didn’t work?
A. Yes, sir. Well, if I ... had had some, I could have ... had them on, but they didn’t work, like you say. Q. If they had been working, would you have probably had your lights on?
A. Yes, sir.
Q. Why would you have had your lights on if they’d been working?
A. Well, ... you watch for the next person coming and meeting you, and you let them know that you got your lights on-some behind you, some in front of you.
Q. Okay. Do you think it was dark enough or sunset enough or dusk enough that you needed your lights ... if they had been operating?
A. Yes, sir.
Q. But you ... couldn’t turn them on because they ... didn’t work?
A. Yes, sir.
Q. But do you think that ... you needed them on since it was close enough to dusk, if they had been operating?
A. Uh — yes. If I’d had them, I could have ... had them on.
Q. And ... would you have had them on?
A. Yes, sir.

Jamison also noted Barnes’s headlights were on. In Barnes’s affidavit, he recounts the accident as follows:

My headlights were on as it was almost dark. .Suddenly, I saw a slow moving tractor in my lane traveling in the same direction. There were no lights on the tractor and I was almost upon it before I noticed the tractor.... I was obeying all rules of the road, was not speeding, and was attentive to the road in front of me.

Rev. Temple, whose vehicle was pulling a bass boat which Barnes struck trying to evade Jamison’s tractor, stated in his affidavit that:

I was not able to estimate the speed for ... [Barnes’s] vehicle but I have no reason to believe the vehicle approaching behind the tractor was speeding.... I did not observe any improper driving on the vehicle approaching behind the tractor.... In my opinion it was too dark for the tractor to be on the highway without lights operating.

Moreover, the official accident report states there was no apparent improper driving by Barnes. In the absence of any proof of negligence on Barnes’s part, there is no factual dispute that needs to be presented to a jury.

¶ 31. The majority notes that Barnes did have certain duties specific to rear-end collisions as articulated in White v. Miller, 513 So.2d 600, 601 (Miss.1987). The defendant has a duty to (1) keep his vehicle under proper control, (2) keep a proper look-out ahead, and (3) drive at a speed with sufficient distance behind the preceding vehicle so that should the preceding vehicle stop suddenly, he can nevertheless stop his vehicle without colliding with the forward vehicle. The Mississippi Supreme Court noted in White that it had “never adopted a per se rule that the driver of [a] following car is negligent if he collides with the rear of a preceding vehicle.... ” Id. The White court cited Miller v. Cody, 41 Wash.2d 775, 252 P.2d 303 (1953) for the rule that “[w]here two cars are traveling in the same direction, the primary duty of avoiding a collision rests with the following driver and in the absence of an emergency or unusual conditions” he is negligent as a matter of law if he runs into the car ahead. The White court referred to this proposition as a “non-rule” that allows for case-by-case decisions. Id. at 602 n. 3. An emergency situation . expressly recognized in White, and similar to the instant facts, is where the defendant unexpectedly encounters a slow-moving vehicle traveling without lights at night. Id. (citing Szarapski v. Joaquin, 139 Cal.App.2d 27, 292 P.2d 959, 962 (1956)).

¶ 32. I find no evidence of negligence on the part of Barnes; his uncontradicted affidavit reflects that he maintained his duty of care pursuant to the factors outlined in White. The record indicates Barnes was abiding by the rules of the road, keeping his vehicle in control, maintaining a proper lookout, not speeding, and not following the tractor in close proximity, when he suddenly came upon it. Also, the fact that the tractor did not have its lights on could present an abnormal or emergency condition, as articulated in White, which further precludes Barnes’s fault. In White, the Mississippi Supreme Court stated that “the jury can decide whether or not the circumstances rise to the level of emergency or abnormal condition.” Id. at 602 n. 3. However, in this case, where the only evidence of negligence is on the part of Jamison, I am unable to find that a jury issue has been created.

¶ 38. The majority states that “Jamison offered his testimony and that of one other witness asserting that there was still sufficient daylight left at the time of the accident for Barnes to have seen the tractor in time to avoid colliding with it.” To the contrary, Jamison admitted that it was dark enough to have needed lights; his lights were just inoperable. The only proof Jamison offered in support of this contention that there was sufficient daylight for Barnes to have avoided hitting him is the affidavit of Pearlie Mae Owens, who claimed that she came upon the scene of the accident less than five minutes after it took place. Owens stated, “you could still see where you were going without the need for headlights. We were able to see the accident scene well before we got there.” Owens’s affidavit, however, conflicts with all of the other evidence about the necessity for vehicular lights at the time of the accident. Jamison admits in his own deposition that it was dark enough to have had the tractor’s lights on if they had been working. Moreover, when there is a discrepancy between the facts of an affidavit and a previous deposition of the same witness, “the affidavit must explain such discrepancy.” Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss.1989) (citing Miller v. A.H. Robins, Inc., 766 F.2d 1102, 1104 (7th Cir.1985)). I find this rule analogous to the situation at bar, even though this case deals with two different people. In the instant case, Jamison would be precluded from presenting his own affidavit contradicting his admission that it was dark enough for his tractor’s lights to have been on. He attempts to create a genuine issue of material fact, contradicting his own testimony, by presenting the affidavit of a person who was not present at the time the accident occurred. I find that Owen’s affidavit is insufficient to overcome Jamison’s admission. Her affidavit, which fails to identify any negligence on the part of Barnes, is insufficient to create a genuine issue of material fact that he was responsible for the accident.

¶ 34. Therefore, I must dissent, as I find that Jamison has not met his burden of proof to establish the existence of a genuine issue of material fact that more likely than not the conduct of Barnes was the cause of the accident; thus, I would affirm the circuit court’s grant of summary judgment in favor of Barnes.

CARLTON, J, JOINS THIS SEPARATE OPINION.

      . Barnes's affidavit stated that he was traveling at or below the fifty-five-mile-per-hour speed limit. Rev. Temple's affidavit corroborated this, and Jamison could not say Barnes was speeding.

      . "Sunset” is defined as "conventionally refer[ring] to the times when the upper edge of the disk of the Sun is on the horizon.” "Civil twilight” ends in the evening when the center of the sun is geometrically six degrees below the horizon. Civil twilight is "the limit at which twilight illumination is sufficient, under good weather conditions, for terrestrial objects to be clearly distinguished,” although "complete darkness” does not occur until some time after the end of civil twilight. United States Naval Observatory, http://aa. usno.navy.mil/faq/docs/RST defs.php (last visited September 11, 2008). According to data from the U.S. Naval Observatory, on November 5, 2005, sunset began in Noxubee County at 4:59 p.m. and civil twilight ended at 5:25 p.m.

      . Additionally, "This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.” Miss.Code Ann. § 63-7-3 (Rev.2004).

      . The U.S. Naval Observatory conventionally defines "sunset” as the time when the upper edge of the Sun's disk is on the horizon. United States Naval Observatory, http://aa. usno.navy.mil/faq/docs/RST_defs.php# top (last visited October 9, 2008).

      . I note that White is factually dissimilar from the case at bar in that White deals with the driver of a vehicle following behind another when the vehicle in front suddenly stopped. Here, the evidence shows Barnes was not necessarily "following” Jamison's tractor, but suddenly came upon it. Nor did the tractor suddenly stop.

      . I find the issue of whether Jamison was "negligent per se” to be a “red herring”; whether or not Jamison’s conduct violated motor vehicle statutes creates no genuine issue of material fact as to whether Barnes was negligent. The majority claims the trial court based its grant of summary judgment on Ja-mison’s operation of a tractor on the highway during the prohibited hours of use; however, we find no such specification in the order; it merely stated there were no genuine issues of material fact present. While the Mississippi Legislature has not seen fit to make it a statutory violation for a slow-moving tractor to travel on Mississippi roadways after sunset without headlights or taillights functioning, as it has with the majority of vehicles, that does not mean that the conduct was not negligent. See Miss.Code Ann. § 63-7-99 (Rev.2004) (compliance with slow-moving vehicle emblem does not create prima facie case or presumption of "reasonable and ordinary care”).


source: Caselaw Access Project

author: CARLTON, J.,

license: Public Domain

text:
    Marcus D. COLE a/k/a Marcus D. Harmon, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-01930-COA.
    Court of Appeals of Mississippi.
    Nov. 18, 2008.
    Rehearing Denied Feb. 24, 2009.
    Certiorari Dismissed May 7, 2009.

      Leslie S. Lee, Rosalind Hayden Jordan, Erin Elizabeth Pridgen, attorneys for appellant.
    Office of the Attorney General by Deirdre MeCrory, attorney for appellee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. On September 27, 2007, Marcus D. Cole (“Cole”) was convicted in the Attala County Circuit Court of the felony crime of fleeing a law enforcement officer in a motor vehicle. See Mississippi Code Annotated section 97-9-72 (Rev.2006). He was sentenced to a term of five years with the Mississippi Department of Corrections (MDOC) with one year to serve and four years suspended on post-release supervision. Cole filed his motion for a judgment notwithstanding the verdict or, alternatively, a new trial on October 3, 2007. The trial court denied the motion. On October 25, 2007, Cole appealed the trial court’s denial. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of June 18, 2007, Officer Mark Gilmore of the Kosciusko Police Department was out on patrol near the Yorkshire Apartments in Kosciusko when he saw a white Lincoln leaving the apartments at a high rate of speed. He followed the vehicle onto Highway 12 to run the tag. Although he did not clock the driver’s speed, through “pacing” the vehicle by following it at a similar rate of speed, Officer Gilmore determined that the car was speeding. He called in the tag to dispatch and was told that the Lincoln’s tag was expired. Officer Gilmore then activated his blue lights and siren and attempted to pull the car over. However, upon doing so, the driver of the Lincoln fled by increasing his speed up to 95 miles per hour and running through several red lights.

¶3. The chase proceeded out of town and down Highway 12. Moments later, William Wingo (“Wingo”) approached an intersection on Highway 12. Noticing the chase, Wingo stopped short of the stop sign to stay out of the way. The driver of the Lincoln then made a sharp right turn at the stop sign where Wingo was waiting and slammed into the side of Wingo’s car. However, after the crash, the driver of the Lincoln did not stop. Instead, he continued down a dead-end dirt road and into an open field. The driver then turned off the vehicle’s headlights. Officer Gilmore testified he then beamed his squad car’s spotlights at the Lincoln. The driver of the Lincoln then turned his lights back on and drove toward Officer Gilmore. Officer Gilmore stated he had to swerve his vehicle to avoid being hit by the Lincoln. In observing the approaching Lincoln, Officer Gilmore recognized the driver to be Cole, a former high school classmate.

¶ 4. Officer Gilmore continued to pursue the Lincoln for several more miles. Then, once again, the driver of the Lincoln turned around and drove in Officer Gilmore’s direction. Officer Gilmore testified that at this point he was able to make a positive identification of Cole as the driver. However, no arrest was made that night because Officer Gilmore lost the Lincoln’s “dust trail,” thus, ending the pursuit.

¶ 5. The next day, on June 19, Cole contacted the Attala County Sheriffs Department and reported his Lincoln as stolen. Cole told Deputy Tim Nail that the last time he had seen his car was on June 15. Cole also stated that the ignition in his car was broken, so that someone would have had to have fixed the ignition in order to steal his car. Deputy Frank Smith recovered Cole’s Lincoln several days later on Highway 51 in Holmes County. The Lincoln was returned to Cole. The following day Deputy Nail went to Cole’s home and took photographs of the car, which were entered into evidence at trial. Deputy Nail testified that Cole’s vehicle “appeared to have been wrecked.” He testified that there was no evidence indicating that Cole’s car had been stolen, and the ignition appeared intact.

¶ 6. Wingo, the driver of the car that was hit on the night of the chase, also testified at trial. He stated that although he suffered no personal injuries, the wreck caused extensive damage to his vehicle. He further testified that although he did not see the driver’s face that night, he knew Cole and had seen Cole on prior occasions driving the white Lincoln that had crashed into his vehicle.

¶ 7. Cole put on an alibi defense and claimed that during the time of the police chase involving his Lincoln he was in Jackson, Mississippi visiting friends. He testified that on Tuesday, the day after the chase, he returned to his home in Kosciusko and noticed that his car was not parked in his yard where he had left it. He then reported his vehicle as being stolen.

¶ 8. Cole was indicted on September 4, 2007, for the felony crime of fleeing law enforcement in a motor vehicle under section 97-9-72. At trial, the jury found Cole guilty of the charged felony. Cole was sentenced to a term of five years in the custody of the MDOC with one year to serve and four years suspended on post-release supervision. Upon appeal, Cole alleged that the trial court erred when it: (1) failed to grant his motion for a judgment notwithstanding the verdict as the evidence was not sufficient to support a conviction of felonious fleeing and (2) failed to grant his motion for a new trial because the verdict was against the overwhelming weight of the evidence.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT COLE’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV).

¶ 9. Cole asserts that if this Court finds the jury properly determined Cole to be the driver of the Lincoln, then, the Court should find that the trial court erred in denying Cole’s motion for a JNOV. Cole argues that he should have been charged with the misdemeanor crime of fleeing from a law enforcement officer under section 97-9-72(1) instead of felonious fleeing of a law enforcement officer under section 97-9-72(2). This Court finds the trial court did not err in denying Cole’s motion for a JNOV because the evidence was sufficient for the jury to conclude that Cole was guilty beyond reasonable doubt of felonious fleeing of a law enforcement officer.

¶ 10. A motion for a JNOV challenges the sufficiency of the evidence. Montana v. State, 822 So.2d 954, 967(¶ 58) (Miss.2002). With respect to each element of the offense, the evidence is considered “in the light most favorable to the State, giving the State the benefit of all favorable inference that may be reasonably drawn from the evidence.” Id. Matters regarding the weight and credibility of the evidence are resolved by the jury. Jones v. State, 918 So.2d 1220, 1234(¶ 34) (Miss.2005) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). The Court “may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.” Id.

¶ 11. Here, Cole was charged with the felony offense of fleeing a law enforcement officer in a motor vehicle and not the misdemeanor offense. Section 97-9-72(1)-(2) provides:

(1) The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor....
(2) Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates' a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony....

¶ 12. Cole argues in his brief that he should have been charged with misdemeanor versus felonious fleeing of a police officer because “the police chase did not occur around a lot of vehicles and ... was not endangering the lives of other citizens.” He also claims that because Wingo was not injured when he crashed his Lincoln into Wingo’s car that, essentially, his driving did not constitute a reckless or willful disregard for the safety of persons or property.

¶ 13. With this in mind, we turn again to the facts of the case. According to Officer Gilmore’s testimony, on June 18, 2007, Officer Gilmore attempted to pull over a Lincoln after he had reasonable suspicion to believe the driver was speeding and after dispatch had notified him that the Lincoln’s tag was expired. The driver of the Lincoln failed to pull over, and a car chase ensued. Officer Gilmore testified that at that point, the driver of the Lincoln was speeding up to 95 miles per hour and was running stop signs within the city limits. Officer Gilmore also testified that he purposefully had to move his own vehicle out of the oncoming path of the Lincoln on at least one occasion. Moreover, the driver of the Lincoln caused a wreck when he took a sharp turn off Highway 12 and crashed into Wingo, who testified that he had purposely moved his vehicle back to get out of the way of the approaching police chase.

¶ 14. The Court finds that the above testimony could logically lead a fair-minded juror to conclude that Cole’s driving was done with a reckless and willful disregard of the safety of persons and property. In reviewing all of the above evidence in the light most favorable to the State, the Court further finds that any fair-minded juror could have found the State proved beyond a reasonable doubt, each and every element of the felony crime of fleeing a law enforcement officer in a motor vehicle. Therefore, the Court finds no error in denying Cole’s motion for a JNOV.

II. WHETHER THE GUILTY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 15. Cole argues in his appeal that “[g]iven the dark and dusty conditions of the police chase, coupled with the unexplained discrepancies regarding the expiration date of the Lincoln’s car tag, the jury gave undeserved weight to Officer Gilmore’s identification of Cole as the driver of the fleeing car.” From the record before this Court, we are unable to find that the jury’s verdict was contrary to the overwhelming weight of the evidence. Therefore, we find the trial court committed no error in denying Cole’s motion for a new trial.

¶ 16. “In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence [that] supports the verdict and will reverse only when convinced that the [trial] court has abused its discretion in failing to grant a new trial.” Montana, 822 So.2d at 967(¶ 61). This Court will overturn a verdict only when to allow it to stand would sanction an unconscionable injustice. Id.

¶ 17. Cole puts much emphasis in his brief on the fact that pictures taken of his vehicle shortly after it was recovered show that the car tag’s sticker expiration was November 2007. Thus, Cole argues that because the chase took place in June 2007, his November 2007 car tag would not have been expired at the time of the chase. Cole first took notice of this factual discrepancy during jury deliberations when the jury specifically asked whether the tag was expired at the time of the chase. Cole argues that this possible mistake of fact by Officer Gilmore puts the jury’s verdict in jeopardy. We disagree.

¶ 18. Even if Officer Gilmore had mistakenly believed Cole’s car tag to be expired, this does not automatically render the reasonable suspicion in this case defective, as long as Officer Gilmore’s reasonable suspicion was based on good faith and a reasonable basis. See Loveless v. City of Booneville, 972 So.2d 723, 730-31(¶ 18) (Miss.Ct.App.2007) (quoting Harrison v. State, 800 So.2d 1134, 1138-39(¶ 19) (Miss. 2001)). “The Mississippi Supreme Court has recognized that under reasonable circumstances an officer may stop a suspect ‘to resolve an ambiguous situation’ with less knowledge than justifies arrest, i.e. on less than probable cause.” Id. at 730 n. 10.

¶ 19. Here, Officer Gilmore testified that the driver of the Lincoln was speeding out of an apartment complex. He then called in the car tag, which dispatch notified him was expired. As a result, Officer Gilmore had more than reasonable suspicion to pull over the driver of the Lincoln for both offenses. Additionally, Cole never argued at trial that Officer Gilmore’s reasonable suspicion to pull him over was made without good faith or a reasonable basis. Therefore, Cole’s argument fails.

¶ 20. Moreover, when the jury deliberated, it had before it the testimony of, among others, Cole himself. Cole put on an alibi defense and claimed he was in Jackson, Mississippi during the time of the chase. Cole testified that when he left town for Jackson, his Lincoln was parked in his front yard and “the steering column was laying in the driver’s seat,” so that the car was inoperable. Cole also acknowledged that he keeps several pit bulls tied up in his front yard. On cross-examination, Cole agreed with the prosecutor that whoever stole his car would have needed the skills of a mechanic, who was willing to work in the presence of a pack of pit bulls, to get the car up and running. Furthermore, Cole testified that he left the keys in his car when he went out of town because he “stay [sic] in the country ... and [has] no problem with nobody [sic] stealing.”

¶ 21. Again, from the record, this Court cannot find that the jury’s guilty verdict was contrary to the overwhelming weight of the evidence. Therefore, we find that the trial court properly denied Cole’s motion for a new trial. Finding no reversible error, we affirm Cole’s conviction and sentence.

¶ 22. THE JUDGMENT OF THE AT-TALA COUNTY CIRCUIT COURT OF CONVICTION OF FELONY FLEEING OF A LAW ENFORCEMENT OFFICER IN A MOTOR VEHICLE AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FOUR YEARS SUSPENDED AND ON POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY.

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


text:
    Cedric Dewayne SILLIMAN a/k/a Cedric D. Silliman, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-CP-00140-COA.
    Court of Appeals of Mississippi.
    March 3, 2009.
    Cedric Dewayne Silliman, Appellant, pro se.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   CARLTON, J.,

for the Court.

¶ 1. Cedric Silliman pleaded guilty in the Lauderdale County Circuit Court to robbery and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections, with all fifteen of those years suspended, and five years of supervised probation. Silliman subsequently violated the terms of his probation and was ordered to serve the full fifteen-year sentence. Silliman filed a motion in the circuit court to vacate and set aside the probation revocation, which the circuit court treated as a motion for post-conviction relief. That motion was denied. Silli-man now appeals that ruling. Finding no error, we affirm the judgment of the circuit court.

FACTS

¶ 2. Silliman was indicted for the robbery of a Domino’s Pizza in January 2004. He pleaded guilty and received a fifteen-year suspended sentence along with five years of supervised probation. On June 5, 2006, Silliman’s probation officer filed a petition to revoke Silliman’s probation for numerous violations of the terms of his probation. Silliman was afforded a revocation hearing in the circuit court on September 22, 2006, to address the violations of the terms of his probation. Silliman did not retain counsel to represent him at his revocation hearing.

¶ 3. Through an agreement between the district attorney’s office and Silliman, only the following violations were included in that hearing on the petition to revoke probation: (1) driving with an expired driver’s license, (2) driving with no driver’s license on two occasions, (3) two speeding violations, and (4) disregard of a traffic device. Furthermore, the district attorney alleged that Silliman had tested positive for marijuana in January 2005, and he had failed to pay the required court-ordered fines and court costs associated with his robbery conviction. There were several other violations that the district attorney chose not to pursue, including possession of marijuana, felony driving under the influence, and possession of a firearm by a felon.

¶ 4. The circuit judge found that Silliman had violated the terms of his probation by committing the traffic violations and testing positive for marijuana. He revoked Silliman’s probation and ordered him to serve the original suspended sentence of fifteen years.

¶ 5. Silliman raises three issues for our review. First, he argues that the circuit court abused its discretion in failing to appoint counsel to represent him at his revocation hearing. Second, Silliman argues that the State did not offer actual proof that he had violated the terms of his probation. Third, Silliman argues that the circuit court found that he had violated the terms of his probation simply by his failure to pay his court costs and restitution. We find no error and affirm.

DISCUSSION

¶ 6. “In reviewing a trial court’s decision to deny a motion for post-conviction relief the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). However, questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

I. Whether the circuit court erred by not appointing counsel for the revocation hearing.

¶ 7. Silliman argues that the circuit court erred by not appointing counsel to represent him during his revocation hearing and that the circuit court did not inform him that he had a right to be represented by counsel, thereby violating his due process rights. Silliman argues that “at no time did the court make any inquiry as to whether he could afford to hire prive [sic] counsel or whether he wanted the court’s [sic] to appoint counsel for him.”

¶ 8. Silliman’s argument fads, however, as the Mississippi Supreme Court has held that probationers do not necessarily have a right to be represented by counsel at probation revocation hearings. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990) (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). The court should appoint counsel for probationers when the issues relevant to the revocation hearing are complex or difficult to develop. Id. (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Silliman never requested court-appointed counsel. Furthermore, the issues discussed at his revocation hearing were not difficult or complex. In fact, Silliman admitted at the hearing that he had committed the violations charged in the petition to revoke his probation. Therefore, this issue is without merit.

II. Whether the State proved that Silliman violated the terms of his probation.

¶ 9. In his second assignment of error, Silliman argues that the State did not present any evidence that he had, in fact, committed the alleged probation violations. However, probation may be revoked based “upon a showing that the defendant ‘more likely than not’ violated the terms of probation.” Metcalf v. State, 904 So.2d 1222, 1225(¶10) (Miss.Ct.App.2004) (citing Wallace v. State, 607 So.2d 1184, 1189-90 (Miss.1992)). Silliman admitted at the hearing that he had committed the probation violations. The circuit judge did not err in finding that Silliman violated the terms of his probation. This issue is without merit.

III. Whether the trial court erred by revoking Silliman’s probation based on his failure to pay court-ordered fines and fees.

¶ 10. Finally, Silliman alleges that his probation was revoked based solely on his failure to pay his court-ordered fines and fees. Silliman is correct in his assertion that the circuit court should not revoke probation based solely on a probationer’s failure to pay fines and fees without first inquiring into the reasons he failed to pay his fines and fees. Mayfield v. State, 822 So.2d 332, 335(¶ 15) (Miss.Ct.App.2002) (citing Bearden v. Georgia, 461 U.S. 660, 667-68, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)). The circuit judge did inquire about Silliman’s failure to pay the fines. Silliman responded that he was not making enough money to cover living expenses for himself and his child, so he had not made any effort to pay the fines.

¶ 11. However, the record is clear that Silliman’s probation was not revoked solely because of his unpaid court-ordered fines and court fees. Silliman admitted to committing several probation violations. This issue is without merit.

¶ 12. We find no merit to Silliman’s assignments of error. Therefore, we affirm the judgment of the circuit court.

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

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


author: GRIFFIS, J.,

text:
    RANKIN GROUP, INC., Appellant v. CITY OF RICHLAND, Mississippi, Appellee.
    No. 2007-CA-02259-COA.
    Court of Appeals of Mississippi.
    March 17, 2009.
    Samuel D. Joiner Jr., attorney for appellant.
    Stephen W. Rimmer, Jackson, attorney for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. The Rankin Group, Inc. (“Rankin”) petitioned the Circuit Court of Rankin County to issue a writ of mandamus to require the City of Richland (“the City”) to sign and file a bill of exceptions. The circuit court dismissed the petition for the writ of mandamus, because Rankin did not appeal the City’s decision within ten days as required under Mississippi Code Annotated section 11-51-75 (Rev.2002). Rankin now appeals the dismissal and argues that: (1) the time for appeal was incorrectly determined to run from the date the board adjourned the meeting — not the date the minutes were signed, and (2) the City is estopped from labeling this property a mobile home because the City has taxed it as a homestead since 1965. We find no error and affirm.

FACTS

¶2. Rankin entered into an agreement to purchase the disputed property in June 2007. At this time, George Sanders, Rankin’s president met with the City’s building official, Jeff Sims, to discuss the property. Sims instructed Sanders to draft a proposal for improvements to the property for discussion at the City’s next meeting. Sanders attended that next meeting, but the issue of his property was tabled until the City’s following meeting.

¶ 3. The City held its regularly scheduled meeting on September 4, 2007, and recessed this meeting until September 11, 2007, at which time the meeting was adjourned. Rankin was not represented during either session. During this two-session meeting, the decision was made to demolish the structure owned by Rankin under the City’s authority to remove dilapidated buildings in an effort to clean private property pursuant to Mississippi Code Annotated section 21-19-11 (Rev. 2007). The minutes from this two-session meeting were signed by a majority of the members of the governing body of the City on September 18, 2007. The City had published a notice in the local newspaper for two consecutive weeks as required under section 21-19-11 if the property owner or his address is unknown.

¶ 4. On September 27, 2007, Rankin presented the City with a bill of exceptions to sign. However, the City refused to sign it. On October 12, 2007, Rankin petitioned the circuit court to issue a writ of mandamus to require the City to sign the bill of exceptions. The City subsequently filed a motion to dismiss. The circuit court granted the motion to dismiss Rankin’s petition because the petition was filed after the ten-day time period for appeal had passed. Because of the procedural bar, the circuit court declined to hear Rankin’s argument on the merits that this structure is actually real property — not a mobile home — and notice was improper.

STANDARD OF REVIEW

¶ 5. Appellate courts “review! ] errors of law, which include summary judgments and motions to dismiss, de novo.” Aldridge v. West, 929 So.2d 298, 300(¶ 6) (Miss.2006) (quoting City of Jackson v. Perry, 764 So.2d 373, 376(¶ 9) (Miss.2000)).

ANALYSIS

1. Was the time for appeal incorrectly determined to run from the date the board adjourned the meeting — not the date the minutes were signed?

¶ 6. Rankin argues that the City’s decision was not final and appealable until September 18, 2007, when the minutes of the September 4, 2007, and September 11, 2007, meetings were adopted and approved by signing. The City responds that the ten-day period for appeal begins when the meeting, where the City rendered its decision, is adjourned.

¶ 7. “This Court must apply the plain meaning of unambiguous statutes.” Ameristar Casino Vicksburg, Inc. v. Duckworth, 990 So.2d 758, 760(¶ 9) (Miss.2008) (citing Richmond v. City of Corinth, 816 So.2d 373, 377-78(¶ 15) (Miss.2002)).

¶ 8. We begin our inquiry by looking at the plain meaning of section 11-51-75, which provides in pertinent part:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.

(Emphasis added). The City argues that a decision is rendered and the time for appeal begins to run once a meeting is adjourned — when a motion to adjourn is made, seconded, and approved by the majority of the board. Rankin argues that under Mississippi Code Annotated section 21-15-33 (Rev.2007), the City does not render a decision until the minutes of a meeting are signed. Once the minutes are signed and the meeting adjourned, then the ten-day time period for appeal begins to run.

¶ 9. Rankin cites South Central Turf, Inc. v. City of Jackson, 526 So.2d 558, 562-63 (Miss.1988) as grounds that a matter is not finally decided and appealable until the minutes of the meeting are signed. In South Central Turf, Inc., the supreme court was not required to decide whether the time for appeal began at the adjournment of the meeting or upon the signing of the minutes from that meeting, because the appeal was filed more than ten days after the minutes were signed. Id. at 562.

¶ 10. We look to section 21-15-33 to determine the effect and validity of municipal minutes. The statute states in part that:

The minutes of every municipality must be adopted and approved by a majority of all the members of the governing body of the municipality at the next regular meeting or within thirty (30) days of the meeting thereof, whichever occurs first. Upon such approval, said minutes shall have the legal effect of being valid from and after the date of the meeting.

Miss.Code Ann. § 21-15-33. The minutes must be approved at the next meeting or within thirty days, and once approved, the “minutes shall have the legal effect of being valid from and after the date of the meeting.” Id. (emphasis added). Rankin argues that meeting means the meeting when the minutes are approved, not the actual meeting addressed by the minutes. However, this interpretation is inconsistent with the plain language of the statute.

¶ 11. Following Rankin’s logic, if the City did not hold a regularly scheduled meeting within thirty days, but it approved the minutes within thirty days of the original meeting as required by section 21-15-33, then the minutes would have no legal effect. In this situation, there would be no meeting within Rankin’s interpretation of section 21-15-33 to mark the legal effect of the minutes. Rankin’s argument is without merit.

¶ 12. The ten-day time period for appeal began when the City adjourned the meeting on September 11, 2007, after making a decision about the property. Finding no error, we affirm.

2. Is the City estopped from labeling this structure a mobile home because the City has taxed it as a homestead since 1965?

¶ 13. Rankin argues that the City is estopped from removing this structure as a mobile home under section 21-19-11, because the City has taxed this property as a homestead — not a mobile home — since 1965. The City argues that the timeliness of the appeal is dispositive, and the underlying merits are irrelevant.

¶ 14. The supreme court has held that “[w]hen an appeal and bill [of] exceptions are not filed within the prescribed 10 days from the day of adjournment of the board of supervisors^] session, neither the circuit court nor [the appellate court] has jurisdiction [to] consider the appeal.” House v. Honea, 799 So.2d 882, 883(¶ 9) (Miss.2001) (citing Moore v. Sanders, 569 So.2d 1148, 1150 (Miss.1990)). As discussed, Rankin’s appeal was filed outside the ten-day period allowed by section 11-51-75.

¶ 15. Rankin’s failure to file the appeal within ten days determines the outcome of this appeal. We affirm the circuit court’s dismissal based on its lack of jurisdiction due to Rankin’s failure to timely appeal.

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

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

      . Under Mississippi Code Annotated section 21-19-20 (Supp.2008), the real property statute, the property owner is entitled to thirty-days notice and a hearing in circuit court.


author: KING, C.J.,

text:
    Antonio MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-CP-01548-COA.
    Court of Appeals of Mississippi.
    March 24, 2009.
    Antonio Moore, Appellant, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. Antonio Moore filed a petition for post-conviction relief in June 2003, which the trial court denied in August 2003. Four years later, Moore filed a motion for an out-of-time appeal, which the trial court granted. Moore appeals to this Court, raising three issues:

I. Whether Moore’s indictment was presented to the grand jury;
II. Whether Moore received ineffective assistance of counsel; and
III. Whether Moore was entitled to receive a copy of his trial transcript.

We find that the trial court lacked authority to grant Moore’s motion for an out-of-time appeal, and we decline to allow Moore to proceed with this appeal. Therefore, we hereby dismiss Moore’s appeal.

FACTS AND PROCEDURAL HISTORY

¶2. On November 7, 2000, Moore was indicted for two counts of the sale of cocaine. On February 27, 2002, Moore was convicted of Count I, sale of cocaine, and sentenced to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay a $5,000 fine. Moore was also convicted of Count II, sale of cocaine, and sentenced to serve ten years in the custody of the MDOC, with the sentence to run consecutively to the sentence imposed in Count I, and he was ordered to pay a $5,000 fine.

¶ 3. On May 9, 2001, Moore was indicted for possession of cocaine. On December 5, 2002, Moore pled guilty to this charge, and he was sentenced to serve three years in the custody of the MDOC, with this sentence to run consecutively to his previously imposed sentences.

¶4. On June 19, 2003, Moore filed one petition for post-conviction relief in which he attacked both his February 2002 conviction and his December 2002 guilty plea. In his petition for post-conviction relief, Moore argued that: all three of the charges against him should have been combined into one trial; the trial court should have given him one sentence; and defense counsel failed to request that Moore receive concurrent sentences. On August 26, 2003, the trial court found that Moore’s petition for post-conviction relief was without merit and dismissed the petition.

¶ 5. Four years later, on September 10, 2007, Moore filed a motion for an out-of-time appeal, which the trial court granted. Now, Moore raises three issues before this Court; two of which Moore failed to raise before the trial court: (1) whether Moore’s indictment was presented to the grand jury; (2) whether Moore received ineffective assistance of counsel; and (3) whether Moore was entitled to receive a copy of his trial transcript.

ANALYSIS

¶ 6. The timeliness of Moore’s out-of-time notice of appeal was not raised by either party. However, as a preliminary matter, we must first address whether the trial court erred by granting Moore’s request for an out-of-time appeal.

¶ 7. Mississippi Rule of Appellate Procedure 4(a) provides that an appeal shall be filed within thirty days of the date of entry of the judgment being appealed from. Rule 4(h) gives the trial court the authority to re-open the time for an appeal in the event that a party did not receive notice of the entry of judgment. M.R.A.P. 4(h). However, “[o]ur appellate courts have opined that a trial judge probably does not have the authority to grant an out-of-time appeal later than 180 days after the entry of judgment.” Parker v. State, 921 So.2d 397, 399(5) (Miss.Ct.App.2006) (citing McGruder v. State, 886 So.2d 1, 2(4) (Miss.2003)).

¶ 8. The trial court dismissed Moore’s petition for post-conviction relief on August 26, 2003, and Moore failed to appeal this judgment within thirty days. Four years later, Moore requested that the trial court grant him an out-of-time appeal. Moore did not contend that he failed to receive notice of the entry of judgment. However, the trial court granted Moore’s request. We find that the trial court lacked the authority to grant Moore’s request for an out-of-time appeal because Moore’s request was filed more than 180 days after the dismissal of his petition for post-conviction relief. Now, we must determine if this Court should allow Moore to proceed with his out-of-time appeal.

¶ 9. Mississippi Rule of Appellate Procedure 2(c) allows this Court to suspend the thirty-day requirement of Rule 4(a) for good cause shown. See McGruder, 886 So.2d at 2(4); see also Jefferson v. State, 958 So.2d 1276, 1278(6) (Miss.Ct.App.2007) (granting the defendant’s out-of-time appeal based on evidence that the trial court imposed an illegal sentence). This Court has held that “the appellate courts do have the authority to grant a criminal defendant such an appeal if failure to perfect the appeal was ‘through no fault of his own’ and if ‘justice demands.’ ” Parker, 921 So.2d at 399(5) (quoting McGruder, 886 So.2d at 2(4)).

¶ 10. In this case, Moore simply fails to demonstrate any reason why this Court should suspend the thirty-day requirement of Rule 4(a) and grant him an out-of-time appeal. Based on our review of the record, we cannot find any evidence that would compel this Court to grant Moore an out-of-time appeal in the interest of justice.

¶ 11. Mississippi Rule of Appellate Procedure 2(a)(1) requires that this Court shall dismiss an appeal when that appeal was not filed timely pursuant to Rule 4. Since Moore’s appeal was not filed timely and because we cannot find any reason to allow Moore to proceed with an out-of-time appeal, we hereby dismiss Moore’s appeal.

CONCLUSION

¶ 12. We find that the trial court lacked the authority to grant Moore’s motion for an out-of-time appeal because Moore’s request was filed more than 180 days after the dismissal of his petition for post-conviction relief. Furthermore, we cannot find any reason why this Court should allow Moore to proceed with his out-of-time appeal. Therefore, we hereby dismiss Moore’s appeal.

¶ 13. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

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


text:
    Drew L. ANDERSON, Appellant v. Janet E. ANDERSON, Appellee.
    No. 2007-CA-00879-COA.
    Court of Appeals of Mississippi.
    April 14, 2009.

      Wren Carroll Way, Vicksburg, Attorney for Appellant.
    Lee Davis Thames, Jackson, J. Mack Varner, Attorneys for Appellee.
    Before KING, C.J., GRIFFIS and CARLTON, JJ.
   KING, C.J.,

for the Court.

¶ 1. On January 17, 2007, Drew and Janet Anderson were granted a divorce by the Chancery Court of Warren County based on the ground of irreconcilable differences. The chancellor equitably distributed the marital assets, ordered Drew to pay child support, and awarded Janet permanent periodic alimony and attorney’s fees. Aggrieved, Drew appeals the chancellor’s award of alimony and attorney’s fees. Janet has filed a motion to dismiss the appeal, arguing that Drew’s appeal is time-barred. We find that Drew’s appeal is time-barred and, thus, dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. Drew and Janet were married on October 6, 1984. Two children were born into the marriage — Andrew, who was born on October 17, 1986, and Adam, who was born on July 27, 1989. During the marriage, Drew was employed as an electrical engineer with several governmental agencies, including the United States Army Corp of Engineers. Drew’s job required the family to move quite often. Therefore, the couple agreed that Janet would be a homemaker, and she worked part-time jobs as their sons got older.

¶ 3. After twenty-two years of marriage, Drew asked Janet for a divorce. Janet filed for divorce in the Chancery Court of Warren County on June 9, 2006, based on the ground of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Janet requested custody of the children, child support, an equitable distribution of the marital assets, alimony, and attorney’s fees. The chancellor entered an agreed temporary order regarding custody, child support, and alimony. Thereafter, Drew and Janet consented to a divorce based on irreconcilable differences and agreed to let the chancellor decide the issues of child support, distribution of the marital assets, alimony, and attorney’s fees.

¶4. In the “Final Judgment” filed on January 5, 2007, which was formally entered on the general docket on January 17, 2007, pursuant to Mississippi Rule of Civil Procedure 79(a), the chancellor granted Drew and Janet a divorce based on irreconcilable differences. In her final judgment, the chancellor stated that she considered the testimony of the witnesses, exhibits, the Ferguson factors, the Armstrong factors, and the Davis factors in making her decision. The chancellor awarded Drew and Janet joint legal custody of the children, with Janet having primary physical custody. Drew was ordered to pay child support in the amount of $1,100 per month. The chancellor equitably distributed the marital assets, awarding Janet the following: her retirement account of $1,100; $115,050.84, which is one-half of Drew’s thrift savings plan; and $9,391.50, which is one-half of Drew’s retirement account. The chancellor also ordered Drew to pay Janet permanent periodic alimony in the amount of $1,200 per month and $5,000 toward Janet’s attorney’s fees. In her order, the chancellor specifically provided: “That the Court reserves its right to require briefs from the attorneys. That the Court further reserves its right to make findings of fact and conclusions of law.”

¶ 5. On February 2, 2007, Drew filed a motion to reconsider the award of alimony and attorney’s fees, and he requested that the chancellor make specific findings of fact. Janet filed a motion to dismiss, arguing that Drew’s motions were time-barred. Likewise, on February 2, 2007, the chancellor, acting on her own motion, entered an order which required the attorneys “... to submit briefs to this Court on or before February 16, 2007, in support of their clients’ positions.”

¶6. On April 27, 2007, the chancellor denied Drew’s motion to reconsider, finding that it was time-barred. However, the chancellor granted Drew’s request for specific findings of fact and made findings in regard to Janet’s awards of child support, permanent periodic alimony, and attorney’s fees. The chancellor stated that the final judgment entered in January 2007, remained in full force and effect. Drew now comes to this Court appealing the chancellor’s award of permanent periodic alimony and attorney’s fees, and Janet has filed a motion to dismiss Drew’s appeal as time-barred.

ANALYSIS

¶ 7. This Court will not disturb a chancellor’s findings of fact when supported by substantial evidence unless the chancellor abused her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Shoffner v. Shoffner, 909 So.2d 1245, 1249(11) (Miss.Ct.App.2005) (quoting Duncan v. Duncan, 774 So.2d 418, 419(4) (Miss.2000)). However, questions of law are reviewed de novo. Id.

I. Whether Drew’s motion to reconsider was time-barred.

¶ 8. In her motion to dismiss, Janet argues that the chancellor properly denied Drew’s motion to reconsider because it was time-barred. Drew does not rebut this contention. We agree that Drew’s motion to reconsider was time-barred.

¶ 9. The supreme court has held that a motion to reconsider is treated as a motion to amend a judgment pursuant to Mississippi Rule of Civil Procedure 59(e). Boyles v. Schlumberger Tech. Corp., 792 So.2d 262, 265(6) (Miss.2001) (citing In re Estate of Stewart, 732 So.2d 255, 257(8) (Miss.1999)). Pursuant to Rule 59(e), “[a] motion to alter or amend the judgment shall be filed not later than ten days after entry of the judgment.” (Emphasis added). Therefore, a motion to reconsider must also be filed within ten days after the entry of the judgment.

¶ 10. In the chancellor’s order denying Drew’s motion to reconsider, she stated that:

The Court entered its Final Judgment on January 5, 2007 and Mr. Anderson filed his Motion to Reconsider on February 2, 2007, which is more than ten (10) days after the Final Judgment was entered.

We find that Drew’s motion to reconsider was, in fact, time-barred. The final judgment was entered on January 17, 2007. Drew did not file his motion to reconsider until February 2, 2007, which is more than ten days after the entry of the final judgment. Therefore, we find that the chancellor did not err by finding Drew’s motion to reconsider to be time-barred.

II. Whether Drew’s motion requesting specific findings of fact was time-barred.

¶ 11. In her motion to dismiss, Janet also argues that Drew’s motion requesting specific findings of fact was time-barred because it was filed more than ten days after the entry of the final judgment. Conversely, Drew maintains that his motion requesting specific findings of fact was not time-barred.

¶ 12. Mississippi Rule of Civil Procedure 52(a) provides that:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

Mississippi Rule of Civil Procedure 52(b) states, in part, that:

Upon motion of a party filed not later than ten days after entry of judgment or entry of findings and conclusions, or upon its own initiative during the same period, the court may amend its findings or make additional findings and may amend the judgment accordingly.

Drew argues that he made his motion requesting specific findings of fact under Rule 52(a), not Rule 52(b). Thus, he maintains that the ten-day limitation does not apply to him. We disagree.

¶ 13. Rule 52(a) addresses the lower court’s duty to make specific findings of fact. Whereas Rule 52(b) provides the procedure that a party or the court, upon its own motion, must follow to amend a judgment or make additional findings. Rule 52(b) clearly states that a motion to amend a judgment or make additional findings must be filed within ten days after the entry of the final judgment.

¶ 14. In her January 2007 judgment, the chancellor summarized the parties’ procedural history, stated that she considered the Ferguson factors, the Armstrong factors, and the Davis factors when making her decision. The chancellor then listed the awards to each party. The chancellor’s findings may not have been as specific as we require, but they are findings nonetheless. Thus, Drew’s request was nothing more than a motion for the chancellor to make additional findings, which is subject to the ten-day limitation. Since Drew filed his motion more than ten days after the entry of the final judgment, it was time-barred.

¶ 15. Drew attempts to persuade this Court that because the chancellor granted his motion requesting specific findings of fact, his motion was not time-barred. For cause shown, Mississippi Rule of Civil Procedure 6(b) allows the chancellor to enlarge the time in which “an act is required or allowed to be done at or within a specified time[.]” However, Rule 6(b) specifically precludes the chancellor from enlarging the time to act under Rule 52(b). M.R.C.P. 6(b); see also Telford v. Aloway, 530 So.2d 179, 180-81 (Miss.1988). Thus, the chancellor lacked jurisdiction of Drew’s motion requesting specific findings of fact. Although Drew’s motion was time-barred, the chancellor’s decision to grant his request and make additional findings was only harmless error. It is important for the chancellor to make specific findings of fact because it provides this Court with an adequate record to review to determine whether the trial court committed error. See Pilgrim Rest Missionary Baptist Church v. Wallace, 835 So.2d 67, 74(18) (Miss.2003). If Drew had timely filed this appeal, and the chancellor had not made specific findings of fact, this Court might have vacated the judgment and remanded the case to the chancellor to make specific findings. See Patout v. Patout, 733 So.2d 770, 773(16) (Miss.1999). Therefore, we find that the chancellor’s decision to make specific findings of fact was only harmless error. Regardless of whether the chancellor made specific findings of fact, Drew still had a duty to timely file his motions and to timely appeal this matter. In this case, he simply failed to do so.

III. Whether Drew’s appeal is time-barred.

¶ 16. Depending upon the date of entry of the chancellor’s final judgment, Drew’s appeal may be time-barred. Janet argues that the final judgment was entered on January 17, 2007, and Drew’s appeal should be dismissed as time-barred because he filed his notice of appeal on May 22, 2007, more than thirty days after the entry of judgment. Conversely, Drew maintains that the final judgment was entered on April 27, 2007, and he timely filed his notice of appeal within thirty days of this date.

A. Date of the Final Judgment

¶ 17. It is important that the parties have a clear understanding of what document provides the final judgment because the time in which to file many time sensitive motions is calculated from the date of the entry of the final judgment. See Mullen v. Green Tree Fin. Corp., 730 So.2d 9, 12(10) (Miss.1998) (citations omitted). As in this case, filing a motion to reconsider, a motion requesting specific findings of fact, and an appeal are three such time-sensitive actions. Id.

¶ 18. There is a difference between the trial court’s decision and the trial court’s judgment. See id. (9) (quoting M.R.C.P. 54(a) cmt.). A decision is the trial court’s findings of fact and conclusions of law. Id. However, the entry of the judgment is the pronouncement of that decision and gives it legal effect. Id. “A final, appealable, judgment is one that ‘adjudicates] the merits of the controversy which settles all issues as to all the parties’ and requires no further action by the lower court.” Walters v. Watters, 956 So.2d 1050, 1053(8) (Miss.Ct.App.2007) (quoting Banks v. City Fin. Co., 825 So.2d 642, 645(9) (Miss.2002)).

¶ 19. The “Final Judgment” in Drew and Janet’s divorce was entered on January 17, 2007. Afterwards, Drew filed his motion to reconsider and his motion requesting specific findings of fact on February 2, 2007. As previously stated, both of these motions were time-barred. However, the chancellor granted Drew’s motion requesting specific findings of fact. Those findings were embodied in a document filed on April 27, 2007, which was styled “Memorandum Opinion and Final Judgment.”

¶20. In Telford, an analogous case, a judgment in a tort lawsuit was entered on May 6, 1986. Telford, 530 So.2d at 180. The trial court stated that the parties had thirty days in which to file any post-trial motions. Id. Thereafter, the plaintiffs filed a motion for a new trial or an additur twenty-two days after the final judgment was entered. Id. The defendant filed a motion to dismiss the plaintiffs’ motion, arguing that the motion for a new trial or additur was time-barred because the motions were filed past the ten-day limitation prescribed by Mississippi Rule of Civil Procedure 59(b). Id. The trial court denied the defendant’s motion to dismiss and decided the plaintiffs’ motions on the merits. Id. The trial court denied the plaintiffs’ motions in an order dated August, 5, 1986. Id. Aggrieved, the plaintiffs filed a notice of appeal to the supreme court on August 15,1986. Id.

¶ 21. On appeal, the defendant argued that: (1) the plaintiffs’ motion for a new trial or additur was time-barred pursuant to Rule 59(b); (2) pursuant to Rule 6(b), the ten-day limitation was mandatory and jurisdictional; and (3) the plaintiffs’ appeal was time-barred because the plaintiffs failed to file their appeal within thirty days of the final judgment, which was entered on May 6, 1986. Id. The supreme court stated that Rule 6(b) provided that:

When by these rules or by notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b), 59(b), 59(d), 59(e), 60(b), and 60(c) except to the extent and under the conditions therein stated.

Id. at 180-81 (citing M.R.C.P. 6(b)). Based on the foregoing, the supreme court found that:

We interpret the ten[-]day limit set forth in Rule 59(b) to be jurisdictional and mandatory. The rule states an inflexible standard. The trial court had no jurisdiction to consider the untimely motion filed by the [plaintiffs], and the appeal from the void order denying that motion must be docketed and dismissed.

Id. at 181. Because the plaintiffs failed to file their post-trial motions within the ten-day limitation, the supreme court held that the time to appeal began to run from the judgment entered on May 6, 1986. Id. Since the plaintiffs failed to file their appeal within thirty days of the entry of the final judgment, the supreme court dismissed the plaintiffs’ appeal. Id.

¶22. Like the trial court in Tel-ford, the chancellor in this case lacked jurisdiction to enlarge the limitation period within to file any post-trial motions. As previously mentioned, Drew’s motion requesting specific findings of fact and his motion to reconsider were time-barred by the ten-day limitation prescribed by Rule 52(b) and Rule 59(e), respectively. Since Drew’s post-trial motions were time-barred and the chancellor lacked jurisdiction to consider the motions on the merits, the memorandum opinion filed on April 27, 2007, was void.

¶ 28. The January 17, 2007, judgment attended to all of the issues before the chancellor: (1) the support of the minor children; (2) the equitable distribution of the marital assets and liabilities; (3) whether to award Janet alimony; and (4) whether to award Janet attorney’s fees. The January 17, 2007, judgment was properly entered, giving the chancellor’s decision legal effect. This is also evidenced by the fact that, on January 18, 2007, an order by the chancellor was entered, notifying Drew’s employer that Janet was granted one-half of his thrift savings plan. Having fully resolved all issues submitted to her, the chancellor’s January 17, 2007, judgment was a final judgment. Thus, Drew was required to perfect his appeal thirty days from January 17, 2007, and we will calculate the time within which Drew and Janet had to file their post-trial motions and appeals from this date.

B. Drew’s appeal is time-barred.

¶ 24. Mississippi Rule of Appellate Procedure 4(a) provides that the notice of appeal shall be filed within thirty days of the entry of the final judgment or order appealed from. Drew does not argue that the chancellor erred by denying his motion to reconsider. Drew only challenges the awards of permanent periodic alimony and attorney’s fees. Therefore, Drew attempts to appeal from the chancellor’s final judgment. As we previously found, the chancellor’s final judgment was entered on January 17, 2007. Drew did not file this appeal until May 22, 2007, more than thirty days after the entry of final judgment. This Court can only presume that the chancellor’s formal reservation of the right to require briefs and to further make findings of fact and conclusions of law, coupled with the entry of an order on the Court’s own motion requiring briefing, may have caused Drew to conclude that he had additional time in which to seek post-trial relief. Consistent with the supreme court’s holding in Telford, the chancery court was required to exercise its authority within the confines of the appropriate procedural rules. The failure to do so in this case, as in Telford, deprived the chancery court of the authority to act. When the chancery court on February 2, 2007, acting on its own motion, required briefing from the attorneys “in support of their client’s positions regarding the Complaint for Divorce and Answer to Complaint and all issues addressed in the Defendant’s Request for Specific Finding of Fact,” there was nothing which was properly pending before the court upon which briefing could have been ordered, except the question of whether jurisdiction existed to grant the requested relief. The chancellor’s mistaken belief that she had additional authority did not extend her jurisdiction, nor did it extend the time for Drew’s post-trial motions. Since Drew’s appeal is time-barred, we dismiss this appeal for want of jurisdiction.

¶ 25. Although this Court is procedurally barred from addressing the merits of Drew’s claims, the Court notes that Drew still has the option of requesting a modification of alimony from the chancery court. This Court has stated that:

The party seeking a modification of support must show that there has been a material change in circumstances arising after the last decree. The change must be one which could not have been reasonably anticipated at the time of the decree.

McCraw v. McCraw, 759 So.2d 519, 521(4) (Miss.Ct.App.2000) (internal citations omitted). Despite our dismissal of Drew’s appeal, this avenue of recourse remains available to him.

CONCLUSION

¶ 26. We find that the final judgment in Drew and Janet’s divorce was entered on January 17, 2007. Drew’s motion to reconsider was time-barred because he filed the motion more than ten days after the entry of the judgment. Drew’s motion requesting specific findings of fact was also time-barred as he filed the motion more than ten days after the entry of the judgment. The chancellor granted the motion for specific findings of fact; however, the chancellor’s decision to make additional findings was only harmless error. Drew did not file this appeal until May 22, 2007, more than thirty days after the entry of the final judgment on January 17, 2007. Therefore, we find that Drew’s appeal is time-barred and dismiss this appeal for want of jurisdiction.

¶ 27. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994).

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).

        .Davis v. Davis, 832 So.2d 492, 497(19) (Miss.2002).

      . The final judgment was filed on January 5, 2007. However, the final judgment was not formally entered in the record by the clerk until January 17, 2007.