author: CHANDLER, J.,

text:
    Dennis DOBBS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-00900-COA.
    Court of Appeals of Mississippi.
    June 10, 2008.
    Rehearing Dismissed Nov. 12, 2008.

      Dennis Dobbs, pro se.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before MYERS, P.J., CHANDLER and BARNES, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. In addressing Dennis Dobbs’s various filings, the Circuit Court of Marshall County treated them as a motion for post-conviction relief and denied relief to Dobbs. Aggrieved, Dobbs appeals. He claims that his motions were not post-conviction motions; instead, they were complaints under 42 United States Codé section 1983 (2006). He also reasserts his various allegations from his motions to show cause.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Dobbs was an inmate with the Mississippi Department of Corrections serving a conviction from Clay County, Mississippi for false pretenses and the simple assault of a police officer. On July 25, 2006, Dobbs filed a motion with the Circuit Court of Marshall County, which he titled “Petition for an Order to Show Cause.” In the motion, Dobbs alleged he was housed in inhuman conditions at the Marshall County Correctional Facility. His specific complaints were that the windows of the facility would not open, and there were no air conditioners installed.

¶ 4. Dobbs later filed an amendment to his petition, further alleging that the correctional facility lacked a fire sprinkler system, thereby creating a fire hazard. Additionally, the record contains a number of other documents that Dobbs filed. Dobbs did not reference any of these in his appeal, and they appear to be unrelated to his motions. These additional documents include affidavits, a letter to Attorney General Jim Hood, a letter to Governor Haley Barbour, a letter to MDOC attorney Jim Norris, another petition to show cause regarding illegally obtained evidence, a “Motion for Emergency Assistance,” and two documents each titled “Written Argument.”

¶ 5. On May 10, 2007, the circuit court entered an order treating Dobbs’s requests as a motion for post-conviction relief. The order found that Dobbs was not entitled to the requested relief and denied his motion. Dobbs timely appealed from that decision.

STANDARD OF REVIEW

¶ 6. In reviewing a trial court’s denial of post-conviction relief, this Court will not disturb the trial court’s findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). However, where questions of law are raised, our review is de novo. Id.

ANALYSIS OF THE ISSUES

¶ 7. The statute providing the grounds for posUconviction relief lists nine grounds for which relief may be sought. Miss.Code Ann. § 99-39-5 (Rev.2007). Those grounds are as follows:

(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
(f) That his plea was made involuntarily;
(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(h) That he is entitled to an out-of-time appeal; or
(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy; may file a motion to vacate, set aside or correct the judgment or sentence, or for an out-of-time appeal.

Miss.Code Ann. § 99 — 39—5(1)(a)—(i).

¶ 8. Dobbs’s allegations do not fall under any of the grounds for post-conviction relief enumerated in section 99-39-5(1). Therefore, he was not entitled to any relief under the post-conviction statute. Because the circuit court treated Dobbs’s filings as a motion for post-conviction relief, it was proper to deny his requested relief.

¶9. While the circuit court addressed Dobbs’s filings as a motion for post-conviction relief, Dobbs now argues on appeal that his motion was actually a section 1983 complaint. We interpret this to mean that Dobbs is attempting to assert a claim under 42 United States Code section 1983 (2006). Nevertheless, this argument from Dobbs is without merit. First, Dobbs never filed any such complaint or any corresponding summons. What Dobbs filed was a motion and a number of various documents. Under Rule 3(a) of the Mississippi Rules of Civil Procedure, a party must file a complaint to institute an action. Crumpton v. Hegwood, 740 So.2d 292, 294(¶ 9) (Miss.1999). Whether Dobbs properly asserted grounds sufficient to warrant relief under section 1983 is irrelevant because he did not file a complaint asserting those grounds. Dobbs’s argument that his motion was actually a section 1983 complaint is without merit.

¶ 10. In finding Dobbs’s allegations to be without merit, we also note that Dobbs addressed his motion to the State of Mississippi. Under section 1983, “the State and state agencies are not ‘persons’ that Congress intended to subject to liability, and therefore, cannot be sued under § 1983 in state court.” Lofton v. United States, 785 So.2d 287, 289-90(¶ 5) (Miss.2001) (citing Wright v. White, 693 So.2d 898, 904 (Miss.1997) (overruled on other grounds)); see also Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The fact that Dobbs filed his motion against the State additionally shows that this was not a proper action under section 1983 and that Dobbs’s allegations are without merit.

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

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


source: Caselaw Access Project

author: KING, C.J., GRIFFIS, J.,

license: Public Domain

text:
    DELPHI PACKARD ELECTRIC SYSTEMS, Employer/Self-Insured, Appellant v. Earnil BROWN, Appellee.
    No. 2007-WC-00820-COA.
    Court of Appeals of Mississippi.
    Aug. 5, 2008.
    Rehearing Denied Jan. 6, 2009.
    Certiorari Denied April 16, 2009.

      Andrew D. Sweat, Jennifer H. Scott, Jackson, attorneys for appellant.
    Roger K. Doolittle, Jackson, attorney for appellee.
   KING, C.J.,

for the Court.

¶ 1. Delphi Packard Electric Systems appeals the decision of the Mississippi Workers’ Compensation Commission finding that Earnil Brown was entitled to permanent total disability benefits as a result of physical and mental injuries sustained in a work-related accident on February 11, 1999. Delphi Packard argues that Brown failed to sufficiently show that: (1) his work injury caused a disabling back injury or a mental injury, and (2) he failed to prove a loss of wage-earning capacity. Finding that substantial evidence does exist to support the Commission’s decision, we affirm the judgment of the Circuit Court of Hinds County and the decision of the Commission.

FACTS

¶ 2. Brown petitioned the Commission for benefits based on injuries he sustained while employed as a machine operator at his workplace, Delphi Packard, on February 11, 1999. Brown alleged that he injured his neck, back, shoulders, and right hand when he fell on a wet floor while lifting overhead. Later, Brown amended his petition to include a claim for work-related mental injuries.

¶ 3. Delphi Packard admitted compensa-bility. However, a dispute arose over the extent of the resulting disability and the responsibility for certain medical care. Delphi Packard also denied that Brown suffered any permanent disability or loss of wage-earning capacity as a result of the work-related accident.

¶ 4. After a hearing, the administrative law judge (“ALJ”) found that Brown suffered a five percent permanent partial medical impairment to his body as a whole as a result of the cervical injury. The ALJ rejected the claim of permanent medical impairment as a result of the lumbar injury. Brown was awarded temporary total disability benefits from September 1, 1999, through the date of maximum medical improvement, May 2, 2000, as well as reasonable and necessary medical services relating to the treatment of Brown’s cervical and lumbar injuries. However, Brown’s claim for permanent benefits was denied due to his failure to prove a loss of wage-earning capacity by making reasonable post-injury efforts to find gainful employment following his release back to work. The ALJ denied Brown’s claim for mental injuries, finding that he failed to prove by a fair preponderance of credible evidence that he suffered such an injury as a result of his employment with Delphi Packard.

¶ 5. Brown appealed the ALJ’s decision to the Commission. He asked the Commission to find that he was entitled to compensation and benefits arising from his cervical, lumbar, and psychiatric injuries. The Commission agreed with Brown and reversed the ALJ’s finding on permanent disability benefits. The Commission found that Brown was permanently and totally disabled. Further, the Commission found that Brown sustained psychological or mental injuries flowing from his physical injuries and ordered the employer to provide medical services and supplies related to the treatment of such injuries.

¶ 6. Delphi Packard appealed the Commission’s decision to the Circuit Court of Hinds County. The circuit court found that substantial evidence supported the Commission’s decision and affirmed. Delphi Packard’s appeal was deflected to this Court, where Delphi Packard argues that the Commission erred in finding that Brown: (1) sustained a mental injury as a result of his February 11, 1999, work injury and (2) sufficiently proved a loss of wage-earning capacity necessary for an award of permanent, total disability benefits.

STANDARD OF REVIEW

¶ 7. This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence. Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 447(¶ 7) (Miss.Ct.App.1999). The Commission sits as the ultimate finder of fact; its findings are subject to normal, deferential standards upon review. Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). We will only reverse the Commission’s rulings when its findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997); Westmoreland, 752 So.2d at 448(¶ 8).

¶ 8. “[A] finding is clearly erroneous when ... the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” J.R. Logging v. Halford, 765 So.2d 580, 583(¶ 13) (Miss.Ct.App.2000) (citation omitted).

ANALYSIS

1. Whether substantial evidence supports the Commission’s determination that Brown sustained a mental injury as a result of his February 11, 1999, workplace injury.

¶ 9. The ALJ denied Brown’s claim for mental injuries, finding that Brown failed to prove that he suffered mental or psychological injuries as a result of his employment with Delphi Packard. The ALJ found that Brown’s psychological treatment was not reasonably and necessarily related to his work injury. However, the Commission reversed this decision. The Commission found that Brown’s mental injuries flowed from the existence of his physical injuries and awarded Brown benefits based on this finding.

¶ 10. When a claimant seeks compensation benefits for mental injuries, the claimant must prove a causal connection between the employment and the injury by clear and convincing evidence. Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988). “Furthermore, to be compensable, a mental injury, unaccompanied by physical trauma, must have been caused by something more than the ordinary incidents of employment.” Id.

¶ 11. The Commission, as the fact-finder, considered this case with great care and provided a well-reasoned opinion awarding benefits to Brown. That opinion reviewed all of the evidence, including medical testimony, and provided a rational basis for resolving questions of credibility and conflicting positions. As such, it is appropriate that this Court defer to the Commission’s findings.

¶ 12. The Commission noted that Brown’s injury was initially treated by Dr. Irvin Cronin, who is the physician Delphi Packard sent Brown to see. Brown continued to work, but he would on occasion miss work due to this injury. While being treated by Dr. Cronin, Brown complained of worsening pain in the area of the injury. In September 1999, Brown started treatment with Dr. Kenneth Vogel, a neurosurgeon in New Orleans. Dr. Vogel’s records note consistent complaints of pain by Brown in the area of the injury. Dr. Vogel first treated Brown in 1983 for a prior work-related injury. Dr. Vogel also treated Brown for subsequent work-related injuries; thus, he had a fairly significant treatment history with Brown.

¶ 13. Based upon his treatment of Brown, Dr. Vogel determined that “[t]he patient will have incurred a five percent increase of medical impairment of the body as a whole with further restrictions in that he has been advised to avoid those activities which require him to lift, push or pull greater than 35 pounds or bend, repeatedly flex or hyper-extend the neck on a permanent basis in the future relative to his cervical region.”

¶ 14. Dr. Vogel referred Brown to Dr. Faeza Jones, a psychiatrist, for treatment of depression secondary to chronic pain. Dr. Jones treated Brown for major depression secondary to chronic pain. Dr. Jones noted evidence of depression with psychotic behavior, evidenced by crying episodes, decreased appetite, sleeping disorders, and suicidal ideations — later to include homicidal ideations as well. Dr. Jones, as a result, opined that Brown presented evidence of depression with psychotic behavior related to work issues. According to Dr. Jones, Brown reached maximum medical improvement, from a psychiatric basis, on December 5, 2002, but Brown required continuing psychotherapy for major depressive disorder, secondary to chronic pain syndrome. Dr. Jones stated that Brown’s depression, which was attributed to his chronic pain, rendered him permanently, totally disabled.

¶ 15. Brown was seen solely for an evaluation by Dr. Robert Smith, but was not treated. Dr. Smith died prior to the hearing, and the Commission found that his medical records were too vague to be of any assistance. The Commission noted that the only other medical evidence was that from Drs. Robert McGuire and Mark Webb, each of whom saw Brown only once for an employer’s evaluation and did not treat him.

¶ 16. After an evaluation of all of the evidence, the Commission found Brown’s injury compensable, stating:

It is important to the Commission that this employee had worked for Delphi Packard for so many years, had been injured so many times, had returned to work after each of these injuries except the one in 1999 (and he actually may have tried to return in 1999), was treated by his long-term physician who had performed cervical surgeries, and was referred for treatment for depression, secondary to chronic pain by this physician who had a long-standing relationship with the claimant.
Moreover, it is important to us that the claimant had no history or other mental abnormality which required treatment prior to the 1999 injury and that the medical records of Dr. Vogel reflect regular, consistent complaints of pain which would be categorized as ‘chronic’ by medical definition. Thus contrary to the Administrative Judge’s conclusion, it appears to us that the psychological or mental injury flowed from the physical injuries, and we believe that this conclusion is supported by the weight of evidence in this cause. Indeed, we give greater credence in this case to the testimony of the claimant’s treating physicians rather than succumb to the opinions of Doctors Smith, McGuire and Webb, however reliable they may be. Their limited experience with and knowledge of the claimant, when compared with the claimant’s relationship with Doctors Vogel and Jones, suggest that it would be reasonable to accept the opinions of the latter as more reliable in this case.

¶ 17. The treating physicians’ medical records indicated no intervening injury that could be the source of Brown’s pain. The Commission found that there was no credible suggestion of any source of Brown’s chronic pain other than the work-related injury. Thus, the Commission found that the mental injury “flowed from the physical injuries.”

¶ 18. Because there is substantial evidence in the record to support the Commission’s decision, we affirm.

¾. Whether the Commission erred in finding that Brown sustained a loss of wage-earning capacity.

¶ 19. Delphi Packard argues that in the absence of evidence of reasonable efforts by an individual to obtain other employment, the law precludes a finding of permanent, total disability. Delphi Packard alleges that there was a lack of evidence to show that Brown made a reasonable job search; therefore, the Commission’s decision awarding him permanent, total disability benefits was error. Brown responds that the Commission was correct in finding that the absence of completing a formal job search did not preclude a finding of permanent disability.

¶ 20. In the workers’ compensation context, “disability” is defined as the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § 71-3-3© (Rev.2000). The supreme court set forth the following rule regarding the burdens of proof required in a claim for disability:

The claimant has the burden of proof to make out a prima facie case for disability, after which the burden of proof shifts to the employer to rebut or refute the claimant’s evidence. After the burden shifts, evidence indicating that suitable employment was available to claimant becomes relevant and admissible. In such a posture, the employer may present evidence (if any) showing that the claimant’s efforts to obtain other employment were a mere sham, or less than reasonable, or without proper diligence.

Thompson v. Wells-Lamont Corp., 362 So.2d 638, 641 (Miss.1978). This rule has been interpreted to require that a claimant “unequivocally prove a reasonable effort to find other employment.” Sardis Luggage Co. v. Wilson, 374 So.2d 826, 829 (Miss.1979). “The injured claimant, in order to demonstrate total disability must show that he has made a diligent effort, but without success, to obtain other gainful employment. A finding that the claimant has not pursued alternate forms of work with sufficient diligence is grounds to deny a claim of total disability.” McCray v. Key Constrs., Inc., 803 So.2d 1199, 1203(¶ 17) (Miss.Ct.App.2000) (citing Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1249 (Miss.1991)).

¶ 21. However, as with most rules, there are also exceptions. An exception to the requirement that a claimant demonstrate reasonable efforts to find alternative employment is when his doctor declares him totally disabled and lacking in the capacity to perform meaningful employment. As the Commission noted, that is the circumstance in which Brown found himself. On December 5, 2002, Dr. Jones, without equivocation, stated, “Mr. Earnil Brown is being treated for Major Depressive disorder, Secondary to Chronic Pain Syndrome. He remains on medication and is receiving psychotherapy. He is totally disabled (100%) to perform any type of work. He will not be able to return to work or other normal activity. He has reached his maximum recovery potential. Mr. Brown has poor memory.” (emphasis added). Where a claimant’s doctor has declared him totally disabled, this Court does not require that he act contrary to the advice of his doctor and seek employment as a condition of receiving permanent, total disability. Stewart v. Singing River Hosp. Sys., 928 So.2d 176, 185(¶ 46) (Miss.Ct.App.2005).

¶ 22. We find that Brown, by medical evidence, met his burden of proving a loss of wage-earning capacity. Thus, the Commission’s decision was supported by substantial evidence and was not in error.

¶ 23. The judgment of the Circuit Court of Hinds County and the decision of the Mississippi Workers’ Compensation Commission are affirmed.

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

LEE AND MYERS, P.JJ., IRVING AND CHANDLER, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE, ROBERTS AND CARLTON, JJ. BARNES, J., NOT PARTICIPATING.

GRIFFIS, J.,

Dissenting.

¶ 25. Respectfully, I must dissent from the majority’s decision in this case. As to the first issue, I am of the opinion that the medical evidence presented by Earnil Brown failed to show a causal connection between his mental injury and his physical injury occurring on February 11, 1999; thus, there is no substantial evidence to support the Commission’s finding that Brown is entitled to benefits for his mental injury. Accordingly, I would reverse the judgment of the circuit court and the decision of the Commission on the issue of compensation for Brown’s mental injury and render judgment in favor of Delphi Packard Electric Systems.

¶ 26. As the majority states, the ALJ found that Brown’s psychological treatment was not reasonably and necessarily related to his work injury, but the Commission reversed, finding that Brown’s mental injuries flowed from the existence of his physical injuries. In making this determination, the Commission relied upon the opinion of Dr. V. Faeza Jones, Brown’s treating psychiatrist. Dr. Jones diagnosed Brown with chronic pain syndrome and opined that this condition led to depression and psychiatric disorders. The Commission found that Dr. Jones noted evidence of Brown’s depression with psychotic behavior related to work issues.

¶ 27. Based on Dr. Jones’s opinion, the Commission held that Brown’s compensa-ble physical injury resulted in his psychological disorder; thus, his mental injury was also compensable. However, the law is clear that “a claimant asserting that a mental or nervous disease has resulted from an industrial accident must show the causal connection between the accident and the psychoneurosis by dear evidence.” Hemphill Drug Co. v. Mann, 274 So.2d 117, 120 (Miss.1973) (quoting Miller Transporters, Ltd. v. Reeves, 195 So.2d 95, 100 (Miss.1967)) (emphasis added). It is not enough to say, as the Commission did here, that because there was no history of mental injury prior to the work injury, it therefore appears that the mental injury flowed from the work injury. There was no clear evidence presented to the Commission connecting Brown’s mental injuries to his work injury on February 11, 1999. As such, there is no substantial evidence to uphold the Commission’s decision.

¶ 28. When there is no evidence to support the Commission’s finding, we do not hesitate to reverse. Foamex Prods. v. Si-mons, 822 So.2d 1050, 1053(¶ 11) (Miss.Ct.App.2002). The lack of evidence showing a causal connection between Brown’s mental injury and his physical work injury is shown by the following review of the evidence that was presented to the Commission.

¶ 29. Brown was referred to Dr. Jones in August 2000 for “psych treatment/pain management.” Dr. Jones reported that Brown was anxious, paranoid, irritable, hearing voices, and having difficulty sleeping. Dr. Jones consistently stated that these problems were secondary to the chronic pain rather than a specific accident or injury. On an insurance form completed in 2001, Dr. Jones indicated that Brown’s condition was not related to an accident; instead, it was due to chronic pain. Further, in various “To Whom It May Concern” letters written in 2002, Dr. Jones again attributed the cause of Brown’s psychological problems to chronic pain and in no way mentioned the accident on February 11, 1999. Upon review of the medical evidence, it is apparent that Dr. Jones attributed Brown’s major depressive disorder to his chronic pain; however, Dr. Jones never connected Brown’s mental disorder to his physical injury on February 11,1999.

¶ 30. The only other evidence before the Commission concerning Brown’s mental status was the medical opinion of Dr. Mark Webb, a psychiatrist who evaluated Brown at the request of Delphi Packard. Dr. Webb diagnosed Brown as suffering from major depression with psychotic features and personality disorder with histrionic and paranoid features. He concluded that Brown’s personality disorder had existed almost from childhood. Dr. Webb found that Brown’s personality disorder worked to fuel his depressive state for which he is “sort of blaming [Delphi] Packard or over-reacting.” Dr. Webb con-eluded that Brown’s psychiatric impairment was not related to his work injury on February 11, 1999. Instead, he concluded that Brown’s chronic pain was “coming from his paranoia and histrionic features” which had existed throughout most of Brown’s life.

¶ 31. Because the medical evidence presented by Brown failed to show a causal connection between his mental injury and his physical injury occurring on February 11, 1999, there is no substantial evidence to support the Commission’s finding that Brown is entitled to benefits for his mental injury.

¶ 32. I must also respectfully dissent from the majority’s second issue regarding the Commission’s finding that Brown suffered a loss of wage-earning capacity. The majority correctly cites the rule that requires a claimant to make a diligent effort to find other gainful employment before receiving total disability benefits. However, the majority finds that this case fits within an exception to this longstanding rule because Dr. Jones, Brown’s psychiatrist, considered Brown 100% disabled and unable to return to any type of work; thus, a job search was unnecessary.

¶ 33. For this proposition, the majority cites our previous holding in Stewart v. Singing River Hospital System, 928 So.2d 176, 185(¶ 46) (Miss.Ct.App.2005). However, the present case is distinguishable from the facts of Stewart. In Stewart, the Court, stating the exception to the rule, held that there was no requirement that the claimant seek out other employment when such a search was contrary to a competent medical evaluation that the claimant was totally disabled and unable to work. Id. However, the Court in SteivaH specifically stated that the compensability of the accident was never a matter of dispute in the case. Id. at (¶43). The sole contested issue was “the existence and extent of any permanent disability and the loss of wage[-]earning capacity attributable to the Claimant’s injury.” Id.

¶ 34. Here, however, Delphi Packard not only disputed the diagnosis of disability by Dr. Jones but also the mental injuries that were the basis of that diagnosis. Delphi Packard has at all times denied the compensability of Brown’s mental injuries. Delphi Packard further contested the reasonableness and medical necessity of the treatment Brown received from Dr. Jones and the causal connection between her diagnosis and Brown’s work injury of February 11, 1999. Delphi Packard did not accept the findings of Dr. Jones that Brown was unable to return to any type of work and retained its own medical expert, Dr. Webb, who concluded that Brown’s mental injuries were not work-related.

¶35. The compensability of Brown’s mental injury, which was the basis of Dr. Jones’s diagnosis that Brown is totally disabled, has been a central point of contention throughout this case. Thus, the facts here do not, as the majority suggests, neatly fall within the exception stated in Stewart. Just as I find that Brown did not provide sufficient evidence to connect his mental injuries to his compensable work injury, I also find that the diagnosis of his psychiatrist did not dissolve the requirement that Brown conduct a job search.

¶ 36. It is undisputed that Brown did not conduct any type of job search. Consequently, I find that Brown did not meet his burden of proving a loss of wage-earning capacity. Further, the Commission erred as a matter of law by holding that Brown was not required to conduct a diligent job search in order to prove total disability. Therefore, there is no substantial evidence to support the Commission’s award of permanent, total disability benefits. I would reverse the judgment of the circuit court and the decision of the Commission on this issue and render judgment in favor of Delphi Packard.

ISHEE, ROBERTS AND CARLTON, JJ., JOIN THIS SEPARATE OPINION.


author: CARLTON, J., KING, C.J.,

text:
    Stacy HICKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-00696-COA.
    Court of Appeals of Mississippi.
    Aug. 12, 2008.
    Rehearing Denied Jan. 13, 2009.
    Certiorari Denied April 16, 2009.
    Leslie S. Lee, Jackson, Brenda Jackson Patterson, Earl P. Jordan, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   CARLTON, J.,

for the Court.

¶ 1. On February 26, 2007, Stacy Hicks (Hicks) was convicted of aggravated domestic violence. He was sentenced as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections. Hicks now appeals his conviction and sentence, arguing that the trial court erred by allowing improper opinion testimony from a lay witness. Finding no error, we affirm Hicks’s conviction and sentence.

FACTS

¶ 2. On October 28, 2005, Hicks was living with his seventy-two-year-old mother, Villa Hicks (Villa), after serving time in jail. Hicks had an appointment that morning with his dentist. To prepare for his appointment, Hicks began ironing a suit in the living area of the home. Hicks’s mother was close by in her recliner, drinking her morning coffee. Villa and Hicks had an argument about the suit Hicks planned to wear to the appointment. Villa believed the suit belonged to one of her grandchildren, while Hicks claimed to have purchased the suit from that grandchild.

¶ 3. The discussion then turned to the subject of paying bills. Hicks, apparently angered by the discussion, folded up the ironing board, and then began to beat his mother with it. Villa testified that Hicks hit her three or four times while she was still sitting in her chair and then three or four more times after she fell to the floor.

¶ 4. Villa testified that she asked Hicks to call 911 to get medical help for her, but he refused. Hicks left his mother on the floor, went back to his bedroom to put his suit on, and then left the house on foot. Villa tried to call 911 for herself, but her phone would not work. She was able to walk to a neighbor’s house to call for help. Once help arrived, Villa was transported to the hospital for the treatment of her injuries. Villa’s injuries required several stitches, and she was hospitalized for two days. Further, one of her eyes was so badly injured that she no longer has sight in it. Villa’s wounds were photographed, and the scene of the assault was also photographed.

¶ 5. Hicks was arrested and charged with aggravated domestic violence or, alternatively, the lesser crime of simple assault; he was also charged as a habitual offender. Hicks claimed that he acted in self-defense, responding to his mother’s threats of violence with a steak knife. During questioning by police, Hicks indicated that he had injuries from the altercation, and the officer photographed those injuries.

¶ 6. At trial, the State called three witnesses: (1) Villa; (2) Ann Follins, the neighbor who helped Villa call the police; and (3) Officer J.G. Kufel. Officer Kufel is the investigator who photographed the crime scene and the wounds on Villa and Hicks. Hicks testified in his own defense and was the only witness for the defense.

DISCUSSION

¶ 7. Hicks raises only one issue for our review on appeal. He contends that the trial court erred in allowing into evidence portions of Officer Kufel’s testimony which refuted his claim of self-defense. Hicks argues that because Officer Kufel’s opinion testimony was based on his years of experience as a law enforcement officer, it should have been excluded because Officer Kufel had not been qualified as an expert witness.

¶8. The State contends that the issue is procedurally barred due to Hicks’s failure to raise an objection to the testimony at trial or in his motion for a new trial. The State cites to Spicer v. State, 921 So.2d 292, 305(¶ 22) (Miss.2006) for the proposition that raising a specific objection as to one or more specific grounds before the trial court waives all other grounds for objection. Hicks’s objection, the State argues, was insufficient because it did not specifically refer to Rule 702 of the Mississippi Rules of Evidence.

¶ 9. The problematic portion of Officer Kufel’s testimony occurred during direct examination by the State. That portion of Officer Kufel’s testimony is as follows:

Q. Okay. And you photographed those because [Hicks] pointed them out to you? Did he point those out to you?
A. Actually, when he told me that [Villa] had attacked him, then I wanted to see if [Hicks] had any injuries on him, and we asked [Hicks] at the jail about any injuries he had. And at that time, I told him I wanted to photograph them, and he allowed us to photograph them.
Q. Okay. Now, with 18 years of law enforcement experience, someone that got the injuries that are associated with photograph [p]age 4, 5, and 6, would that — would [p]hotographs 9 and 10, the photos depicted there, would that corol-late [sic] to defensive wounds to a struggle that is depicted in 4, 5, and 6?
BY DEFENSE COUNSEL: Judge, we are going to object to the definition of what she is calling defensive wounds in relation — I don’t think that is a clear question. I didn’t understand it, anyway.
BY THE COURT: Sustained. I don’t know if he is going to be — I think it probably would require expert testimony-
Q. Can you compare the wounds from [e]xhibits 9 and 10 as compared to the wounds that were inflicted on [p]hoto-graph [p]ages 4, 5, and 6?
A. The wounds on 5 and 6—
BY DEFENSE COUNSEL: Object as to compare. What is her question? Can you compare them? What is the question?
BY THE STATE: Severity, Your Hon- or. I mean, these are photographs, but he was actually there to see the wounds. I think his — although the photographs are good evidence, he was actually there to see the wounds on the person, and I want him to compare the severity of the injuries to [Villa] as compared to [Hicks].
BY DEFENSE COUNSEL: To which gets back to the question of severity, and he is not qualified.
BY THE COURT: I am not sure I understand the question. Rephrase your question.
Q: Would you expect to see the type of injuries that are depicted on [p]ages 9 and 10, or would you expect to see injuries that are much worse than that, with a knife — if you are defending yourself in a knife altercation?
BY DEFENSE COUNSEL: Renew my objection.
BY THE COURT: Overruled. I will let him answer that question, if he can.
A: If I understand it correct[ly], the injuries in 9 and 10 appear to be very minor injuries compared to the [e]xhibits 4, 5, and 6, which are a lot more severe-type injuries.
Q: All right. But let me ask you this: If someone was defending themselves in a knife fight from someone with a knife, defending themselves, would you expect to see the kinds of wounds that are associated with the pictures on [p]ages 9 and 10 or something worse than that?
BY DEFENSE COUNSEL: Same objection, Your Honor.
BY THE COURT: Overruled. I will let him answer. The photos speak for themselves. He will be subject to cross-examination.
A: If they were defending themselves from a knife wound, I would expect to see a lot more severe injury.
Q: Okay. And in 18 years, have you been associated with cases where people were defending themselves from knife attacks?
A: Yes, ma’am.

¶ 10. It is clear to this Court that Hicks’s counsel raised the objection to Officer Kufel’s testimony before the trial court. The trial judge sustained Hicks’s first objection, stating, “I think it probably would require expert testimony.” As the State continued to question Officer Kufel, Hicks continued to object, arguing, “which gets back to the question of severity, and he is not qualified.” The trial court overruled Hicks’s objections and allowed the testimony into evidence. We find the issue to be properly preserved for our review. We now must consider whether the trial court erred in allowing Officer Kufel’s opinion testimony.

¶ 11. This Court has articulated its standard of review in cases where the admission of evidence is at issue. “We review the admission or exclusion of evidence under the abuse of discretion standard of review and will not reverse unless a substantial right of the defendant is adversely affected by the improperly admitted or excluded evidence.” Young v. State, 981 So.2d 308, 313(¶ 17) (Miss.Ct.App.2007) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113(¶ 12) (Miss.1999)).

¶ 12. Hicks argues that Officer Kufel’s statements were based on his eighteen years of experience in law enforcement and criminal investigations. Because his testimony was based on his experience as a law enforcement professional, Hicks ai'-gues that Officer Kufel’s testimony should have been considered expert opinion testimony and subjected to the foundational requirements of Rule 702 of the Mississippi Rules of Evidence, as well as discovery procedures of Rule 9.04(A)(4) of the Uniform Rules of Circuit and County Court.

¶ 13. Hicks cites Ramos v. State, 710 So.2d 380, (Miss.1998), in support of his argument that the testimony should have been excluded. In Ramos, a deputy sheriff testified against the defendant regarding the street value of marijuana, the typical methods used by drug smugglers to mask the smell of marijuana, and the freshness of the marijuana seized during the stop. Id. at 387(¶ 32). The supreme court in that case reversed the trial court, holding that the testimony was expert, not lay testimony. Id. at 388(¶ 38).

¶ 14. The case at bar is distinguishable from Ramos. The testimony provided by Deputy Bosarge in Ramos required more expertise than the testimony provided by Officer Kufel. In Ramos, the testimony went further than just the deputy’s firsthand observations. Deputy Bosarge testified, based on his experience and training as a law enforcement officer. See Ramos, 710 So.2d at 387-88 (¶¶ 33-38). His statements went beyond a description of the items seized and ventured into expert opinion testimony based on his expertise and experience as a law enforcement officer. See id. at 388(1138).

¶ 15. As the supreme court in Sample v. State, 643 So.2d 524, 529 (Miss.1994) noted, “[tjhere is often a very thin line between fact and opinion.” Further, the supreme court held:

There is a bright-line rule. That is, where, in order to express the opinion, the witness must possess some experience or expertise beyond that of the average, randomly selected adult, it is a Miss. R. Evid. 702 opinion and not a Rule 701 opinion.

Id. at 529-30 (citing Miss. State Highway Comm’n v. Gilich, 609 So.2d 367, 377 (Miss.1992)).

¶ 16. In the case at bar, the testimony at issue required only personal observation. No particular knowledge was necessary for Officer Kufel to compare the severity of Villa’s injuries to the severity of Hicks’s injuries. Officer Kufel did little more than describe the injuries that he observed first-hand shortly after the assault occurred. His descriptions of the wounds and their relative severity were factual descriptions and fall within Mississippi Rule of Evidence 701. However, to the extent that Officer Kufel blurred the line between fact and opinion testimony with regard to his testimony that he would expect Hicks to have more severe injuries if he had been defending himself against a knife attack, we find any error to be harmless in light of the overwhelming weight of the evidence of his guilt.

¶ 17. “An error is harmless only when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” Young, 981 So.2d at 313(¶ 17) (quoting Forrest v. State, 335 So.2d 900, 903 (Miss.1976)). The Mississippi Supreme Court has further explained our standard regarding harmless error, stating:

To warrant reversal, two elements must be shown: error, and injury to the party appealing. Error is harmless when it is trivial, formal, or merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case; it is prejudicial, and ground for reversal, only when it affects the final result of the case and works adversely to a substantial right of the party assigning it. Obviously, in order for the rule of harmless error to be called into play in support of a judgment, the judgment must be otherwise supportable, and will be reversed when there is nothing in the pleadings or evidence to support it.

Gray v. State, 799 So.2d 53, 61(¶ 30) (Miss.2001) (quoting Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216, 221 (Miss.1969)).

¶ 18. We find the evidence in the record so overwhelming as to convince us that a fair-minded jury could have arrived at no other verdict than guilty. The photographs that Officer Kufel identified as being accurate recordings of the crime scene, the ironing board, and the injuries to the victim and to the defendant clearly support the verdict. The photograph of the ironing board, which Hicks used to beat his mother, shows that the ironing board was crumpled at the ends and had a significant amount of blood on it after the attack. Villa testified at trial that the blood on the ironing board was hers. The photograph of Villa’s nightgown, which she was wearing at the time of the attack, shows significant amounts of blood. Follins, Villa’s neighbor, testified at trial that the gown was so soaked with blood that it was clinging to Villa’s body. Photographs of Villa at the hospital show that she had significant injuries.

¶ 19. The photographs of Hicks’s injuries, however, show that he had only minor scratches following the attack on his mother. The evidence at trial contradicts his testimony that he acted in self-defense. Hicks testified that he did not hit his mother with the ironing board; rather, he had only tried to push her away with it. Hicks testified that when he left his mother in the house after the attack, she just had “a few nicks” on her. The photographs and testimony contradict both of those claims. Further, Officer Kufel testified that when he went to the crime scene to photograph it and to gather evidence, he did not find a steak knife.

¶20. An officer is allowed to describe his first-hand observations of injuries. See Seal v. Miller, 605 So.2d 240, 244 (Miss.1992) (holding that testimony from an officer that she did not perceive any evidence to indicate that a car had spun before hitting a pole did not require any special expertise or skill. It was enough that the witness had first-hand knowledge of what was present at the scene). However, officers may not give expert testimony without first being qualified under Mississippi Rule of Evidence 702. To the extent that Officer Kufel’s testimony regarding the defensive nature of Hicks’s wounds constituted expert testimony, we find any such error to be harmless. Therefore, we affirm Hicks’s conviction and sentence.

¶ 21. THE JUDGMENT OF THE CLARKE COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DOMESTIC VIOLENCE AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.

LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. KING, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J. ROBERTS, J., NOT PARTICIPATING.

KING, C.J.,

dissenting.

¶ 22. I dissent. With appropriate regard for the majority, I believe it errs in affirming Hicks’s conviction. As repugnant as the offense charged in this case may be, as an appellate court, it is our responsibility to resolve the issues presented to us consistent with the applicable law.

¶ 23. Hicks and his mother, Villa Hicks, agree that on October 28, 2005, Hicks had been back at home living with his mother for a week since returning from jail. That morning, Hicks awoke after his mother. He came out of his room and began ironing a suit. Meanwhile, Villa, Hicks’s seventy-two-year-old mother, was sitting in her recliner drinking her morning coffee. A discussion began regarding who actually owned the suit. Villa stated it was one of her grandchildren’s suits, while Hicks alleged that he had bought it from the grandchild.

¶ 24. At this point, Hicks and Villa testified to different versions of the events. Villa testified that the discussion turned to whether Hicks was going to help pay bills. When Hicks finished ironing, he began to fold up the ironing board. After he had folded the ironing board, Hicks then began to beat her with the ironing board for no reason. She testified that he hit her three to four times while she was sitting in her chair and then three to four more times after she fell to the floor. Villa testified that while on the floor, she asked Hicks to call 911; instead, he left her for dead. After he left, she attempted to call 911 from her phone, but it would not work. She tried to clean some of the blood off of her, and then she went to a neighbor’s house to call the police. After help arrived, she was taken to the hospital for treatment of her wounds.

¶ 25. Hicks testified to a different version of events. He testified that the disagreement over the suit caused his mother to come at him with a steak knife. He testified that he hit his mother with the ironing board only in self-defense while trying to fend off the knife attack.

¶ 26. Both parties testified that they received injuries from the altercation that morning. However, Villa’s injuries were much more severe requiring several stitches to close some of the wounds she received. In addition, she suffered damage to one eye, which caused her to lose sight in that eye. Hicks had injuries to his hands and leg. He testified that he received those injuries when Villa tried to cut him with a steak knife.

¶ 27. At trial, only four witnesses were called to testify, three by the State and one by the defense. Villa, her neighbor, and Officer J.G. Kufel testified for the State. Hicks was the only witness who testified for the defense. The neighbor’s testimony was merely that Villa came to her house that morning after having received substantial injuries, especially to her head.

¶ 28. The only issue in this case centers around the testimony of Officer Kufel, the officer who responded to Villa’s call. He took pictures of the scene of the altercation, as well as the injuries to Hicks and Villa. While on the stand he testified, that from his experience, he expected that wounds, which one would likely receive from defending against a knife attack, would have been more severe than the ones which Hicks received.

¶ 29. The troublesome testimony is found in the following exchange during the State’s direct examination of Officer Kufel:

Q. Okay. Now, with 18 years of law enforcement experience, someone that got the injuries that are associated with photograph [p]age 4, 5, and 6, would that — would [pjhotographs 9 and 10, the photos depicted there, would that correlate to defensive wounds to a struggle that is depicted in 4, 5, and 6?
BY DEFENSE COUNSEL: Judge, we are going to object to the definition of what she is calling defensive wounds in relation — I don’t think that is a clear question. I didn’t understand it, anyway.
BY THE COURT: Sustained. I don’t know if he is going to be — I think it probably would require expert testimony.
Q. Can you compare the wounds from [e]xhibits 9 and 10 as compared to the wounds that were inflicted on [pjhoto-graph [pjages 4, 5, and 6?
A. The wounds on 5 and 6—
BY DEFENSE COUNSEL: Object as to compare. What is her question? Can you compare them? What is the question?
Q. Severity, Your Honor. I mean, these are photographs, but he was actually there to see the wounds. I think his — although the photographs are good evidence, he was actually there to actually see the wounds on the person, and I want him to compare the severity of the injuries to [Villa] as compared to [Hicks].
BY DEFENSE COUNSEL: To which gets back to the question of severity, and he is not qualified.
BY THE COURT: I am not sure I understand the question. Rephrase your question.
Q. Would you expect to see the type of injuries that are depicted on pages 9 and 10, or would you expect to see injuries that are much worse than that, with a knife — if you are defending yourself in a knife altercation?
BY DEFENSE COUNSEL: Renew my objection.
BY THE COURT: Overruled. I will let him answer that question, if he can.
A. If I understand it correct [sic], the [Hicks’s injuries] appear to be very minor injuries compared to [Villa’s injuries] which are a lot more severe-type injuries.
Q. All right. But let me ask you this: If someone was defending themselves in a knife fight from someone with a knife, defending themselves, would you expect to see the kinds of wounds that are associated with the pictures [of Hicks’s wounds] or something worse than that?
BY DEFENSE COUNSEL: Same objection, Your Honor.
BY THE COURT: Overruled. I will let him answer. The photos speak for themselves. He will be subject to cross-examination.
A. If they were defending themselves from a knife wound, I would expect to see a lot more severe injury.
Q. Okay. And in 18 years, have you been associated with cases where people were defending themselves from knife attacks?
A. Yes, ma’am.

¶ 30. Hicks alleges that Officer Kufel’s opinion testimony in reference to the types of wounds that would be inflicted upon someone defending himself in a knife fight was expert testimony based upon Officer Kufel’s training and eighteen years of experience as a law enforcement officer. Therefore, Officer Kufel should have been classified as an expert witness and subjected to the appropriate foundational and discovery requirements. For support, Hicks cites to Ramos v. State, 710 So.2d 380 (Miss.1998).

¶ 31. In Ramos, a deputy testified as a lay witness as to the street value of marijuana, the method used by drug smugglers to transport marijuana, and that the marijuana found was fresh when it was opened. Id. at 387(1132). The supreme court found that since his testimony was based upon “some experience or expertise beyond that of the average, randomly selected adult, the opinion is [expert testimony] and not [lay testimony].” Id. at 388(¶ 37) (citing Couch v. City of D’Iberville, 656 So.2d 146, 153 (Miss.1995)). Therefore, the supreme court held that the deputy’s testimony should have been subject to the foundational requirements of Rule 702 of the Mississippi Rules of Evidence and the discovery requirements of Rule 4.06 of the Uniform Rules of Circuit Court. Id. at (¶1137-38).

¶ 32. In this case, Officer Kufel was asked if the wounds Hicks received were the same kinds of wounds that an individual would receive while defending himself from being attacked with a knife. He responded, “If they were defending themselves from a knife wound, I would expect to see a lot more severe injury.” The State then asked, “And in 18 years, have you been associated with cases where people were defending themselves from knife attacks?” During the exchange about Hicks’s wounds, the State twice referenced Officer Kufel’s eighteen-year experience when discussing whether Hicks’s wounds appeared to be defensive from a knife altercation. Clearly, the State successfully sought expert opinion testimony from Officer Kufel as to the severity of Hicks’s wounds, as opposed to lay testimony based upon ordinary observation. Officer Kufel could have described the wounds received by Villa and Hicks since he actually viewed both sets of wounds, and perhaps provided some limited comparison. However, absent the proper foundation, he was not qualified under our rules to give an expert opinion based on his law enforcement experience as to whether the wounds Hicks received were defensive wounds from a knife altercation.

¶ 33. Therefore, his opinion crossed the line from permissive lay opinion into expert opinion, and the trial court should have sustained Hicks’s objection at the very least to the State’s question, “All right. But let me ask you this: If someone was defending themselves in a knife fight from someone with a knife, defending themselves, would you expect to see the kinds of wounds that are associated with the pictures [of Hicks’s wounds] or something worse than that?” In addition, it is unclear from the record whether Officer Kufel could have been qualified as an expert witness capable of testifying as to whether the wounds Hicks received were defensive wounds from a knife attack. All that is clear from the record is that in his eighteen years of law enforcement, Officer Kufel had seen the wounds of someone who had defended himself from a knife attack.

¶ 34. The next issue we must consider is whether the error is harmless. Rule 103(a) of the Mississippi Rules of Evidence requires that for error to be based on an evidentiary ruling, it must affect a substantial right of the offended party. “Few, if any, prosecutions have been perfect, and there can be errors ... which do not require reversal of a conviction.” Tran v. State, 962 So.2d 1237, 1246(¶ 36) (Miss.2007). Harmless errors are only those errors “which in the setting of a particular case are so unimportant and insignificant that they may ... be deemed harmless[.]” Id. at 1247(¶ 37). Here, we cannot say that the error was harmless, as it affected Hicks’s right to a fair trial.

¶ 35. This error cannot be classified as harmless due to the nature of the evidence in this case. Only three people offered testimony relevant to the incident that occurred between Villa and Hicks. They were Villa, Hicks, and Officer Kufel. The testimony of Villa and Hicks directly contradicted each other. Villa testified that she was attacked by Hicks without any provocation, while Hicks testified that he was merely defending himself from Villa’s knife attack. It appears that both Villa and Hicks received injuries from the incident, with Villa’s injuries being much more severe. Further, throughout the investigation and at trial, Hicks maintained that he was merely acting in self-defense from Villa’s knife attack. This case boils down to a “he said, she said” case with Officer Kufel’s testimony fully in support of Villa’s testimony. Therefore, the admission of Officer Kufel’s opinion as to whether Hicks received defensive wounds affected a substantial right of Hicks, the right to a fair trial.

¶ 36. Due to the limited testimony in this case, the error of admitting Officer Kufel’s opinion testimony as to whether these were defensive wounds was magnified at trial. I do not believe that this Court can say with confidence that the opinion of Officer Kufel did not affect the jury’s decision in this case. Therefore, the conviction should be reversed, and the case remanded for a new trial.

¶ 37. For the foregoing reasons, I dissent.

CHANDLER, J., JOINS THIS SEPARATE OPINION.

      . Rule 4.06 of the Uniform Rules of Circuit Court is now Rule 9.04 of the Uniform Rules of Circuit and County Court.


author: MYERS, P.J.,

text:
    Anthony SWIFT, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-CP-00790-COA.
    Court of Appeals of Mississippi.
    Aug. 26, 2008.
    Rehearing Denied Jan. 6, 2009.
    Certiorari Denied April 2, 2009.
    Anthony Swift (Pro Se), attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before MYERS, P.J., IRVING and CARLTON, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Anthony Swift appeals the Clay County Circuit Court’s dismissal of his motion for post-conviction relief. Swift was initially indicted on three counts of sale of cocaine. Thereafter, the State moved to amend the indictment against Swift, reducing the charges to possession of cocaine. Swift pleaded guilty to the possession of cocaine, and he was sentenced thereafter.

¶2. In his brief to this Court, Swift alleges a myriad of trial court errors, including allegations against the court reporter and the trial judge. Upon our review, we find that most of these issues are unfounded and meritless; therefore, we ■will only review Swift’s main assertion of error: whether his plea was involuntary.

¶ 3. Swift argues that his plea was entered involuntarily and unknowingly because he was unaware that the trial court allowed an amendment of the indictment to change the charge to a lesser offense. Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court provides that:

Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the recoi'd.

¶ 4. The record in this case demonstrates that Swift was well aware of the charge to which he pleaded guilty. Swift’s attorney represented to the court that Swift was aware of the charge to which he was pleading guilty, and the trial judge confirmed this fact while questioning Swift during the plea colloquy. Swift’s responses to the court’s examination demonstrated his understanding of the charges against him, and the responses demonstrated that he intended to plead guilty. Our review of the plea colloquy finds that Swift’s plea was clearly voluntary, and this issue is without merit.

¶ 5. Finding that Swift entered his guilty plea voluntarily, we find that his claims regarding the sufficiency of the indictment also fail to have merit. Our law is well settled in that “[a] valid guilty plea ... admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment [or information] against a defendant.” Kincaid v. State, 711 So.2d 873, 877(¶ 19) (Miss.1998) (quoting Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992)).

¶ 6. We find Swift’s argument devoid of any merit, as the transcript of the plea colloquy demonstrates that Swift freely and voluntarily entered his guilty plea with full knowledge that the indictment had been amended. Accordingly, we affirm the trial court’s dismissal of Swift’s motion for post-conviction relief.

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

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


author: GRIFFIS, J.,

text:
    The ESTATE OF Francis N. BURGESS, Sr., Deceased, by and through Dorothy F. BURGESS, duly appointed Executor, Francis N. Burgess, Jr., and Lula Burgess, Appellants v. H. Alex TROTTER, Appellee.
    No. 2007-CA-01266-COA.
    Court of Appeals of Mississippi.
    Dec. 9, 2008.
    Rehearing Denied April 14, 2009.

      Clay L. Pedigo, Jackson, attorney for appellants.

      Watts Casper Ueltschey, Sheldon G. Alston, Joseph Anthony Sherman, Jackson, attorneys for appellee.
    Before LEE, P.J., GRIFFIS and ROBERTS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Alex Trotter filed a complaint to quiet and remove clouds on title against adjoining landowners, Francis N. Burgess, Sr.; Francis N. Burgess, Jr.; and Lula Burgess. The Burgesses filed a counterclaim to quiet title and remove clouds on the same property. After the initial trial, the chancellor determined that Trotter owned the property in dispute and found that the ambiguously conveyed 140-yard strip of property should be located at the driveway of the Burgesses’ home thereby creating a right of access from the home to the Bolton-Brownsville Road.

¶ 2. The Burgesses then appealed. In Burgess v. Trotter, 840 So.2d 762 (Miss.Ct.App.2003) (“Burgess /”), this Court reversed and remanded the case for the chancellor to reconsider and determine: (1) the ownership of parcel two as shown on our attached exhibit, and (2) the location of the 140-yard strip mentioned in the 1941 deed because it had not been definitely located.

¶ 3. On remand, the chancellor found that Trotter owned parcel two and provided a definite legal description of the 140-yard strip located along the Burgesses’ driveway. It is from this judgment that the Burgesses now appeal. We find no error in the chancellor’s findings on remand and affirm.

FACTS

¶ 4. This controversy involves land located in the NW 1/4 of the SW 1/4 of Section 20, Township 7 North, Range 2 West, Second Judicial District, Hinds County, Mississippi. Stella V. Trotter is the common source of title for this land. In 1911, Stella V. Trotter and her husband, R.W. Trotter, conveyed by warranty deed the E 1/2 of the SW 1/4 and five acres off the east side of the W 1/2 of the SW 1/4 to W.S. Hendricks. Hendricks later conveyed this land to Emma Hardy in 1921. In 1927, Hardy conveyed this same and other land by warranty deed to A.L. Burgess.

¶ 5. The current dispute stems from the ownership of parcel two — the frontage property abutting the former Bolton-Brownsville Road. Our attached exhibit shows the location of both the former Bolton-Brownsville Road and the current Bolton-Brownsville Road. Both parties stipulated in a pretrial order that the Bolton-Brownsville Road was moved to its new location sometime prior to 1923.

¶ 6. In 1941, Stella V. Trotter and R.W. Trotter conveyed by warranty deed to A.L. Burgess the following property:

A narrow strip of land approximately 140 yards long, lying between the old and new Bolton and Brownsville Highway, and adjoining the land now owned by said A.L. Burgess, and being in the west half of the southwest quarter of Section 20, Township 7 in Range 2 West, containing one acre more or less.

¶ 7. In 1997, Francis Burgess, Sr. (“Burgess”), attempted to sell all of the Bur-gesses’ property in Hinds County except for his fenced homestead. After the land was surveyed, Burgess claims that he discovered for the first time that his property line was not the western border of parcel two at the old Bolton-Brownsville Road; instead, it was the western border of parcel one which lies east of the road. Trotter, however, testified in both trials that his family had always considered the Bur-gesses’ property to be east of the old Bolton-Brownsville Road.

¶ 8. Upon the parties’ claims to quiet title, the chancellor determined that Trotter owned most of the disputed property. She also found that the ambiguous language in the 1941 deed conveyed “a strip beginning at the [sjouth edge of the Burgess driveway running [e]ast over to the Burgess property” giving the Burgesses access across Trotter’s property to the new Bolton-Brownsville Road.

¶ 9. In Burgess I, this Court determined that the chancellor did not consider whether there was a mistake as to the ownership of parcel two. Further, the chancellor did not specifically locate the 140-yard strip described in the 1941 deed. Therefore, this Court reversed and remanded the case for the chancellor to reconsider and determine: (1) the ownership of parcel two and (2) the definite location of the 140-yard strip mentioned in the 1941 deed.

¶ 10. In the interest of clarity, before we delve further into the complicated facts of this appeal, we will now list the three relevant deeds and the corresponding land conveyed by each deed:

1911 deed: Conveyed the E 1/2 of the SW 1/4 and five acres off the east side of the W 1/2 of the SW 1/4 (this area includes parcel one on our exhibit, but it does not include parcel two). The legal description of the land conveyed in this deed is clear and unambiguous.
1927 deed: Conveyed to A.L. Burgess the exact property described in the 1911 deed.
1941 deed: Conveyed to A.L. Burgess a 140-yard strip of land, the location of which is at issue here because the legal description of the land conveyed is ambiguous. On remand, the chancellor determined this land was located along the Burgesses’ driveway. The Burgesses claim that it should be located at parcel three on our exhibit.

f 11. Attorney K.F. Boackle testified as a real estate expert on behalf of the Bur-gesses. Boackle opined that “the 1911 deed was intended to bring the then present Burgess land, which was [east of the old highway], over to the old Bolton-Brownsville Highway.” Boackle stated that the survey, which was conducted in 1997, revealed that the 1911 deed did not bring the Burgesses’ land over to the old highway; thus, he stated that Trotter had record title. However, Boackle opined that the Burgesses had equitable title based on an interpretation of the deeds. Boackle based his opinion on an old pin found by a surveyor that marked the southwest corner along the old road bed. He stated that the parties to the deed and them subsequent grantees were mistaken as to where the property line was actually located because they did not use professional surveyors. Thus, he believed that the 1927 conveyance was intended to extend the Burgesses’ property over to the old road.

¶ 12. Next, Boackle addressed the 1941 deed. He opined that the purpose of the 1941 deed was to extend the Burgesses’ property from the old road over to the eastern side of the new Bolton-Brownsville Road. Boackle’s interpretation of the 1941 deed gave the Burgesses 1.33 acres of land that would front the new Bolton-Brownsville Road (parcel three). He said that the eastern and western boundaries of this “strip” would be the old and new road. He determined that the northern boundary would be the half-section line and the southern boundary would be one of the fences that the surveyor testified was destroyed sometime after 1997. Boackle said that when he viewed the property he found wire in the trees where the fence was located on the survey. Boackle said that he rejected the 140-yard measurement in the deed in favor of the one acre because Mississippi law emphasizes quantity over distance. Boackle’s description, however, was 1.33 acres instead of one acre. Boack-le addressed this discrepancy by stating that the 1941 deed’s description calls for one acre more or less instead of one acre.

¶ 13. Attorney Si M. Bondurant was called as a real estate expert by Trotter. Bondurant opined that parcel two belonged to Trotter because:

the property has been described consistently, albeit there were certain errors that have been corrected, but the property has been consistently described as the east half of the southwest quarter and the east five acres of the west half of the southwest quarter which is an 85-acre contiguous tract and it is a clear and precise and unambiguous legal description that can be clearly located and identified.

Bondurant further opined that the only way to place ownership of parcel two in the Burgesses would be to reform the 1927 deed to provide for a different description. Bondurant, however, asserted that reformation was not necessary in this case because there was “no evidence of mutual mistake. Certainly not evidence beyond a reasonable doubt....”

¶ 14. Next, Bondurant gave his opinion regarding the 1941 deed. Bondurant agreed with Boackle that the description in the 1941 deed was ambiguous. Bondurant asserted that the property actually constituted one acre with the western boundary being the new Bolton-Brownsville Road, the northern boundary being the north line of the northwest quarter of the southwest quarter, the eastern boundary being the west line of the east two and a half acres, and the southern boundary being a far enough distance south to constitute one acre. Bondurant opined that the purpose of the 1941 deed was to convey a right of access along the Burgesses’ driveway to their homestead and their property.

¶ 15. Bondurant admitted that his description did not place the strip exclusively between the two roads. Instead, Bondu-rant’s description is a rectangle that follows the Burgesses’ driveway, which runs mainly east/west. He addressed this fact by stating that he had to harmonize all the descriptions in the deed. He reasoned that the deed said “lying between” and not “lying exclusively between” the two roads. Furthermore, he asserted that the property could not lie between the two roads and “join with the land owned by the Burgess-es,” because parcel two belongs to Trotter.

¶ 16. Bondurant admitted that his description does not give the Burgesses one acre of property between the two roads, but his description does constitute one acre. Furthermore on re-direct examination, Bondurant stated that if 1.33 acres could be considered more or less one acre, as claimed by Boackle, then the .67 acres between the two roads could be considered “more or less one acre.”

¶ 17. After the trial on remand, the chancellor again determined that Trotter owned parcel two, and she again located the 140-yard strip along the Burgesses’ driveway. She, however, did give the strip a definite description.

¶ 18. On appeal, the Burgesses argue that the chancellor erred by: (1) failing to follow the mandates of Burgess I, (2) analyzing whether or not there was a mutual mistake in the deed instead of a mutual mistake as to the location of the boundary line, (3) locating the 140-yard strip in the same area as she previously located it, (4) treating the Burgesses’ property as a monument of title in the 1941 deed, (5) relying on testimony that was barred by collateral estoppel, and (6) failing to consider testimony regarding the existence of certain fences.

STANDARD OF REVIEW

¶ 19. This Court will not reverse a chancellor’s determinations or findings when they are supported by substantial, credible evidence, unless the chancellor’s findings are an abuse of discretion, manifestly wrong, clearly erroneous, or the result of an erroneously applied legal standard. Jackson v. Peoples Bank and Trust Co., 869 So.2d 422, 423(¶ 5) (Miss.Ct.App.2004) (citing Rice v. Pritchard, 611 So.2d 869, 872 (Miss.1992)). Furthermore, we emphasize that “[i]t is not the job of this Court to redetermine questions of fact resolved by the chancellor.” Id. (citing Johnson v. Black, 469 So.2d 88, 90 (Miss.1985)).

ANALYSIS

I. Did the chancellor commit manifest error by not following Burgess I?

¶ 20. The Burgesses argue that the chancellor committed manifest error on remand by ignoring this Court’s directives in Burgess I. The Burgesses rely on the cases of G.B. “Boots" Smith Corp. v. Cobb, 911 So.2d 421 (Miss.2005) and Dunn v. Dunn, 695 So.2d 1152, 1155 (Miss.1997). In Dunn, the supreme court stated:

The mandate issued by an appellate court is binding on the trial court on remand. Where this Court has already decided a specific issue in a case on a prior appeal, the trial court has been found to be in error where, on remand, it has refused to follow this Court’s opinion and directions.

Dunn, 695 So.2d at 1155 (internal citations omitted).

¶ 21. The Burgesses also rely on California Co. v. State Oil & Gas Board, 200 Miss. 824, 848, 28 So.2d 120, 121 (1946), which states in pertinent part that “sometimes the Supreme Court reverses and remands cases with instructions, but such instructions are limited to matters necessary to implement the judgment of the Court, and in no sense of the word are, or should be, merely advisory.”

¶ 22. In their brief, the Burgesses quote at length from Burgess I. None of these quotes, however, constitute a mandate or a directive from this Court. Instead, this Court was merely attempting to explain why it was remanding this case for further fact-finding. The following excerpts are some of the language from Burgess I quoted in the Burgesses’ brief:

Ignoring the 140 yards of undirected distance, the language suggests that the entire property is between the old and new locations of the road, and that by lying there, it also borders the Burgess property. Without giving too much weight to the almost weightless, we conclude that the most natural reading of the deed language itself is consistent with the Burgess view that their family property historically bordered the old road.
Since we find the natural reading of the actual language is to define a tract that lay totally between the two roads and was contiguous to land then owned by Burgess, we examine the effect of each party’s argument about the deed’s meaning to see if either falls within these parameters.
In fact, we find that a quite credible interpretation of all the evidence, especially the conveyance in 1927 of a total of 5 acres, half in the forty[-]acre tract involved in this suit and the other half to the south, was that the Burgess family was to receive the land between their eastern property and the old road. No other plausible explanation for the 1927 conveyance of a pinched half[-]mile tract appears in the current record. Perhaps there is one, though.

Burgess I, 840 So.2d at 767-69 (¶¶21, 22, 30).

¶ 23. This Court may have suggested some possible conclusions; however, these suggestions should not be interpreted as usurping the role of the fact-finder. Further, we find that the only directives this Court gave to the chancellor were as follows:

We reverse and remand for reconsideration of the 140-yard strip because it has not yet been definitely located. We also reverse and remand the determination of the ownership of parcel 2 on our exhibit, which is the land between the old road and the eastern 2.5 acres of the NW 1/4 of SW 1/4, for reconsideration in light of this opinion.

Id. at 771(¶ 43). We find that the chancellor made findings as to these directives contained in Burgess I. Therefore, this issue has no merit.

II. Did the chancellor commit manifest error in determining the ownership of parcel two by analyzing a mutual mistake in the deeds instead of a mutual mistake by the parties as to the location of the boundary lines ?

¶ 24. In Burgess I, the Court found that the ownership of parcel two should be determined in order to understand the intention of the parties to the 1941 deed conveying the ambiguous 140-yard strip of land to the Burgesses, stating:

Obviously, the confusion about the 140-yard tract is significantly affected by the uncertainties of whether the parties believed at the time of the 1941 deed that the Burgesses owned all property east of the old road. What land the Burgess-es needed to be conveyed as a result of the movement of the road depends on what land they already owned.

Burgess I, 840 So.2d at 766(¶ 13).

¶ 25. The Burgesses do not dispute that Trotter holds record title to parcel two because the 1911 deed, and the subsequent 1927 deed conveying the same property, are unambiguous. Instead, they argue that the parties to the 1911 deed erroneously, and by mutual mistake, believed that the property conveyed in the 1911 deed included parcel two thereby bringing the western boundary line of the Burgess-es’ property over to the old Bolton-Brownsville Road. Again, it is clear that the legal description of the land conveyed did not include parcel two. The Burgesses merely claim equitable title to parcel two because the parties to the deed mistakenly believed parcel two to be included in the described land. They further argue that because the parties to the 1941 deed believed parcel two belonged to the Burgess-es, the 140-yard strip is located at parcel three — the area between the old Bolton-Brownsville Road and the new Bolton-Brownsville Road. Thus, they claim that because parcel two is the Burgesses’ property, parcel three comports with the language of the 1941 deed — it lies between the old and new Bolton-Brownsville Roads and connects with the Burgesses’ property.

¶ 26. The Burgesses claim that the chancellor erred on remand because she analyzed whether there was a mutual mistake in the deeds instead of whether there was a mutual mistake as to the location of the boundary lines. The Burgesses state in their brief: “Nowhere in the COA opinion was there an indication that the deed descriptions were faulty and needed reformation.” The Burgesses argue that there is a difference between a mutual mistake regarding the location of a boundary line and a mutual mistake in a deed description because only the mutual mistake in the deed description requires reformation.

¶ 27. Trotter counters by arguing that the Burgesses are trying to avoid the burden of proof for a reformation of a deed, which is proof beyond a reasonable doubt. Frierson v. Sheppard, 201 Miss. 603, 606-07, 29 So.2d 726, 727 (1947). Trotter asserts that the Burgesses’ testimony and evidence does not even come close to meeting this burden. Trotter further argues that “for purposes of record title, the alleged distinction between a mistake in the deed and a mistake in the location of property is merely semantics.”

¶ 28. As the Burgesses argue, upon remand, the chancellor was instructed to make findings related to possible mutual mistake as to the boundary locations — not mistakes contained in the deed language. This Court stated:

The chancellor’s findings did not address the matter of a potential mutual mistake at the time of the old deeds about the location of the east line of the quarter-quarter section. Neither is there discussion of what is fairly credible evidence that there were long-time fences. Instead, by relying on the survey platting of the deed descriptions, she found that Trotter owned everything except the east 2.5 acres in the disputed property, and the 140-yard strip.

Burgess I, 840 So.2d at 769(¶ 29). This Court further stated that “[t]he relief of reformation is not needed in order to use the concept of mistake when interpreting what [the 1941] deed was intended to accomplish.” Id. at 770(¶ 31).

¶ 29. Thus, we do not agree with Trotter’s argument that the difference between a mutual mistake as to the deed language and a mutual mistake as to the parties’ property boundaries is a matter of mere semantics. At times, the chancellor’s judgment on remand seems to confuse the issue of this distinction by stating:

... the Court of Appeals concluded that a factual finding was required on whether there existed mutual mistake in the deed description with respect to the location of the boundary of the old road bed.
In its opinion, the Court of Appeals ruled that in order to determine the location of the 140[-]yard strip a factual finding was required on whether there existed “mutual mistake” in the deed description with respect to the location of the 1927[d]eed boundary.
The Court [of Appeals] acknowledged that it is the chancellor’s decision to determine whether the presence of the physical fences and substantial circumstantial evidence submitted by [the] Burgesses[] proved that [there] was a mutual mistake in the deed.

(Emphasis added).

¶30. However, despite this somewhat confusing language, we find that the chancellor did make findings of fact as to the potential mutual mistake of the parties as to the location of the Burgesses’ property boundary. The chancellor heard testimony from competing expert witnesses. Boackle, the Burgesses’ expert, testified that parties to the 1927 deed and their subsequent grantees were mistaken as to the location of the property line because they did not use professional surveyors; thus, the parties intended that the deed extend the Burgesses’ property over to the old road.

¶ 31. Conversely, Bondurant, Trotter’s expert, opined that there was no mutual mistake between the parties to the 1927 deed. He testified that the deed descriptions were clear and that there was no evidence of any other intentions of the parties to the 1927 deed as to the location of the property conveyed in the deed. He found that there was insufficient evidence to show mutual mistake beyond a reasonable doubt.

¶ 32. The Burgesses are incorrect in stating that Burgess I never called for reformation of the deeds. While this Court did state, as to the 1%1 deed, “[t]he relief of reformation is not needed in order to use the concept of mistake,” the opinion went on to state that, because it was unclear as to whether the Burgesses’ property was contiguous to the old road, the case was remanded “so that the credibility and weight of the evidence about mistake can be determined.” Burgess I, 840 So.2d at 770(¶¶ 31-32). This Court then stated:

As to the principle of reformation, we note that a deed description that arises from a mutual mistake of the parties may be corrected. That a mistake existed must be proved beyond a reasonable doubt. McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992). There was substantial circumstantial evidence and also physical fences. Whether these proved a mutual mistake was for the chancellor to decide. If so, then a deed may be corrected to reflect what the parties intended, at the time.

Id. at (¶ 33) (emphasis added). Thus, it is clear that this Court was instructing the chancellor to weigh any evidence of mutual mistake in order that the 1911 and 1927 deeds could be reformed if, in fact, the parties were mistaken and believed that the deeds brought the Burgesses’ property-all the way west to the old Bolton-Brownsville Road.

¶33. We find that the chancellor addressed the issue of mutual mistake on remand. She heard conflicting expert testimony presented by each party. It was within her discretion to find that, on remand, the Burgesses failed to prove mutual mistake beyond a reasonable doubt. Therefore, this issue is without merit.

III. Did the chancellor commit manifest envr by locating the 1jO-yard strip in the same location as she did prior to the first appeal?

¶ 34. The Burgesses argue that the chancellor erred on remand by finding that the 140-yard strip described in the 1941 deed was located in the same place as stated in her initial opinion. They argue that in Burgess I, this Court specifically rejected this finding and instructed the chancellor to place this property in another location. They cite to Burgess I, stating:

Ignoring the 140 yards of undirected distance, the language suggests that the entire property is between the old and new locations of the road, and that by lying there, it also borders the Burgess property. Without giving too much weight to the almost weightless, we conclude that the most natural reading of the deed language itself is consistent with the Burgess view that their family property historically bordered the old road.

Burgess I, 840 So.2d at 767-68(¶ 21).

¶ 35. The Burgesses again take this Court’s previous opinion out of context. In the section of the opinion that they quote, this Court was attempting to analyze the natural language of the deed. The natural reading of the deed was then construed with each party’s explanation because it was impossible to harmonize the monuments, quantities, and distances listed in the ambiguous deed description. This Court further explained:

As to the 140[-]yard strip, the chancellor concluded that the strip of land could not just be between the two roads but had to go farther east to join the property then owned by A.L. Burgess. According to the language of the deed, the strip was between the roads but also had to join the property then owned by A.L. Burgess. Since there ivas no consideration of the principle of a mistaken and comctable descri.pti.on in the deeds, the possibility that the A.L. Burgess property did actually join the old road was not analyzed. In fact, we find that a quite credible interpretation of all the evidence, especially the conveyance in 1927 of a total of 5 acres, half in the for-tyHacre tract involved in this suit and the other half to the south, was that the Burgess family was to receive the land between their eastern property and the old road. No other plausible explanation for the 1927 conveyance of a pinched half[-]mile tract appears in the current record. Perhaps there is one, though.

Id. at 769(¶ 30) (emphasis added).

¶ 36. In Burgess I, this Court attempted to clarify the issues for the chancellor. However, no portion of the chancellor’s prior order was reversed and rendered. Instead, the case was remanded for further fact-finding by the chancellor because this Court opined that there were potential explanations for the conveyances in 1927 and 1941 other than those described in Burgess I. Furthermore, the case was remanded so the chancellor could make a definite description for the 140-yard strip. There was no mandate that the chancellor should situate the 140-yard strip in a different location. Accordingly, this issue has no merit.

TV. Did the chancellor commit manifest error in her use of monuments of title?

¶ 37. The Burgesses believe that the chancellor erred in her analysis of the 1941 deed because she misused the language in the 1941 deed. They argue that she used “the land now owned by said A.L. Burgess,” as a monument of title. They assert that a monument of title cannot be a piece of land; therefore, the chancellor committed manifest error in her analysis.

¶ 38. The fact that the chancellor referred to “the land now owned by said A.L. Burgess” as a monument is at best a mistake of form and not of substance because our case law allows chancellors to use certain and dependable descriptive items in a deed to construe the deed as a whole. One of our rules of deed construction states:

those parts which are the more certain and dependable as descriptive items will interpret those items which are the less certain and dependable, and, when it is necessary in order to satisfy and harmonize all items, the more certain will, if reasonably possible, draw to themselves those that are the less certain....

S. & S. Dragline Serv., Inc. v. Baker, 400 So.2d 930, 933 (Miss.1981) (citation omitted). Furthermore, our supreme court has stated that “[a] deed .... may constitute a sufficient description of the land conveyed to state that it is bounded by or adjoining lands belonging to named persons.” Humes v. Krauss, 221 Miss. 301, 317, 72 So.2d 737, 742 (1954) (quoting Thompson on Real Property, Vol. 6, pp. 473-74). Thus, we find that, although the chancellor referred to A.L. Burgess’s land as a monument, she did not err because adjacent land, like a monument, can be used to give meaning to an ambiguous deed description. The chancellor found that the western border of the land owned by A.L. Burgess in 1941 was the western edge of parcel one on our map; therefore, she did not err in using this boundary line to add meaning to the 1941 deed. Accordingly, this issue has no merit.

V. Did the chancellor commit manifest error by relying on Trotter’s testimony because it was barred by collateral estoppel?

¶ 39. The Burgesses argue that the chancellor erred by relying on the testimony of Trotter because it had been substantially impeached and was barred by collateral estoppel. Specifically, the Bur-gesses assert that the chancellor relied on Trotter’s testimony that certain fences mentioned during the Burgesses’ case never existed. Furthermore, the Burgesses argue that the issue of the location of the fences and the western boundary line of their property had already been litigated. In an unrelated case involving Allen E. Davis, Wilburn Burgess, Bobbie D. Burgess, and Trotter, the chancellor found: “The evidence established that Alex Trotter tore down and removed the existing fence which was maintained by the Davis’ [sic] predecessor in interest as the boundary line between the Burgess and Trotter [p]roperty.” Therefore, they argue that the concept of collateral estoppel applies.

¶ 40. The Burgesses did not properly preserve the issue of collateral estoppel for appeal. The Burgesses did not object to Trotter’s testimony during trial as being barred under a theory of collateral estop-pel or move for summary judgment under the theory of collateral estoppel. “[W]e need not consider matters raised for the first time on appeal, which [in] practice would have the practical effect of depriving the trial court of the opportunity to first rule on the issue, so that we can then review such trial court ruling under the appropriate standard of review.” Alexan der v. Daniel, 904 So.2d 172, 183(¶ 26) (Miss.2005). Therefore, we find that this issue is procedurally barred.

¶41. Procedural bar aside, we do not believe that the Burgesses’ argument has merit. The supreme court has stated that “collateral estoppel is applicable, and the parties to an action will be precluded from relitigating a specific issue, which was: (1) actually litigated in the former action; (2) determined by the former action; and (3) essential to the judgment in the former action.” In re Estate of Stutts v. Stutts, 529 So.2d 177, 179 (Miss.1988). We do not have the necessary information in the record required to apply collateral estoppel. We cannot tell: (1) whether the fences relevant to this appeal are the same fences discussed in the order, (2) whether the land in this case is the same land involved in the order, (3) whether this order involved the same specific issues involved in this case, (4) whether this order determined any of the same issues that were involved in this case, and (5) whether these issues were essential to the former order if they were the same issues as in this case. Because the Burgesses have failed to properly plead collateral estoppel, we find that this issue has no merit.

VI. Did the chancellor abuse her discretion in her consideration of the existence or non-existence of alleged fences?

¶ 42. At the trial on remand, Joan Vick-ers Garret, the Burgesses’ real estate agent, testified that she saw a cross-fence when she walked the Burgesses’ property. She said that she believed that this fence separated the Burgesses’ property from Trotter’s property and that it ran from the old Bolton-Brownsville Road to the new Bolton-Brownsville Road. She also testified that after the attempted sale of the land she saw bulldozers pushing down fences on the disputed property. W.C. Alderman, the surveyor who conducted the Burgesses’ surveys, stated that during his first survey in 1997 he used various fences and iron corner pins to orientate himself while he was surveying. He testified that during his second survey these pins and fences were destroyed, and a new fence had been erected.

¶ 43. The Burgesses’ final argument is that the chancellor abused her discretion by ignoring evidence that there was a boundary-line fence along the eastern side of the old road, which Trotter had destroyed after the 1997 survey. Furthermore, they say that the only evidence that this fence did not exist was the substantially impeached testimony of Trotter, to which they believe the chancellor gave great weight.

¶ 44. However, we fail to find evidence of the chancellor’s reliance on Trotter’s testimony regarding the fences. The chancellor stated:

In support of their claim for “mutual mistake,” the Burgesses reference their alleged uncontested possession of the disputed property. The Burgesses assert that fences delineating Parcel 2 and the uncontested peaceful possession of Parcel 2 for over 50 years by the Bur-gesses is proof beyond a reasonable doubt that Parcel 2 belongs to the Burgess family. Even if possession evidence were relevant evidence for a cause of action for mutual mistake, the claims of adverse possession have already been litigated by this Court [and the Mississippi Court of Appeals].

In the pretrial order, the Burgesses agreed that the 1927 deed was unambiguous on its face. Therefore, the chancellor found that the parties could not be “operating under mutual mistake.” She did not consider the fences as evidence of possession, as the Burgesses’ claims of adverse possession had already been fully litigated.

¶ 45. The chancellor did not ignore the Burgesses’ evidence regarding fences. In her order, she acknowledged the evidence regarding the fences. She, however, chose to place little weight on this evidence and relied on the unambiguous 1927 deed instead. The supreme court, in analyzing a case similar to this one, stated:

If the appellants were unable to provide sufficient evidence of the [parties’] intent regarding the division of the [property], the trial court was left only to consider whether the deeds in question were ambiguous enough to mask what could have been the real intent of the parties and therefore eligible for reformation. Yet, ... the appellants do not allege any of the deeds in question contain ambiguous language. As such, the trial court was precluded from reforming the deeds on the ground that the deeds suffered from ambiguous language.... Simply put, the appellants failed to prove to the satisfaction of the chancellor beyond a reasonable doubt that the deeds in question were a product of mutual mistake reformation. We cannot conclude the trial court’s findings of fact were manifestly wrong.

McCoy v. McCoy, 611 So.2d 957, 961 (Miss.1992) (internal citations omitted). Like the McCoy court, we cannot find that the chancellor’s findings of fact were manifestly wrong. Therefore, we find that this issue has no merit.

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

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

      . In this Court's previous opinion, a plat was attached for clarification. Burgess I, 840 So.2d at 773. We will use that same plat for additional clarity in this opinion. Furthermore, we recognize that none of the deeds in this case contain a reference to "parcel two.” Instead, this was a creation of the courts to simplify the issues in this case. Parcel two is in fact the land between the old Bolton-Brownsville Road and parcel one (the eastern 2.5 acres of the NW 1/4 of the SW 1/4 of Section 20, Township 7 North, Range 2 West, Second Judicial District, Hinds County, Mississippi). The parties stipulated that the Bur-gesses own parcel one.

      . The 1927 deed to A.L. Burgess actually described the land as the E 1/2 of the SW 1/4 and five acres off the east side of the W 1/2 of the SE 1/4. However, the chancery court previously determined that this description erroneously conveyed five acres off the east side of the W 1/2 of the SE 1/4, and the chancellor determined that this deed, like the 1911 deed, actually conveyed five acres off the east side of the W 1/2 of the SW 1/4.

      . In this Court's previous opinion, the Court was under the belief that the road was moved in 1939. Burgess I, 840 So.2d at 765(¶ 6).

      . In the prior appeal, this Court also upheld the chancellor’s determination that the Bur-gesses had not adversely possessed the property because neither party had proven exclusive use. Burgess I, 840 So.2d at 770-71 (¶¶ 35-36). Thus, adverse possession is not an issue in this appeal.

      . Commencing at a found 5/8" rebar accepted as the NW corner of the SW/4 of Section 20, Township 7 North, Range 2 West, Hinds County, Mississippi and run thence S89°57T0" E for a distance of 1026.69 feet to a set 1/2" iron pin on the northeasterly right-of-way line of Bolton-Brownsville Road, as now laid out and in use and the Point of Beginning of the herein described parcel; from said Point of Beginning run thence S89°56'31" E leaving said right-of-way for a distance of 222.61 feet to set 1/2" iron pin; run thence S00°01'04" for a distance of 239.13 feet to a set 1/2" iron pin; run thence West for a distance of 156.77 feet to a set 1/2" iron pin on the aforementioned northeasterly right-of-way line of Bolton-Brownsville Road; Run thence along said right-of-way lien with the arc of a curve to the left for a distance of 250.02 feet having a radius of 602.95 feet and a chord bearing and distance of N15°21'45" W 248.23 feet to the Point of Beginning, containing 1.00 acre, more or less.

      . During cross-examination, Trotter's attorney continuously objected to the Burgesses’ questioning of Trotter because he said the previous litigation involved a different tract of land, which was south of the land at issue in this case.