author: BARNES, J., LEE, P.J.,

text:
    David Hardin DOYLE, Appellant v. Karen Phyliss DOYLE, Appellee. David Hardin Doyle, Appellant v. Karen Phyliss Doyle, Appellee.
    Nos. 2007-CP-01925-COA, 2008-CP-01927-COA.
    Court of Appeals of Mississippi.
    Aug. 17, 2010.
    Rehearing Denied Nov. 23, 2010.
    Certiorari Denied March 10, 2011.

      David Hardin Doyle, appellant, pro se.
    James D. Minor, Oxford, attorney for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   BARNES, J.,

for the Court:

¶ 1. The Chancery Court of DeSoto County granted Karen Doyle a divorce from David Doyle on the ground of habitual cruel and inhuman treatment and made certain determinations regarding the distribution of marital property. When David failed to perform the actions ordered by the divorce decree, the chancery court granted Karen’s motion for citation of contempt. David appeals both the judgment regarding the property division and the final order of contempt, raising several issues on each matter. The two appeals were subsequently consolidated. Finding no error in either judgment, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. David and Karen were married in November 2003. No children were born of the marriage. David worked as a counsel- or for the small business center at Southwest Tennessee Community College in Memphis, Tennessee, and Karen was a homemaker who ran a fragrance-products business, Adam’s Ant Imports, out of the marital home. Karen testified that David also wrote business plans for small businesses, charging $2,500 for each plan. Karen also received social-security benefits for a disability. When they separated in January 2006, the couple resided in the marital home in Olive Branch, Mississippi.

¶ 3. David filed for divorce based on habitual cruel and inhuman treatment and irreconcilable differences. He requested ownership of the marital home and its furnishings and equitable division of certain marital property. Karen filed a counter-complaint for divorce on the grounds of habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. She requested alimony, certain marital property, and attorney’s fees.

¶ 4. Two hearings were held on the matter in May and August 2007, respectively. On August 2007, the chancellor issued a ruling from the bench granting Karen a divorce based on habitual cruel and inhuman treatment; a decree to this effect was entered on September 24, 2007. The chancellor divided the parties’ property into marital and non-marital assets. Karen’s non-marital property included a residence in Memphis, an automobile, all assets from Adam’s Ant Imports, and various personal property specifically listed in the decree. The chancellor ordered David to deliver these specific items to Karen’s residence in Memphis within ten days of the entry of the decree. David’s non-marital property included real and personal property inherited from his mother, who passed away during the marriage, and balances on all retirement accounts acquired prior to the marriage.

¶ 5. The chancellor deemed the marital home in Olive Branch a marital asset. Additionally, she found all of the household furnishings acquired by the parties subsequent to the marriage located within the marital home to be marital property, including furniture which had been destroyed by David shortly after the couple’s separation. The chancellor valued this furniture at $7,000. Other marital property included a 2002 Infiniti automobile, a riding lawn mower the court valued at $3,000, a 2005 federal income tax refund, and David’s retirement account related to his employment at the community college, and any appreciation of other retirement accounts owned by him prior to the marriage.

¶ 6. Addressing the Ferguson factors for equitable distribution of the marital assets, the chancellor found that while David had a larger income than Karen during the marriage, Karen contributed equally as a homemaker and through her social security disability benefits. Also, testimony showed Karen’s business produced approximately $20,000 per year in income. The chancellor did not find that there had been any distribution of the marital assets, with the exception of the destroyed marital furniture. The chancellor explained that she was attempting to make a distribution that minimized tax consequences, periodic payments, and other potential sources of friction between the parties. She also acknowledged that the testimony by the parties on various matters was so “far apart” that there were obviously some “blatant lies” made by both parties.

¶ 7. After fully addressing each Ferguson factor, the chancellor divided the marital property. The marital residence in Olive Branch was to be sold, with each party receiving one-half equity from its sale. David was awarded the 2002 Infiniti automobile and any debt related to it. The court awarded Karen $2,500, which represented one-half of the equity in the 2002 Infiniti. Karen was awarded $7,500 of David’s retirement accounts, which included her share of the community college fund and any appreciation of other retirement accounts subsequent to the marriage. The chancellor stated David could either pay this amount to Karen in a lump-sum payment or through a Qualified Domestic Relations Order (QDRO). The court also awarded Karen the full value of the marital furnishings (both destroyed and remaining), or $7,000, and $300 as compensation for furniture belonging to her grandchild that was also destroyed by David. David was ordered to provide copies of the 2005 federal income tax return and pay Karen fifty percent of the refund. Finally, Karen received $1,000 for equity in the marital lawn mower. All of the payments were ordered to be made within thirty days from the entry of the decree.

¶ 8. Further, the court found that more than $30,000 on Karen’s credit cards was marital debt and that David should reimburse Karen $15,000, either as a lump-sum payment within thirty days of the entry of the decree or at a rate of $1,500 per month until paid. The court also ordered David to continue to provide Karen with health insurance for one year either through their current policy or through COBRA. The chancellor fully addressed the Armstrong factors for alimony. Neither party was awarded alimony, and both parties were responsible for their own attorney’s fees. David timely filed his appeal of this judgment.

¶ 9. In January 2008, Karen filed' a motion for citation of contempt, as David had not complied with the September 2007 decree and had appealed without requesting a supersedes bond. Karen contended that David had failed to perform any of the financial obligations ordered, had not delivered the non-marital personal property, and had made no effort to put the marital home on the market. She also requested related expenses and fees for the contempt matter. After a hearing on the motion, the chancellor entered a writ of assistance in order for Karen to obtain her possessions from the marital household which David had not returned to her. Additionally, the chancellor granted Karen’s motion, finding David in willful contempt of the September 2007 divorce decree.

¶ 10. Also, determining that David had sufficient means to pay the sums previously ordered at the time of the decree, the chancellor ordered David to report to the court three days later, and if he had not paid the sum of $28,552 by that date, plus one-half of the income tax refund, and provided health insurance for Karen, he would be incarcerated in the DeSoto County Jail. David was also to continue to try and sell the marital home as previously ordered and report his progress to the court in June 2007.

¶ 11. When David reported to the court on March 7, 2008, the chancellor found that he still had not made a good-faith effort to comply with the court’s prior orders; so she ordered him incarcerated. Further, the chancellor ordered David to pay all of Karen’s reasonable and necessary medical expenses for twelve months beginning in March 2008, for one year, in lieu of providing her health insurance. Other matters, such as Karen’s reimbursement for certain personal items in the writ of assistance, which were not returned by David, and fees and expenses for the motion for contempt, were taken under advisement by the court.

¶ 12. Approximately ten days later, the chancellor ordered David released from jail, as he had paid $15,000 on the judgment. He was ordered to report to the court in May 2008 to assess his compliance with the other provisions of the court’s orders and to pay the balance of his ar-rearage. On October 21, 2008, the chancery court entered an order nunc pro tunc to August 27, 2008, finding: the remainder of David’s share of the credit-card balance, $6,000, was due; Karen should be awarded a judgment of $3,000 for clothing and personal property not returned to her by David, as well as a judgment of $3,000 as reimbursement for her attorney’s fees for this proceeding; and since David did not obtain health insurance for Karen, he was ordered to pay Karen $4,559.40, which represents the yearly premium for a health-insurance plan Karen presented to the court. Therefore, Karen was awarded a judgment of $16,559.40 by this order, plus the $28,552 found to be owing from the March 7 order, totaling $45,111.40. However, since March 7, the court found David had paid a total of $21,500, leaving a balance of $24,111.40, which David was ordered to pay. Additionally, the chancellor found David in contempt for not having made a good-faith effort to list the marital house for sale; therefore, the chancellor ordered that the house be listed for sale with a real-estate agency immediately. Lastly, David was ordered to transfer $7,500 by a QDRO as previously directed, with the total balance due on the judgment reduced by this amount. David timely filed his appeal of the October 2008 order.

ANALYSIS

¶ 13. This appeal is a consolidation of two matters: property distribution and contempt of court; therefore, we shall discuss each matter separately.

I. Property Distribution

¶ 14. David contests several of the chancellor’s determinations regarding the distribution of the marital property. David contends the chancery court erred by failing to apply the Ferguson factors properly. We shall discuss each of his contentions in turn.

¶ 15. This Court’s standard of review is extremely limited as to property division and distribution in divorce cases. Bowen v. Bowen, 982 So.2d 385, 394 (¶ 32) (Miss.2008). It is well established that “the chancellor’s division and distribution will be upheld if it is supported by substantial credible evidence.” Id. However, this Court will reverse the chancellor’s decision if it is found to be “manifestly wrong, or that the court applied an erroneous legal standard.” Id. at (¶ 33).

¶ 16. The first step in equitable distribution of marital property is for the chancellor to determine whether the parties’ assets are marital or non-marital. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). Assets accumulated during the marriage are considered marital assets and are subject to equitable distribution by the chancellor. Stewart v. Stewart, 864 So.2d 934, 937 (¶ 12) (Miss.2003). For divorce purposes, economic, domestic, or other contributions and efforts of the marital partners is of equal value. Id. Further, separate property that commingles with the joint marital estate will become marital property subject to equitable distribution. Johnson v. Johnson, 650 So.2d 1281, 1286 (Miss.1994). Non-marital assets, such as inheritances, can become converted into marital assets if they are commingled with marital property or utilized for domestic purposes. Boutwell v. Boutwell, 829 So.2d 1216, 1220 (¶ 14) (Miss.2002).

¶ 17. The second step is for the chancellor to divide equitably the marital assets according to the factors set out by the supreme court in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). These factors are:

1. Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
. 5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Id. The chancellor need not make findings regarding each Ferguson factor but may consider only those factors “applicable” to the property in question. Sproles v. Sproles, 782 So.2d 742, 748 (¶25) (Miss.2001) (citing Weathersby v. Weathersby, 693 So.2d 1348, 1354 (Miss.1997)).

¶ 18. We find that the chancellor properly considered and applied the Ferguson factors to each of the following contested rulings.

A. Automobile

¶ 19. David first argues that the chancellor erred in awarding Karen $2,500 for equity in the 2002 Infiniti automobile, which was classified as marital property. The automobile was purchased during the marriage and registered in both parties’ names. The chancellor ruled that David would receive possession of the vehicle, but Karen would receive half of the equity in it. David, however, complained that the chancellor ignored his testimony that his 8.05 financial statement was inaccurate due to a typographical error omitting a minus sign, and there was not actually $5,000 in equity in the vehicle, but a $5,000 deficit.

¶ 20. We note that David’s 8.05 statement shows the value of the vehicle at $23,000 and the loan balance at $28,000, which could indicate a $5,000 deficit. However, David’s 8.05 statement, which he executed under oath, clearly reports that there is $5,000 in equity in the automobile, and Karen testified this was correct. The automobile’s value of $28,000 is listed as an “estimate.” Further, there was no third-party documentation presented during the proceedings to show what the equity or value of the automobile was, that the 8.05 statement was incorrect, and that there was a $5,000 deficit on the automobile loan. David provides no Kelley Blue Book value for the automobile or documentation on the balance of the loan. David makes reference to an “amended” 8.05 statement, which corrected the error, but there is no such document in the record before us. This Court may not act upon statements in briefs or arguments that are not reflected in the record, but we must confine ourselves to what is contained in the record. Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973).

¶ 21. In making her ruling, the chancellor did not ignore David’s testimony that the 8.05 statement was incorrect, but she explained that the information the parties provided was all she had to refer to, even if it was inaccurate. While there was obviously some error on the face of David’s 8.05 statement concerning the automobile, the error could have been in the automobile’s estimated value at $23,000 rather than the amount of equity. Karen testified that half the equity in the vehicle totaled $2,500. While it would have been preferable for the parties to have presented documentary evidence to support their estimates of the value of the automobile, we cannot find that the chancellor erred in accepting Karen’s testimony on this disputed issue of fact. Accordingly, we affirm.

B. Furniture

¶22. Next, David contests the chancellor’s award of $7,300 to Karen for her share of the marital furniture. David admitted that he had destroyed the marital furniture by slashing gashes in upholstery and cárving his initials and name in wooden pieces in order to force Karen to leave the marital home in January 2006. Karen entered photographic evidence of the destroyed furniture as well. During the incident, the police were called to the marital home, and David was arrested for domestic disturbance. The chancellor awarded Karen $7,000 for the marital furniture and $300 for her grandchild’s baby furniture, which was at the marital home and destroyed by David.

¶ 23. David testified that the value of the marital furniture was approximately $6,000 to $7,000, while Karen testified it had a “replacement value” of $20,000. A receipt was entered into evidence showing that Karen had purchased the furniture at an outlet store in October 2004 for $2,800, and it had a retail value of approximately $4,200 at that time. Karen testified that the furniture is no longer manufactured by Lane, so it cannot be replaced; however, she contended that to purchase furniture with comparable leather, the sectional alone would cost $6,500. David claims the furniture was delivered to Karen’s residence in Memphis and not the marital home; however, there is no evidence in the record supporting this claim. Karen also testified that it cost her $300 to replace the grandchild’s furniture. We find no error in the chancellor’s determination that David purposefully destroyed marital assets and, thus, Karen should be awarded $7,000 in order to replace the marital furniture and $300 for her grandchild’s furniture.

¶24. Although David does not raise this as a separate issue but includes it in his argument on the furniture, David claims that the chancellor ignored his testimony that Karen fraudulently obtained the proceeds of the sale of his deceased mother’s home of approximately $79,000 and deposited it in her Adam’s Ant account to pay off credit-card debt and purchase the abovementioned furniture. He argues that the chancellor should have taken this conduct into account regarding the furniture. We find this argument without merit as well.

¶ 25. It is true that David introduced evidence that Karen endorsed the $79,000 check and also signed David’s name on it and deposited it in the Adam’s Ant account in October 2005. Karen contends that when David’s mother passed away in August 2005, David inherited $100,000 in CDs which he “cashed in,” and a house, for which he received $82,000. The $79,000 check came from the sale of the house. Karen stated that she deposited it in the joint Adam’s Ant account, and since David is president of that company, the funds were commingled and, thus, marital.

¶ 26. The chancellor rejected Karen’s contention, as do we. Because David immediately obtained a “stop-payment” on the check once he realized Karen had deposited it in the Adam’s Ant account, requested a replacement check, and deposited it in his personal account, the inheritance funds were not commingled with marital funds; thus, they were not marital property. However, we find no evidence in the record that Karen purchased the furniture with David’s inheritance funds and, thus, “defrauded” him. We find no error with the chancellor’s ruling on either the furniture or David’s inheritance funds.

C. Lawn Mower

¶ 27. David argues that the chancellor erred in awarding Karen $1,000 in equity for the lawn mower. He claims the mower, which he valued at $3,000 on his 8.05 statement, was financed solely by him and, thus, is not marital property, as Karen had her own lawn mower for her separate residence in Memphis, which was listed on her 8.05 statement. David testified that he purchased the mower in April 2006, after the parties separated, but before they divorced.

¶ 28. While there was no testimony about whether the subject lawn mower was used at the marital home, it was purchased when the parties were still married, and David’s only residence was the marital home. The supreme court has held that “[a] spouse who has made a material contribution toward the acquisition of property which is titled in the name of the other may claim an equitable interest in such jointly accumulated property incident to a divorce proceeding.” Ferguson, 639 So.2d at 935 (quoting Jones v. Jones, 532 So.2d 574, 580 (Miss.1988)). We find substantial evidence in the record to indicate that the lawn mower was marital property. Therefore, we find no error with the chancellor’s ruling on the lawn mower.

D. Creditr-Card Debt

¶ 29. Next, David argues that the chancellor erred in ordering him to pay Karen $15,000 for credit-card debt. The chancellor found more than $30,000 of marital debt was incurred on Karen’s credit cards and ordered David to pay half of it. David claims the evidence in the record is misleading — Karen’s credit-card debt was not marital debt but was in the name of her business, and once married, she transferred the debt to her personal name. He now complains that no receipts were entered into evidence showing the types of charges made to her credit cards, and if there had been, the court would have discovered the charges were not marital debt.

¶ 30. At the divorce hearing, David admitted that while he did not know where Karen’s credit-card debt came from, it did arise during the course of the marriage. David claimed that some of the debt originated from Karen’s putting her relatives’ and son’s bills on her credit cards. He also claimed that she moved balances around so it was impossible to distinguish what debt was marital and non-marital. David, however, did not provide the chancery court with any documentary evidence to support his contentions.

¶ 31. Karen introduced her credit report from 2003, before she and David married, which showed an insignificant amount of credit-card debt. At the time of the divorce hearing, she testified that there was $98,000 in credit-card debt — $40,000 was debt incurred during the marriage because David insisted she pay the shortfall of their monthly budget with her credit cards since she had good credit. Karen also claimed she incurred $48,000 in debt to maintain her everyday needs since the couple had separated. Additionally, Karen testified she made a total of $46,700 in credit-card payments by borrowing against other credit cards. She requested David reimburse her for half of this sum, or approximately $23,350.

¶ 32. There was substantial evidence introduced that the charges on Karen’s credit cards were for marital expenses, such as bills, and David did not present any evidence to refute it. The supreme court and this Court have upheld similar rulings where separately held credit-card balances were included in the equitable distribution of marital debt even when one spouse had not made regular payments, but the charges were for goods for the marital dwelling. See Bullock v. Bullock, 699 So.2d 1205, 1212 (¶ 31) (Miss.1997); Prescott v. Prescott, 736 So.2d 409, 418 (¶ 48) (Miss.Ct.App.1999). Similarly, here, Karen testified that the debt was for payment of household bills, at the direction of David. Accordingly, we find no error in the chancellor’s ruling on the credit-card debt.

E. Income-Tax Refund

¶ 33. David argues the chancellor erred in requiring him to pay fifty percent of the 2005 federal income-tax refund. He notes it was filed “married filing single,” and no deductions were taken for Karen or her assets. Also, while a deduction was taken for the marital home, David claims that the mortgage was only in his name and that he made all the payments. Karen testified she thought she was entitled to half of the refund because in 2005 she was contributing to the household income and paying bills with her credit cards. The chancellor found the refund was a marital asset; thus, Karen should be entitled to half of it. We find no error.

F. Health Insurance

¶ 34. David disagreed with the chancellor’s ruling that he should have to provide Karen with health insurance for one year. He claims that since Karen receives social-security benefits, she is eligible for Tenn-Care medical benefits, a state health-insurance plan in Tennessee, which would provide better benefits than he could. He contends the chancellor’s ruling is punitive, redundant, and amounts to a redistribution of non-marital assets.

¶ 35. Proof was introduced that Karen was receiving social-security benefits at the time of the divorce hearings. Additionally, she testified she had recently had an abnormal mammogram. Because of the disparity in the parties’ income and Karen’s health issues, the chancellor ruled that while she normally did not make an alimony award at the end of such a short marriage, here she would require David to provide Karen with health insurance for one year either through the same marital policy, COBRA, or a substantially similar policy. At the contempt hearing, Karen explained that she had not been eligible for Tenn-Care while married to David because she was under his employer’s policy. We note the chancellor’s decree did not specify which carrier provided Karen health insurance, but David was to provide it, not Karen. We find no error in the chancellor’s ruling regarding Karen’s health insurance. Additionally, we find no merit to David’s argument that this ruling is a redistribution of non-marital assets.

G. Marital Residence

¶ 36. David’s next argument is that the chancellor erred in ordering him to sell the marital residence and pay one-half of the equity to Karen. He requested exclusive possession and ownership of the marital home in his complaint for divorce. On appeal, David reasoned that because of the poor real-estate market, the value of the house had declined below the purchase price, from approximately $400,000 to $395,000. Further, he claimed that $398,000 is owed on the mortgage; thus, it would actually cost both parties approximately $10,000 to sell the house with real-estate fees, but excluding closing costs. David also notes Karen’s name is not on the mortgage. He further complains that he was not awarded any equity in Karen’s residence in Memphis, where he had made significant home improvements.

¶ 37. Testimony showed David and Karen purchased the marital home in Olive Branch in November 2004, after they had been married one year. Both of the parties have lived at the marital home. The property’s deed was not entered into evidence, but David introduced an appraisal dated June 2007 he obtained, which showed the property’s “market value” was $395,000. David added that many of the homes in the neighborhood were in foreclosure. Karen estimated that the houses in the neighborhood were valued between $350,000 to $600,000, and their residence’s value was approximately $450,000, with $40,000 to $50,000 in equity. Karen did not list the home as an asset on her 8.05 statement, but requested half of the equity at the divorce hearing. David’s 8.05 statement, dated May 2006, valued the home at approximately $419,000, with $20,000 in equity.

¶ 38. The chancellor stated that because of the various figures given about the value of the marital residence and its equity, the parties would place the residence on the market immediately and split any proceeds equally. The chancellor also found that Karen’s residence in Memphis was not marital property as it had been acquired before the marriage, and even though David lived there briefly while they were married, Karen alone continued to pay the mortgage, taxes, and insurance on the home with her social-security benefits. We find substantial evidence to support the chancellor’s ruling regarding the marital home.

H. David’s Retirement Accounts

¶ 39. David argues the chancellor erred in awarding Karen $7,500 in equity in his Southwest Tennessee Community College retirement account. David contends that Karen is not entitled to these funds as they were married only a short time, and she has her own retirement benefits through social security. He also asserts that the chancellor’s award was not precisely calculated.

¶ 40. David did not list any retirement accounts on his 8.05 statement, but at the divorce hearing, he admitted that he had two retirement accounts. He testified to approximately $23,000 in his Southwest Community College retirement account at the time of the divorce hearing, with approximately $13,500 accumulated during the marriage. Additionally, he had approximately $18,000 in another retirement account. Further, David testified he was scheduled to begin receiving $4,000 per month in two years from his military pension. The chancellor explained she was awarding Karen $7,500 of the community college retirement account, which was a little over half of what David testified accumulated during the marriage, in order to offset any increase in appreciation during the marriage of the other non-marital account.

¶41. We find no error with this ruling. It is well established that retirement funds accumulated during the marriage are personal property subject to division at divorce. Brown v. Brown, 574 So.2d 688, 690 (Miss.1990). Additionally, it has long been recognized, in relation to retirement funds and pensions, that the chancery court has the “authority, where the equities so suggest, to order a fair division of property accumulated through the joint contributions and efforts of the parties.” Id. However, spouses will not be automatically entitled to an equal division of jointly accumulated property. Id. at 691 (citing Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986)). Instead, it is at the chancellor’s discretion, taking into account equities, relevant facts, and circumstances. Id.

¶ 42. Here, the chancellor found that David’s and Karen’s contributions to the marriage were equal, even though Karen was a homemaker and David made substantially more income than Karen. While their marriage was short, the chancellor only awarded Karen a portion of David’s retirement accounts that had accumulated during the marriage. The chancellor did not abuse her discretion. This issue is without merit.

II. David’s Contempt

¶ 43. Next, David raises four issues regarding the contempt proceedings. We shall discuss each issue in turn.

¶ 44. “Contempt matters are committed to the sound discretion of the trial court.” Weston v. Mounts, 789 So.2d 822, 826 (¶ 17) (Miss.Ct.App.2001) (citing Caldwell v. Caldwell, 579 So.2d 543, 545 (Miss.1991)). The reviewing court will not reverse the chancellor’s findings if they are supported by substantial credible evidence. Id. A citation for contempt is proper when “the contemner has willfully and deliberately ignored the order or the court.” Id. at 826-27 (quoting Bredemeier v. Jackson, 689 So.2d 770, 777 (Miss.1997)). This Court will defer to the chancellor’s ability to view the witnesses, determine their credibility, and review the exhibits before the chancery court. Stribling v. Stribling, 960 So.2d 556, 559 (¶ 7) (Miss.Ct. App.2007) (citing Wesson v. Wesson, 818 So.2d 1272, 1279 (¶20) (Miss.Ct.App.2002)). The Court will only interfere with the chancellor’s findings of fact if we are convinced that the chancellor substantially abused her discretion. Ewing v. Ewing, 749 So.2d 223, 224-25 (¶ 5) (Miss.Ct.App.1999) (citing Rakestraw v. Rakestraw, 717 So.2d 1284, 1287 (¶ 9) (Miss.Ct.App.1998)).

A. Finding of Contempt

¶ 45. David claims the chancellor erred in finding him in willful contempt of court in the October 21, 2008, order. He argues that he attempted to comply with the court’s divorce decree as best he could, but he did not have the funds to pay the judgment; and it was impossible for him to provide Karen with health insurance because she was no longer his wife. He concludes that he was unable to perform the court’s demands due to circumstances beyond his control.

¶ 46. The purpose of a civil contempt order is to coerce a parties’ compliance with a court order. Moulds v. Bradley, 791 So.2d 220, 224 (¶ 6) (Miss. 2001) (quoting Newell v. Hinton, 556 So.2d 1037, 1044 (Miss.1990)). A payor’s failure to comply with a court order is prima facie evidence of contempt. See Rainwater v. Rainwater, 236 Miss. 412, 421, 110 So.2d 608, 611 (1959) (husband’s failure to pay alimony was prima facie evidence of contempt). The burden then shifts to the defendant who may rebut the prima facie case by proving inability to pay, lack of willfullness regarding the contempt, ambiguity in the order’s provisions, or impossibility of performance. Deborah H. Bell, Bell on Mississippi Family Law § 11.05 (1st ed. 2005). Civil contempt, such as here, must be proven by clear and convincing evidence. Allred v. Allred, 735 So.2d 1064, 1067 (¶ 10) (Miss.Ct.App.1999) (citing Masonite Corp. v. Int'l Woodworkers of Am., 206 So.2d 171, 180 (Miss.1967)).

¶ 47. First, David argues on appeal that he was unable to pay the judgment. It is well established that the payor must prove the inability to pay with “peculiarity” and not in general terms. Morreale v. Morreale, 646 So.2d 1264, 1267 (Miss.1994) (quoting Clements v. Young, 481 So.2d 263, 271 (Miss.1985)). David claims he provided the chancellor at the second contempt hearing on March 7, 2008, with copies of his bank statements and other financial statements that prove his inability to pay the divorce decree judgment. However, we find no merit to David’s contentions.

¶ 48. At the March 4, 2008, contempt hearing, when David was asked why he did not pay the various judgments, he merely stated repeatedly that he “didn’t have the money” to each query. He offered no particular proof of why he did not have the funds. The only documents entered into evidence at the first contempt hearing were his 2005 income-tax return (to confirm he had a refund of approximately $2,500); his original 8.05 statement, dated May 26, 2006, which was entered into evidence at the original divorce hearing; and a “new” 8.05 statement dated March 3, 2008. In the original 8.05 statement, David reported $37,000 in a savings account as a “non-marital asset,” which was presumably the remains of his inheritance from his mother’s estate. He also reported a net monthly income of $3,850.24, and monthly living expenses of $6,474. At the contempt hearing, David testified that at the time of the divorce hearing, he had debt totaling $42,000, not including the mortgage on the marital home and the Infiniti automobile payment. In his new 8.05 statement, he claimed a monthly net income of $4,111, total monthly expenses of $6,028, monthly installment payments for various credit cards and loáns of $1,147, and only $235 remaining in his savings account. In his brief, David stated that his $37,000 in savings had been “depleted” over time but did not elaborate at the contempt hearings on how. Further, the bank statements entered into evidence do not indicate how the funds were spent. David also reported that he now owned five acres of property valued at $5,000 that was not on his original 8.05 statement.

¶ 49. Regarding the payment of $7,500 retirement funds, David explained that he could not access the funds until he was sixty-years old, which would be at the end of August 2008. Regarding Karen’s health insurance, David maintained that before the divorce Karen was covered by both his work policy and Tenn-Care, as Karen receives social security. He claims it would have cost him $500 per month to continue his employer’s coverage through COBRA, which he could not afford. In conclusion, David testified that it was impossible for him to pay the amounts set by the court, but he offered to pay $200 per month, increased to $1,000 per month once he sold the marital home or reached sixty years old and had access to an annuity.

¶ 50. The chancellor explained that she had labored carefully over the evidence and would not have ordered David to pay and perform the actions ordered if she had not believed he had the ability to do so. Further, she noted that at the divorce hearing, David had testified and provided documentation that he had $37,000 in a savings account; so he should have been able to pay the items she ordered within thirty days. The fact that David now reported only $235 in his savings account showed that he chose to spend these funds on something other than the judgment. No evidence was admitted as to how he spent these funds. In conclusion, the chancellor stated she took into consideration his ability to pay at that time of the divorce decree and his respective financial condition when she found him in willful contempt.

¶ 51. At the second contempt hearing on March 7, 2008, in which David was either to comply with the remainder of the judgment or be incarcerated, he entered into evidence his savings account report showing its available balance at the time of the last divorce hearing in September 2007 of approximately $5,000. David also admitted that he still had not provided health insurance for Karen, but she had been covered through his employer until January 2008; however, she could not apply for COBRA benefits now as it was too late. Additionally, he modified his testimony from the first contempt hearing and stated that he would not have access to his retirement funds until he retired or turned seventy years old, not sixty years old, and he did not know when he was going to retire. David proposed that he would, however, pay Karen $3,000 now, $500 per month commencing the following month, and $1,000 per month commencing in August 2008, as his employer was going to advance his salary.

¶ 52. After David’s testimony, the chancellor questioned him, eliciting the following responses. David had not attempted to borrow funds to satisfy the judgment, as he was “tapped out credit wise.” He blamed his attorney for not completing the QDRO to transfer $7,500 of his retirement account over to Karen. Further, he did not advise Karen that she only had sixty days from January 2008 to apply for COBRA benefits. Additionally, the $5,000 from his savings account had been spent. The $5,000 tract of land was inherited, and David contended he could not sell it as he was merely a co-owner with other family members. Finally, he maintained he did not possess any of Karen’s property listed on the writ of assistance.

¶ 53. The chancellor ruled that since David had not come to the hearing with even “one penny” to pay the judgment, he was ordered incarcerated.

¶ 54. We find no error in the chancellor’s ruling of willful contempt of court, and no merit to David’s argument that he could not satisfy the judgment due to circumstances beyond his control. David did not appeal the divorce decree with a supersedes bond; he merely took it upon himself to stay the action by not performing. The decree specifically stated that most of its actions were to occur within thirty days of its entry. We also note, as the chancellor did, that David made no attempt to pay a portion of the judgment or attempt to borrow funds to pay it.

¶ 55. Further, not all of the matters of contempt involved payment of funds, but David did not comply with these orders either. David did not return some of Karen’s non-marital personal property listed in the divorce decree, and what he did return was returned five months after the judgment, instead of within the ten days decreed.

¶ 56. We find substantial evidence in the record to support the chancellor’s findings of contempt of court.

B. Health Insurance

¶ 57. David next argues that the chancellor erred in ordering him to pay $4,559.40 to cover Karen’s health-insurance premium for one year in the October 2008 order. The original divorce decree of September 24, 2007, ordered David to provide health insurance to Karen for one year subsequent to the entry of the order, or until September 24, 2008, but David did not comply. As David noted, the chancellor made a ruling from the bench on March 7, 2008, that he was to pay for all of Karen’s medical expenses for one year in lieu of providing health insurance, but this provision was not included in the written order of the court of the same date. Then, in the final contempt order of October 2008, the chancellor ordered him to pay for a plan, which Karen applied for, that had a monthly premium of $379.95 or $4,559.40 a year. This amount was included in the October 2008 order’s total judgment of $16,559.40.

¶ 58. David now argues that the “period of liability” for Karen’s health expenses ended in December 2008, because he provided proof Karen was covered through his employer’s insurance through December 2007, an additional three months that he was not aware of at the divorce proceedings, and subsequently Karen made no attempt to apply for Tenn-Care coverage. Therefore, he argues it was improper for the chancellor to now require him to pay Karen’s health-insurance premium for twelve more months.

¶ 59. We find the chancellor did not err in her ruling. David was ordered to provide health insurance for Karen for twelve months, and he did not comply with the order; instead he attempted to shift the blame to Karen’s inaction in failing to obtain coverage through Tenn-Care. David cannot successfully argue he is no longer responsible for providing insurance when he never complied with the chancellor’s order. David’s argument is without merit.

C. Personal Property

¶ 60. David argues that the chancellor erred in awarding Karen $3,000 for clothing and personal property David did not return to her when there was no evidence presented except for Karen’s testimony that the property existed. In the original divorce decree, the chancellor listed several items of Karen’s personal property that she had found were non-marital property and that were to be delivered to her within ten days of the order’s entry, such as numerous designer clothing items, Christmas ornaments, an antique shotgun and rifle, her grandchild’s furniture, and metal file cabinets. David had returned a sofa on the list, but the cushions were cut.

¶ 61. On March 4, 2008, the chancellor entered a writ of assistance to allow Karen to search the former marital home to obtain the personal property not returned to her, which she had listed in her motion for contempt. David admitted that he had “tossed” the firearms before the divorce hearing. The value of Karen’s clothes alone was estimated at $15,000. At the March 7, 2008, hearing, Karen testified that the only property of hers found at the marital home were some boxes of financial records, which she took. The remaining items the chancellor found that existed and were not returned were based on the non-controverted testimony of Karen. The chancellor took the amount of reimbursement for the property under advisement, and she concluded the value of these items was $3,000. We find no error in this regard.

D. Attorney’s Fees

¶ 62. David’s final argument is that if this Court were to find he is not in contempt of court, it was improper for the chancellor to award Karen attorney’s fees of $3,000 for the contempt proceeding. However, since we affirm the chancellor’s ruling of contempt of court, this issue is without merit.

E. Damages for Frivolous Appeal

¶ 63. In her brief, Karen argues that if this Court affirms the chancellor’s finding of contempt, this Court should apply Mississippi Rule of Appellate Procedure 38, which allows the Court to “award just damages and single or double costs to the appellee” if we determine the appeal is frivolous. The question this Court must ask is “whether a reasonable person would have any hope for success.” Harris v. Harris, 988 So.2d 376, 380 (¶16) (Miss.2008). With this question in mind, we find that the contempt appeal is not frivolous, and damages against David are, thus, not appropriate.

CONCLUSION

¶ 64. The record supports the chancellor’s categorization and division of the parties’ assets. The chancellor carefully weighed the Ferguson factors in coming to her conclusions after listening to testimony about the parties’ marital situation and property. Additionally, the chancellor properly found David in contempt of court and awarded further judgments for his failure to comply. However, we decline to assess David damages as Karen suggests, because his appeal of the judgment of contempt of court is not frivolous. In conclusion, we affirm the chancellor’s judgments on both the property distribution and contempt of court matters.

¶ 65. THE JUDGMENTS OF THE CHANCERY COURT OF DESOTO COUNTY ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. LEE, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, J.

LEE, P.J.,

concurring in part and dissenting in part:

¶ 66. While I agree with the majority that David Doyle is guilty of contempt, I dissent as I find the valuation of the marital assets was without support. I concede that the chancellor was presented with unreliable information listed on the 8.05 financial statements; thus, she lacked information from which to make a decision. However, the error regarding the value of the couple’s 2002 Infiniti automobile appears to be a clerical error which the chancellor could have easily corrected.

¶ 67. Karen Doyle was awarded $2,500, or half of the equity in the Infiniti, which was based on the erroneous entry in the financial statements that the Infiniti had a $5,000 positive value. On his 8.05 financial statement, David stated that the value of the vehicle was $23,000, and the loan amount was $28,000. He failed to indicate a negative symbol next to the difference, which was $5,000; thus, the amount was added rather than subtracted. Instead of noting this error, the chancellor decided that since David had executed the document under oath and stated that the vehicle had a positive value, she would use that erroneous value and award Karen half of that amount. I cannot agree with this. Although David mistakenly indicated a positive value of $5,000, he indicated in the same document that the value of the vehicle was less than the loan balance. The chancellor’s decision had the effect of giving the vehicle a value of $33,000. A value of $33,000 minus the loan balance of $28,000 would provide equity in the amount of $5,000. This is the only way to reach this conclusion.

¶ 68. The majority concludes that because Karen agreed she was owed $2,500, then the positive value of $5,000 must be correct. This is the equivalent of saying two wrongs make a right. I find that the chancellor’s decision, which basically added $10,000 to the value placed on the vehicle on the 8.05 financial statement, was arbitrary. The majority finds that this is not reversible error because it is possible the clerical error was in the value placed on the vehicle, rather than the failure to indicate the difference between $23,000 and $28,000 is a negative number. Instead of relying on a possibly erroneous calculation, I would remand this case for evidence of an appraisal of the vehicle from an easily obtained source, such as the National Automobile Dealer’s Association (NADA) or Kelley Blue Book.

¶ 69. Therefore, I would reverse the chancellor’s judgment on the issue of property distribution and remand this case for a determination of the correct value of the vehicle. I would affirm as to issue two.

IRVING, J., JOINS THIS OPINION.

      . A mathematical error in the judgment gave David a balance of $24,111.40 to pay instead of $23,611.40. David, however, has not asserted this mistake as an error on appeal.

      . David requested the Mississippi Supreme Court dismiss his first appeal of the September 2007 decree after his appeal of the contempt order was filed. The supreme court granted the dismissal; however, in December 2008, David moved, and the supreme court granted, his pro se motion to reinstate the initial appeal.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Alan M. AVANT, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00680-COA.
    Court of Appeals of Mississippi.
    Sept. 14, 2010.
    Rehearing Denied Dec. 7, 2010.
    Certiorari Denied March 10, 2011.

      Alan M. Avant, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Alan M. Avant pleaded guilty in the Circuit Court of Leake County to armed robbery. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC) and ordered to pay $8,686 in restitution to the Walnut Grove Finance, LLC. The sentence was ordered to run consecutively to the sentence Avant was serving in federal custody. Avant filed a motion for post-conviction relief, which the trial court denied. From this denial, Avant now appeals. Finding no error, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 9, 2004, Avant used a firearm to rob Michael Weaver, an employee of Walnut Grove Financial, LLC, located in Leake County, Mississippi. The amount of money taken from Weaver was $8,686. Avant had two prior felony convictions in St. Clair County, Illinois: one in 2000 for burglary, for which he was sentenced to three years in the Illinois State Penitentiary, and one in 2003 for robbery, for which he was sentenced to four years. Thus, Avant was indicted as a habitual offender for the Leake County armed robbery under Mississippi Code Annotated section 99-19-83 (Rev.2007).

¶ 3. However, as a result of a plea bargain, the State agreed to dismiss the habitual-offender enhancement. Avant pleaded guilty to the armed-robbery charge on January 18, 2006, and was sentenced to fifteen years in the custody of the MDOC, with the sentence to run consecutively to the sixty-three-month sentence he was serving in federal custody on a charge of felony possession of a firearm. The trial court further ordered that, upon release, Avant was to pay restitution to Walnut Grove Finance, LLC in the amount of $8,686, to be paid in monthly installments of $150 through the circuit clerk’s office. On December 1, 2008, Avant filed a motion for post-conviction relief, which the trial court denied. Avant now appeals.

STANDARD OF REVIEW

¶ 4. In reviewing a trial court’s decision to deny a motion for post-conviction relief, this Court will not reverse such a denial absent a finding that the trial court’s decision was “clearly erroneous.” Morris v. State, 29 So.3d 98, 100 (¶4) (Miss.Ct.App.2010) (citation omitted). However, when questions of law are raised, the proper standard of review is de novo. Id.

ANALYSIS

I. Whether Avant was denied due process based upon his indictment as a habitual offender.

¶ 5. Avant claims that he was denied due process of law because the prosecution indicted him “purposefully as a habitual offender solely to force and pressure [him] to plead guilty to armed robbery when the prosecution knew [he] was not a habitual offender under the requirements of the habitual statute.” Avant’s argument is without merit. On the second page of Avant’s indictment, his two Illinois felony convictions are separately set out by cause number, type of crime, and the time to be served on each conviction. The first, cause number 00-CF-228 in the Circuit Court of St. Clair County, Illinois, shows that Avant was convicted on May 16, 2000, of the felony crime of burglary, and he was sentenced to three years in the Illinois State Penitentiary. The second, cause number 01-CF-1044 in the Circuit Court of St. Clair County, Illinois, states that Avant was convicted on March 26, 2003, of the felony crime of robbery, for which he was sentenced to four years in the Illinois State Penitentiary. The indictment notes that because of these two previous felony convictions, Avant is charged as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83. This statute provides:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

Miss.Code Ann. § 99-19-83.

¶ 6. As the language of the statute indicates, if a defendant has two prior felony charges, occurring at different times for which he was sentenced to one year or more in prison, and one of the convictions is a crime of violence, then the defendant “shall be sentenced” as a habitual offender. In numerous settings and issues, our appellate courts have said that when the Legislature uses the word “shall,” the event or action being described is mandatory. “Simply stated, ‘shall’ is mandatory, while ‘may’ is discretionary.” Pitalo v. GPCH-GP, Inc., 933 So.2d 927, 929 (¶ 5) (Miss.2006) (citing Franklin v. Franklin ex rel. Phillips, 858 So.2d 110, 115 (¶ 15) (Miss.2003)). Avant had two prior felony convictions with one, the robbery conviction, being a crime of violence.

¶ 7. Further, Avant’s argument that he was not a habitual offender is discredited by his own testimony at the plea colloquy that he had not two, but three, felony convictions-the third being his felony possession of a firearm for which he was currently in custody. Thus, the district attorney properly indicted Avant as a habitual offender, and this issue lacks merit.

II. Whether Avant’s guilty plea was voluntary.

¶ 8. Avant alleges that his counsel coerced him into entering his guilty plea. Avant correctly cites Myers v. State, 583 So.2d 174 (Miss.1991) for the proposition that, if a defendant’s guilty plea is coerced or is otherwise involuntary, the judgment of conviction entered thereon is subject to collateral attack; and to be enforceable, the guilty plea must be the product of the defendant’s informed consent. However, we fail to find any coercion or lack of Avant’s informed consent to the sentence. He claims that his defense counsel committed a “tactic” of coercion by telling Avant that, if he did not plead guilty, he would receive a sentence of life without parole. Avant, now imprisoned for fifteen years, may think that he received a bad deal in the plea bargain, but the truth is that his attorney’s advice was correct. Under section 99-19-83, had Avant been convicted of the armed-robbery charge as a habitual offender, the law mandates that the defendant “shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.” Yet, as a result of his plea bargain, the prosecution agreed to drop the habitual portion of the indictment and allowed Avant to plead guilty to armed robbery with a recommendation of fifteen years in prison. In receiving the fifteen-year sentence versus life in prison without eligibility for parole or probation, Avant has indeed received a favorable outcome. Accordingly, we find this issue without merit.

III. Whether there was a factual basis for the trial court’s acceptance of Avant’s guilty plea.

¶ 9. Avant claims there was no factual basis for the trial court’s acceptance of his guilty plea. He further contends that the trial court judge never found that his prior robbery conviction was a crime of violence, making him eligible for sentencing as a habitual offender.

¶ 10. Before a court may accept a guilty plea, it must determine that the plea is voluntarily and intelligently made and that there is in the record a factual basis for the plea. URCCC Rule 8.04(3). The purpose of the factual-basis rule is to make the court “delve beyond the admission of guilty lying on the surface and determine for itself whether there is substantial evidence that the petitioner did in fact commit those crimes he is charged with and is not entering the plea for some other reason that the law finds objectionable.” Gaskin v. State, 618 So.2d 103, 106 (Miss.1993).

¶ 11. During the plea colloquy, the trial court asked Avant’s counsel if he was waiving a reading of the indictment in open court. Avant’s attorney responded that he and his client were familiar with the indictment — “that it would charge armed robbery, and also that it would have habitual offender to it, also, which would be one that would, if the Court were to apply the statute, would be a mandatory life sentence.” Avant’s counsel said that he had “made certain my client’s familiar with that indictment.” When Avant was asked if he was familiar with the particulars of the indictment against him, he responded affirmatively.

¶ 12. The indictment charged that Avant, on July 9, 2004, did willfully, unlawfully, and feloniously take more than $10 from Michael Weaver, an employee of Walnut Grove Finance, LLC, by putting Weaver in fear of immediate injury to his person by the exhibition of a deadly weapon, namely a firearm, with the money belonging to Walnut Grove Finance, LLC. The indictment then sets out the two prior felony convictions — one for burglary and one for robbery which have been discussed previously. The trial court read aloud the indictment and asked Avant if he did the unlawful activity described in the indictment, to which Avant replied, “Yes, sir.” The trial court then inquired of Avant: “Now, by that answer, you’re telling me, you’re incriminating yourself in telling me that you’re pleading guilty because you are guilty; is that correct?” Avant answered: ‘Yes, sir. Yes, sir.” The trial court discussed with Avant all the rights that he was giving up by pleading guilty, and then the judge asked Avant if he understood; Avant answered that he did. Avant further admitted in his petition to plead guilty his guilt to the armed robbery. From our review of the record, we find that there was presented in open court a factual basis for Avant’s plea.

¶ 13. Avant further submits that the robbery charge used by the prosecution to indict him as a habitual offender cannot constitute a basis for a life sentence without eligibility for parole. However, Avant provides no authority to support this assertion. As discussed in footnote 1, the Illinois statute under which he was convicted defines robbery as the taking of property by the use of force or by threatening the imminent use of force. In Magee v. State, 542 So.2d 228, 236 (Miss.1989), the supreme court held that robbery is a crime of violence for purposes of the habitual-offender statute. Thus, robbery, as contemplated by both the Illinois and Mississippi statutes, is a crime of violence where a person is having his property taken from him by the use of force or by the threat of force. We find no error in the prosecution’s reliance on Avant’s robbery conviction as a basis for the habitual-offender classification. Avant also asserts that the trial court never determined that the prior robbery used as an enhancement charge involved a prior act of violence and that this is necessary for invoking section 99-19-83. Be that as it may, as a result of his plea bargain, Avant was not convicted as a habitual offender, and the trial court judge had no reason to address the issue. This issue is without merit.

IV. Whether the trial court erred in imposing a sentence to run consecutively to Avant’s federal sentence.

¶ 14. Avant argues that the trial court’s order — that his sentence was to run consecutively to his federal sentence term — was illegal. Without citation to any authority, Avant makes the following statements in support of his argument:

This Court should find that such action was illegal. Appellant should be permitted credit on the state sentence from the date of it’s [sic] imposition notwithstanding where Appellant may have been in custody as long as he was in some form of lawful custody. The state should be responsible for its voluntary release of Appellant to another jurisdiction prior to the complete service of the state’s term. The state court imposed sentence should not have been allowed to be placed in the lay away.... This Court should find that the trial court was incorrect in imposing a sentence and releasing Appellant to another jurisdiction for service of the sentence at a future date.

As previously stated, Avant failed to cite any authority to support his argument. Failure to cite authority in support of claims of error precludes this Court from considering the specific claim on appeal. Grey v. Grey, 638 So.2d 488, 491 (Miss.1994). Procedural bar notwithstanding, Avant’s argument is without merit.

¶ 15. The general rule is that sentencing is within the complete discretion of the trial court and will not be subject to appellate review if the sentence is within the limits set out by statute. Hoops v. State, 681 So.2d 521, 537-38 (Miss.1996). “Further, ... a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.” Id. at 538 (quoting Fleming v. State, 604 So.2d 280, 302 (Miss.1992)). It is also within the trial court’s discretion whether multiple sentences will run concurrently or consecutively. Mississippi Code Annotated section 99-19-21(1) (Rev.2007) states: “When a person is sentenced to imprisonment on two (2) or more convictions, the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.” (Emphasis added). Further, it is not error for a court to impose a sentence to run consecutively with a federal sentence. See Stewart v. State, 845 So.2d 744, 748 (¶ 15) (Miss.Ct.App.2003) (a circuit court’s order of a sentence to run consecutively to defendant’s federal sentence was not error).

¶ 16. The sentence for armed robbery is life imprisonment, only if set by the jury, and if the jury fails to fix the sentence at life, then the court may set a penalty of imprisonment for any term not less than three years. Miss.Code Ann. § 97-3-79. Avant’s sentence of fifteen years in prison was well within the term allowed by statute. In addition, the court was within its discretion in ordering the fifteen-year sentence to run consecutively to the federal sentence Avant was currently serving. Avant’s “layaway” sentence was, thus, valid.

V. Whether the trial court erred by informing Avant that he could not appeal his sentence.

¶ 17. Avant claims that the trial court committed error by telling him, when accepting his guilty plea, that there could be no appeal. We find Avant’s statement without any basis in fact. Upon reviewing the transcript of the guilty plea hearing, we find no statement by the court that Avant could not appeal his guilty plea. The only reference in the record to an appeal comes from the form language of the Petition to Plead Guilty. Under section V entitled “WAIVER OF CONSTITUTIONAL RIGHTS,” one question states: “Do you understand that, if a jury convicted you, you would have a right to appeal to our Supreme Court, but if you plead guilty, you are waiving your right to appeal your case?” Written beside this statement is the word, “Yes.”

¶ 18. Mississippi Code Annotated section 99-35-101 (Rev.2006), which was in effect when Avant was sentenced, provides that “[a]ny person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.” But while a conviction from a plea of guilty may not be directly appealed, at the time Avant pleaded guilty, a defendant could directly appeal the sentence given as a result of that plea. Trotter v. State, 554 So.2d 313, 315 (Miss.1989). However, a circuit court is not required to inform a defendant who pleads guilty of his right to appeal the resultant sentence. Coleman v. State, 979 So.2d 731, 733 (¶ 6) (Miss.Ct.App.2008). This issue is without merit.

VI. Whether Avant received ineffective assistance of counsel.

¶ 19. Avant claims the following events show that he received ineffective assistance of counsel:

First, defense counsel never informed Avant of the fact that armed robbery, even upon a plea of guilty carried with it a mandatory sentence. Appellant was never told of the mandatory sentencing practice until he had appeared before the trial court. It was sprung on Appellant by the trial judge for the first time. At this pointy counsel knew Appellant had passed the point of no return and that he would have to go through with the plea or prejudice himself with the court by asking questions or disagreeing. This much counsel knew the Appellant would not do. Defense counsel should have made Appellant aware of this information prior to any appearance before the trial court for a plea. Defense counsel coerced Avant into pleas by informing Avant that a failure to plead guilty would result in a sentence of life without parole; [djefense [counsel never informed Avant that the habitual charges against his [sic] were not proper where Avant was not a violent habitual offender. Had defense counsel correctly instructed Avant on these critical points, Avant would not have entered a plea of guilty. Defense [c]ounsel was clearly not informed on or fully aware of the law in regards to sentencing for that offense of armed robbery or being a habitual violent offender in Mississippi.

¶ 20. There is a strong but rebuttable presumption that Avant’s counsel was competent and performed within the wide range of reasonable conduct expected from counsel. See Wrenn v. State, 802 So.2d 177, 180 (¶ 12) (Miss.Ct.App.2001) (the test for an ineffective-assistance-of-counsel claim is “reviewed under the strong but rebuttable presumption that an attorney is competent and his conduct is reasonable.”). However, a defendant may rebut this presumption by showing that: (1) his trial counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “The burden is on the defendant to demonstrate both prongs.” McQuarter v. State, 574 So.2d 685, 687 (Miss.1990) (citing Leatherwood v. State, 473 So.2d 964, 968-69 (Miss.1985)).

¶ 21. Avant’s assertion that he was not eligible for habitual-offender status is without merit. Further, in support of his claim, Avant offers only his own statements alleging deficiency on the part of his counsel. In cases involving post-conviction relief, “where a party offers only his affidavit, then his ineffective assistance [of counsel] claim is without merit.” Willis v. State, 17 So.3d 1162, 1166 (¶ 12) (Miss.Ct.App.2009) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Avant’s allegations are directly contradicted in his sworn plea petition and his statements made under oath before the trial court. Avant agreed that his counsel advised him of the elements of the crime and that his counsel met his expectations in all aspects of his representation. Avant also admitted that the factual basis for the charge, as presented by the State, was correct. Avant stated that he was aware that the habitual-offender status carried with it a mandatory life sentence, -and the trial court informed Avant that the State’s plea bargain offer was for fifteen years. Accordingly, we find that Avant failed to prove any deficiency on the part of his counsel, and this issue is without merit.

VII. Whether Avant’s motion for post-conviction relief should be granted due to cumulative error.

¶ 22. Avant’s final argument is that the cumulative effect of the errors deprived him of a constitutionally fair trial. First, we must note that Avant did not go to trial; rather, he accepted a generous plea bargain, which imposed fifteen years in custody and eliminated the possibility of his spending the rest of his life in prison. Our supreme court has held that “individual errors, not reversible in themselves, may combine with other errors to make up reversible error.” Wilburn v. State, 608 So.2d 702, 705 (Miss.1992). An analysis of cumulative error must be based on the fact that each error found on appeal, standing alone, did not produce an unfair trial, but when evaluated cumulatively, the errors did produce an unfair trial. Id. However, for there to be a cumulative effect, it must be found that there were multiple errors at trial. Sheffield v. State, 844 So.2d 519, 525 (¶ 16) (Miss.Ct.App.2003). We have found that there were no errors in the post-conviction procedure; therefore, this issue is without merit.

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

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

      . Under Illinois law, "[a] person commits robbery when he or she takes property, except a motor vehicle covered by Section 18-3 or 18-4, from the person or presence of another by the use of force or by threatening the imminent use of force.” 720 Ill. Comp. Stat. 5/18—1 (West 2002) (emphasis added).

      . Mississippi Code Annotated section 97-3-79 (Rev.2006), which is similar to the Illinois robbery statute, defines armed robbery as follows: "Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....”

      . As of July 1, 2008, section 99-35-101 was amended to provide: "Any person convicted of an offense in a circuit court may appeal to the Supreme Court. However, where the defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.”


author: MYERS, P. J.,

text:
    Jessie Dean ELLIS, Appellant v. GRESHAM SERVICE STATIONS, INC., d/b/a Double Quick, Inc., and Bradley MacNealy, Appellees.
    No. 2009-CA-01750-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      Omar Lamont Nelson, Jackson, attorney for appellant.
    Leann W. Nealey, Malissa Winfield, Willie T. Abston, Ridgeland, attorneys for ap-pellees.
    Before MYERS, P.J., IRVING and MAXWELL, JJ.
   MYERS, P. J.,

for the Court:

¶ 1. Jessie Dean Ellis brought a premises-liability lawsuit against Gresham Service Stations, Inc., d/b/a Double Quick, Inc., and Bradley MacNealy (collectively, “Double Quick”). Ellis claimed that he was brutally beaten behind the Double Quick store by a group of unknown assailants. The trial court granted summary judgment -in favor of Double Quick based on a finding that no genuine issue of material fact existed as to Double Quick’s actual or constructive knowledge of an “atmosphere of violence” on the store’s premises. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 6, 2006, Ellis and his longtime friend of thirty-plus years, Richard Jenkins, were on their way home from work. At approximately 5:30 p.m., Jenkins pulled his vehicle into the Double Quick store located on BB King Road in Indiano-la, Mississippi, so Ellis could purchase some cigarettes. According to Jenkins, when Ellis walked out of the store, a “bunch” of guys crowded around Ellis. Jenkins saw one of them take Ellis’s cell phone and “then another one kind of hit [Ellis].” Scared, Jenkins “left.” Jenkins, who testified that he had his own cell phone with him at the time, drove around the block, without calling the police, and returned to the Double Quick store to check on Ellis. When Jenkins did not see Ellis, he concluded that Ellis had gotten away.

¶ 3. Sometime later that night or early the next morning, Ellis was found “unconscious” two blocks from the Double Quick, and he was arrested by the Indianola Police for public drunkenness. According to Ellis, after he awoke in jail, he told the police that he had been assaulted and that he needed to go the hospital. Ellis said the police offered to give him a ride to the hospital. Ellis accepted the ride, but he requested to be dropped off at Jenkins’s residence instead of the hospital. From Jenkins’s place, Ellis called his sister, Jean Cummins, who came and got him and took him home with her. Cummins eventually took Ellis to the local hospital where he was diagnosed with a concussion, a broken jaw, and broken teeth. Ellis was transferred to the hospital in Greenville, Mississippi, where he stayed for a week before being transferred to a rehabilitation facility-

¶ 4. On December 27, 2006, Ellis filed an incident report at the Indianola Police Department, claiming he was assaulted by unknown assailants at the Double Quick store on October 7. According to Ellis, he suffered a head injury from the attack which left him with memory loss. All Ellis recalled of the incident was walking out of the store, getting hit by an individual who was standing outside the store, then lending his cell phone to two other individuals standing outside of the store, walking around the corner of the store to retrieve it when they disappeared with it, and then waking up in jail.

¶ 5. Ellis filed suit against Double Quick on September 24, 2007. According to Double Quick, none of its employees witnessed the alleged incident, and neither the company nor its employees became aware of the alleged incident until after the suit’s filing.

¶ 6. An agreed scheduling order was entered, setting the deadline for discovery on June 30, 2008. Discovery was extended to October 31, 2008, by agreement of the parties. Both parties designated experts. Ellis’s expert, Commander Tyrone Lewis, opined that Double Quick’s premises were unreasonably dangerous, making Ellis’s assault reasonably foreseeable. Double Quick’s expert, Lee Vance, opined the opposite.

¶ 7. In March 2009, Ellis’s legal counsel learned from Ellis of a new witness, Edgar Love, and on April 1, 2009, counsel filed a motion with the trial court to take Love’s deposition. According to the motion, Love was a “key witness in the case.” It was represented to the trial court that Love’s whereabouts had been unknown to Ellis since the October 2006 incident, and that on March 20, 2009, Love had approached Ellis wanting to know how Ellis was doing. Double Quick objected to the motion on the ground that the discovery deadline had passed and Ellis had failed to identify anyone during the course of discovery who purportedly assisted him on the night in question. Subsequently, however, the discovery deadline was extended until June 15, 2009. Love’s deposition was taken on June 5, 2009.

¶ 8. According to Love, he found Ellis lying in a ditch near the Double Quick. He helped Ellis up and brought him to the side of the Double Quick store. Love testified that Ellis was in bad shape, as he was bleeding from the head and could not talk. Love said he alerted Double Quick staff that there was an injured man outside and that they should call the police or an ambulance. Love also testified that he had seen Ellis countless times since the incident, and Love indicated that he informed Ellis as early as 2007 about the role he had played on the night in question.

¶ 9. In light of Love’s testimony, Double Quick moved to dismiss or, alternatively, to strike Love’s testimony on the basis that Love revealed that Ellis had known about the role Love had played on the date of the alleged incident and that Ellis had misrepresented to the trial court that he was unaware of Love’s existence until March 2009. Ellis’s response to Double Quick’s motion was that he had forgotten about Love’s involvement, which Ellis attributed to the memory loss he suffered due to his head injury. The trial court expressed concern that Ellis had failed to come forward with any medical proof of his purported memory loss. But the trial court conditionally denied Double Quick’s motion, finding there was insufficient proof to determine whether Ellis’s inability to comply with the discovery deadlines was willful or not. The trial court left the door open for the parties to revisit the issue with appropriate expert and medical testimony.

¶ 10. Double Quick moved for reconsideration of the issue and submitted the testimony of Ellis’s treating neurosurgeon, Dr. Lenard Rutkowski. According to Dr. Rutkowski, Ellis’s concussion typically results in short-term amnesia, not any long-term intermittent memory loss. Double Quick also offered up Ellis’s own testimony, wherein Ellis recounted conversations and events, in notable detail, that had occurred prior to the alleged incident and immediately after he awoke in jail.

¶ 11. Based on the circumstances surrounding Love’s disclosures; the testimony of Love, himself; Ellis’s testimony; the testimony of Dr. Rutkowski; and the lack of any contrary medical evidence, the trial court as a sanction against Ellis, struck the deposition testimony of Love and excluded Love from testifying at the upcoming trial. In so doing, the trial court specifically found that Ellis’s claimed “forgetfulness” regarding Love’s existence, and his knowledge about the facts of this case were not the result of any medical condition; rather, it was an intentional act to circumvent discovery deadlines so that Love could provide testimony favorable to Ellis.

¶ 12. Double Quick filed a motion for summary judgment. The motion was granted based on the trial court’s finding that there was no genuine issue of material fact as to the issue of Double Quick’s actual or constructive knowledge of an atmosphere of violence on its premises at the time of the alleged incident. This appeal followed.

STANDARD OF REVIEW

¶ 13. This Court conducts a de novo review of a trial court’s order granting or denying summary judgment. McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (¶ 9) (Miss.2002). Summary judgment is proper only where the trial court, after construing all the evidentiary matters before it in the light most favorable to the non-moving party, finds there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Evans v. Hodge, 2 So.3d 683, 685 (¶ 4) (Miss.Ct.App.2008) (citing M.R.C.P. 56(c)). To withstand summary judgment, the non-moving party must rebut the motion with significant probative evidence showing there are genuine issues for trial. Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citation omitted). The evidence necessary to meet this burden must be evidence upon which “a fair-minded jury could return a favorable verdict.” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

ANALYSIS

¶ 14. A business owner owes an invitee a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injury at the hands of another. Lyle v. Mladinich, 584 So.2d 397, 399 (Miss.1991). Acts of third parties are reasonably foreseeable if the owner had cause to anticipate such acts by either: “(1) actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge that an atmosphere of violence exists [on the premises].... ” Id.

¶ 15. As the alleged assailants are unknown in this instance, Ellis was required to produce evidence that an atmosphere of violence existed on Double Quick’s premises, such that Double Quick would have had actual or constructive notice of that atmosphere. Relevant factors for consideration of whether a defendant had such notice have been held to include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.” Gatewood v. Sampson, 812 So.2d 212, 220 (¶ 14) (Miss.2002) (citation omitted).

¶ 16. Scott Shafer, Double Quick’s vice-president of operations, testified that the Double Quick store in question is located in a residential neighborhood down the street from Gentry High School. The store closes every night at midnight. It uses unarmed security personnel, contracted from a private security company, four nights a week, Thursday through Sunday, between the hours of 9:00 p.m. and closing, as these are the store’s peak hours. Security is also used during special occasions, such as the Fourth of July and athletic events at the high school. The store has twelve surveillance cameras, nine on the interior of the store, two on the exterior of the store looking directly into the parking lot, and one on the southeast corner of the store. The surveillance cameras are operated by a “DVR system,” which records over itself every thirty days. There are no surveillance recordings of the date(s) in question.

¶ 17. As proof supporting the atmosphere of violence factor, Ellis relies on: twelve police reports spanning a ten-year time period prior to the alleged incident; his own testimony and that of Jenkins, regarding the premises at Double Quick; and the affidavit of Ellis’s liability expert, Commander Lewis. The twelve police reports are summarized as follows:

March 14, 1996: Petit larceny — customer left store without paying for $6.00 worth of gasoline; charges were later dropped when customer returned to pay for the gas.
July 4, 1996: Burglary — theft of two cases of beer.
September 16, 2000: Disorderly conduct — fight occurred between two young males on the store’s premises after business hours.
October 30, 2003: Aggravated assault— teenage female cut a teenage male’s face with a knife. The incident resulted from an argument between the two individuals which began somewhere off the store’s premises. One of Double Quick’s employees tried to intervene. The police were called, and a Double Quick employee brought the boy into the store and treated him until his brother came and took him to the hospital.
January 1, 2005: Burglary — theft of cigarettes and beer.
January 2, 2005: Burglary — theft of store’s safe.
July 24, 2005: Malicious mischief/vandalism — dispute between boyfriend and girlfriend, boyfriend pounded on girlfriend’s vehicle with his fist.
August 19, 2005: Vandalism — young boy playing in the store broke glass door with his football helmet.
September 6, 2005: Simple assault — domestic dispute, boyfriend followed girlfriend onto Double Quick’s lot and asked whose car she was driving; he then pushed her body against the vehicle.
July 2, 2006: Disturbing the peace— fight between two males.
August 30, 2006: Petit larceny — customer left gas pump without paying for $10 worth of gasoline.
October 5, 2006: Simple assault — dispute occurred between two women who knew each other; one sprayed the other with mace.

¶ 18. Ellis testified in his deposition that “drug deals” occur on Double Quick’s premises daily, as there is a “drug house” located across the street. According to Ellis, he sometimes works undercover for the Indianola Police Department as a drug buyer, and when he goes by the Double Quick he knows who is selling drugs. Ellis said he had informed the police about drug sales at this location, but he never notified Double Quick about such activity.

¶ 19. Jenkins testified that he had no personal knowledge of any drug activity taking place at the Double Quick store. But he stated that a number of people frequently hang out at the liquor store located next door to Double Quick and that they sometimes congregate at the Double Quick store itself. Jenkins stated that on one occasion, sometime prior to the incident involving Ellis, he had stopped at Double Quick to buy a coke. As Jenkins was walking out of the store, someone “said something” to him. When Jenkins “said something back,” someone threw a bottle at his truck which broke one of the truck’s windows. According to Jenkins, the bottle incident is why he got scared and left Ellis that day in October 2006. Jenkins never reported the bottle incident to Double Quick.

¶ 20. Ellis also furnished Commander Lewis’s affidavit. Relying on the above-mentioned evidence, Commander Lewis provided the following:

It is my opinion to a reasonable degree of professional certainty that the attack on Jessie Dean Ellis on or about October 7, 2006 ... was a natural and foreseeable consequence of the conditions and circumstances that existed on the premises on and prior to October 7, 2006. This opinion is based on the fact that there had been sufficient crime committed on the premises of the subject convenience store to place the owner on notice that reasonable security measures were needed for the security, safety and well-being of their [sic] patrons. See Crime Stats of the subject property attached hereto....

¶ 21. Based on our de novo assessment of the entire record, we agree with the trial court’s holding that Ellis presented no genuine issue of material fact as to whether Double Quick had actual or constructive notice that an atmosphere of violence existed on its property.

¶ 22. As the trial court found, of the twelve reported “criminal” acts at the Double Quick store in question during the ten year period preceding the alleged assault, only five of those, for all intents and purposes, were crimes against the person. And none of these incidents involved unprovoked assaults upon one of Double Quick’s unsuspecting patrons by unknown assailants. Rather, each offense was precipitated by some sort of pre-existing dispute between individuals who knew each other and who brought their conflicts on to Double Quick’s grounds with no forewarning to Double Quick. According to the record, Double Quick’s employees responded to each situation as reasonably as could be expected. The other reported incidents were crimes against the store. And of these, the only ones of any significance were the three burglaries, each of which occurred in the middle of the night while the store was closed for business.

¶ 23. As to the allegation of drug sales occurring on Double Quick’s premises on a daily basis, Ellis made no adequate showing that Double Quick knew or should have known that such activity was taking place on its premises. All that can be garnered from Ellis’s testimony on the matter is that he, not Double Quick, was privy to such criminal conduct. The same goes for Jenkins’s testimony with regard to the bottle incident.

¶24. True, as Ellis points out on appeal, this Court has held that prior assaul-tive acts occurring on a business owner’s premises and the assaultive act complained of are not required to be the same in order for there to be a triable issue of whether the latter was reasonably foreseeable. See, e.g., American Nat. Ins. Co. v. Hogue, 749 So.2d 1254, 1260 (¶21) (Miss.Ct.App.2000) (holding that a victim who was carjacked and kidnapped from a mall parking lot by an unknown assailant was not required to bring forth evidence of an identical crime having previously occurred on the owner’s premises in order to establish that such an assault was foreseeable — pri- or acts, in one year alone, included, among others, thirteen auto-thefts, two strong-arm robberies, one robbery with a knife, one rape, and two assaults with injuries constituted sufficient, competent evidence to raise an issue of foreseeability of assaul-tive conduct in this parking lot). But we find here that Double Quick could not have reasonably foreseen an assault of this nature based on the type of incidents the store had experienced in the past. Contrary to the conclusory statements expressed by Ellis’s expert, such incidents, particularly in these numbers, do not rise to the level of violence sufficient to create a factual question as to whether Double Quick was on actual or constructive notice that an act of violence like the one claimed in this instance would occur on its premises. Cf. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279, 1284 (¶ 20) (Miss.Ct.App.2007).

¶25. Accordingly, we hold that Ellis has failed to demonstrate an “overall pattern of criminal activity” prior to the event in question that occurred in the vicinity of the Double Quick’s premises, and he has failed to demonstrate any “frequency of criminal activity” on the store’s premises sufficient to establish an “atmosphere of violence.” This issue lacks merit.

¶ 26. Lastly, Ellis claims the trial court erred in excluding the testimony of his witness, Love. Since Ellis cannot meet the duty element in his negligence claim, we find it unnecessary to consider the trial court’s ruling on the matter. This issue is moot.

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

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

      . The record contains an ‘‘Appearance Ticket” that was issued to Ellis on October 7, 2006, charging him with public drunkenness, which Ellis refused to sign. When Ellis was crossed-examined by Double Quick's attorney about the charge during his deposition, Ellis had no recollection about the appearance ticket.

      . Portions of the record refer to the alleged assault as having occurred on October 7, 2006.


author: MAXWELL, J.,

text:
    Carolyn ANDERSON, Appellant v. BRITTON & KOONTZ BANK, N.A. a/k/a Britton & Koontz First National Bank and Britton & Koontz Capital Corporation, Appellees.
    No. 2009-CA-01798-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.
    Deborah A. McDonald, attorney for appellant.
    Donna Marie Meehan, Michael D. Simmons, Jackson, attorneys for appellees.
    Before IRVING, BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Under Rule 54(b) of the Mississippi Rules of Civil Procedure, a summary-judgment order that disposes less than all claims or parties is interlocutory, absent the trial court’s express determination there is not reason for delay and explicit direction to enter a final judgment. Carolyn Anderson appeals the grant of summary judgment in favor of Britton & Koontz Bank, N.A. and Britton & Koontz Capital Corporation (collectively B & K Bank). Anderson had sued two defendants, B & K Bank and E.A. Redd Pest Control, Inc. (Redd Pest Control), but the summary-judgment order only disposed of the claims against B & K Bank. Because the circuit court did not certify under Rule 54(b) that the summary-judgment order was final, the order is interlocutory. Therefore, we must dismiss Anderson’s appeal for lack of a final, appealable order.

PROCEDURAL HISTORY

¶2. Anderson sued B & K Bank and Erma Redd (Redd) for wrongfully disposing of her personal property. Anderson had rented an office in a building owned by Redd Pest Control. On October 4, 2007, B & K Bank foreclosed on the building. By the end of October, Redd had notified Anderson of the foreclosure and the need to remove her property. Because Anderson had not finished moving by November 22, B & K Bank, believing Anderson had abandoned the remaining personal property, took it to a local dump.

¶ 3. Anderson served both B & K Bank and Redd with process. B & K Bank immediately answered. But Redd moved that she be substituted as a defendant by Redd Pest Control because the company, and not her individually, had leased the office to Anderson. The circuit court granted Redd’s motion, and Redd Pest Control filed an answer.

¶4. B & K Bank moved for summary judgment on all of Anderson’s claims. Redd Pest Control neither joined this motion nor independently moved for summary judgment. On October 1, 2009, the circuit court ruled on B & K Bank’s motion, granting summary judgment in its favor on all claims. On November 2, 2009, Anderson filed a notice of appeal, stating she was appealing the order in favor of both B & K Bank and Redd. On November 9, 2009, the circuit court entered an order clarifying that the October 1 order granted summary judgment to B & K Bank only. Anderson moved forward with her appeal, without requesting any certification from the circuit court about the finality of the October 1 summary-judgment order.

DISCUSSION

¶ 5. Because neither party considered the threshold issue of appellate jurisdiction, we must address on our own initiative whether the summary-judgment order is final and appealable. Miller v. Cont’l Mineral Processing, 39 So.3d 998, 1000-01 (¶ 8) (Miss.Ct.App.2010) (citing Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)). In doing so, we find the summary-judgment order was not a final, appealable judgment.

¶ 6. Rule 54(b) instructs:

[Wjhen multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

M.R.C.P. 54(b) (emphasis added). The comment to Rule 54(b) explains:

The rule does not require that a judgment be entered when the court disposes of one or more claims or terminates the action as to one or more parties. Rather, it gives the court discretion to enter a final judgment in these circumstances and it provides much needed certainty in determining when a final and appealable judgment has been entered. If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner.

M.R.C.P. 54(b) cmt. (emphasis added).

¶ 7. When an order does not dispose of all the parties, “Rule 54(b) requires [the court] to take two separate steps before an appeal can be perfected.” Id. First, the court must expressly determine there is no just reason for delay. Id. And, second, it must expressly direct the entry of judgment. Id. Both the official comment and our courts refer to this two-step process as “certification.” Id. See, e.g., Ind. Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So.2d 750, 753 (Miss.1984).

¶ 8. Although a court may issue a specific Rule 54(b) order, certification does not require a separate order. Ind. Lumbermen’s, 456 So.2d at 753. A trial court may certify the finality of its order by including in the order “an expressed determination that there is no just reason for delay” and “an expressed direction for the entry of the judgment.” Id. (quoting M.R.C.P. 54(b)). In Indiana Lumbermen’s, the order granting one of the defendant’s motion to dismiss sufficiently certified its finality. It expressly stated the defendant was “entitled to be finally dismissed, and ... that there is not just reason for delay” and cited Rule 54(b) as the basis for the order being final. Id. at 752.

¶ 9. Here, because the record contains no separate certification order, we look to both the order granting summary judgment and the later clarification order for certification. We find no language in either order that demonstrates the circuit court made “an expressed determination that there is no just reason for delay” and “an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). In contrast to the Indiana Lumbermen’s dismissal order, all the October 1 summary-judgment order determined was that Anderson had “failed to provide any evidence that would create a genuine issue of material fact” and that “[s]ummary judgment is hereby granted as to all issues to the Defendant.” The November 9 clarification order merely drew attention to the fact the summary-judgment order applied to B & K Bank only, directing the clerk to forward the clarification order to both parties but not to enter a final judgment.

¶ 10. Without a Rule 54(b) certification, the order granting summary judgment to only one of the two defendants is interlocutory. M.R.C.P. 54(b) cmt. (clarifying an order is interlocutory if not certified, “even if it appears to adjudicate a separable portion of the controversy”). An interlocutory order is only appealable if the Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of Appellate Procedure. Miller, 39 So.3d at 1000(9) (citing Lloyd G. Oliphant & Sons Paint Co. v. Logan, 12 So.3d 614, 617(9) (Miss.Ct.App.2009)). Because Anderson neither sought nor was afforded permission under Appellate Rule 5 to proceed with an interlocutory appeal, we must dismiss this appeal for- lack of jurisdiction. Id.

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

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

      . Anderson also named John Does 1-5 as defendants, alleging other unknown individuals were also liable for the wrongful removal of her property. The record indicates Anderson never identified any other defendants or served anyone else with process, making B & K Bank and Redd the only defendants in this matter.