author: PIERCE, Justice,

text:
    STATE of Mississippi, ex rel. Jim HOOD, Attorney General v. LOUISVILLE TIRE CENTER, INC. d/b/a Fair Oil Company.
    No. 2009-CA-00052-SCT.
    Supreme Court of Mississippi.
    March 10, 2011.

      Office of the Attorney General by Meredith McCollum Aldridge, Bridgette Wiggins, attorneys for appellant.
    Charles E. Winfield, Joy Wolfe Graves, Starkville, attorneys for appellee.
   PIERCE, Justice,

for the Court:

¶ 1. Mississippi’s Price-Gouging Statute penalizes businesses that raise the price of their goods from the price charged “in the same market area ... at or immediately before” a proclamation of a state of emergency. The State of Mississippi, through Attorney General Jim Hood, filed a price-gouging claim against Louisville Tire Center, Inc., d/b/a Fair Oil Co., for violations of Mississippi Code Section 75-24-25 (the “Price-Gouging Statute”). Fair Oil filed a motion for summary judgment alleging that the Price-Gouging Statute was unconstitutionally vague. The trial court granted Fair Oil’s motion, and the State appealed. Because the Price-Gouging Statute is not void on its face and a void-as-applied challenge is not yet ripe for this Court’s review, we reverse and remand.

STATEMENT OF FACTS

¶ 2. On Friday, August 26, 2005, Gov. Haley Barbour signed a proclamation, declaring a state of emergency throughout Mississippi because of the threat of Hurricane Katrina. The proclamation stated that the storm was expected to threaten the safety of the public and damage property throughout Mississippi. Additionally, the proclamation designated a state of emergency in the areas affected by Katrina, which- struck Mississippi with devastating force on Monday, August 29, 2005, causing death and immense property damage.

¶ 3. In the wake of Katrina, Fair Oil, along with many other businesses in the State, faced difficulty in providing services for fellow Mississippians. Fair Oil alleges that its employees worked longer hours and waited in longer lines to provide gasoline and diesel fuel to various outlets in Central Mississippi and, accordingly, claims that it incurred additional costs and expenses. In response to consumer reports about Fair Oil’s price increases, the attorney general issued a Civil Investigative Demand (“CID”) to Fair Oil, requesting responses to various questions and production of various documents, all relating to Fair Oil’s fuel pricing at retail locations in Starkville and West Point during August 2005 through December 2005.

¶ 4. The CID sought daily fuel-pricing information, but Fair Oil asserted that it could provide only weekly pricing information, because daily price changes were communicated verbally through telephone calls to each store and were not recorded. Ultimately, Fair Oil offered average weekly pricing information using Excel software. Relying upon similar policies in Alabama and Florida, the attorney general averaged these weekly numbers for the thirty days leading up to the declaration of emergency to set the price standard charged by Fair Oil “at or immediately before” the declaration of emergency. Comparing this thirty-day average price with prices charged by Fair Oil after the declaration of emergency, the attorney general alleged that Fair Oil had violated the Price-Gouging Statute.

¶ 5. However, the record and briefs reveal that, during settlement negotiations with Fair Oil, the attorney general used, at varying times, a ten-day and a twenty-five-day standard. After settlement negotiations failed, the attorney general filed suit against Fair Oil in the Chancery Court of Winston County, settling on a thirty-day standard. In response, Fair Oil filed an Answer, Defenses and Counterclaims on July 12, 2007, and then an amended Motion to Dismiss, Answer, Defenses and Counterclaims on January 31, 2008, maintaining its previous claims and seeking a declaratory judgment that the Price-Gouging Statute was unconstitutional as applied. On February 14, 2009, Fair Oil filed a motion for summary judgment, seeking a determination in favor of the issues presented in its counterclaim and amended counterclaim.

¶ 6. Fair Oil contends that the language of the Price-Gouging Statute is vague and therefore, unconstitutional, specifically objecting to the phrases “same market area” and “at or immediately before.” Fair Oil asserts that the attorney general and his staff admit confusion regarding the language of the Price-Gouging Statute. In its November 25, 2008, opinion, the trial court found that the phrase “same market area” was not unconstitutionally vague. However, the trial court granted summary judgment for Fair Oil, finding the phrase “at or immediately before” to be unconstitutionally vague, inadequate at offering “explicit standards for potential violators to avoid penalties,” and, consequently, void.

¶ 7. On appeal, the State asserts that: 1) the trial court erred when it failed to analyze Fair Oil’s conduct before holding that the Price-Gouging Statute was unconstitutionally vague; 2) the trial court erred because it applied the incorrect vagueness test; 3) the trial court erred when it relied upon settlement negotiations as a basis for finding the Price-Gouging Statute unconstitutionally vague; and 4) the trial court erred when it failed to require Fair Oil to meet its burden of proof that the Price-Gouging Statute was unconstitutionally vague beyond a reasonable doubt. In response, Fair Oil cross-appeals and contends that it was entitled to summary judgment on the additional ground that “same market area” also is impermissibly vague.

ANALYSIS

¶ 8. In this case, our standards for vagueness and summary judgment intersect. The law regarding a void-for-vagueness challenge is clear: A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential element of due process guaranteed by the Fourteenth Amendment. But there is a strong presumption that a legislative enactment is valid, and we will strike down a statute only when it appears beyond a reasonable doubt that it violates the constitution. Criminal statutes, specifically, must clearly warn what conduct is prohibited when evaluated by common understanding and practice, as must civil statutes and regulations. However, a rule or standard is not objectionable merely because it is stated in general terms and is not susceptible of precise application. Common examples of such general standards include negligence, uneonscionability, fraud, etc.

¶ 9. The standard for summary judgment is likewise familiar: it should be granted only when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. This Court applies a de novo standard of review when examining a grant or denial of summary judgment. The trial court must carefully review all the evidentiary matters in the light most favorable to the nonmoving party.

¶ 10. Considering those standards, we study the relevant text of the statute:

(2) Whenever, under the Mississippi Emergency Management Law, Sections 33-15-1 through 33-15-49, a state of emergency or a local emergency is declared to exist in this state, then the value received for all goods and services sold within the designated emergency area shall not exceed the prices ordinarily charged for comparable goods and services in the same market area at or immediately before the declaration of a state of emergency or local emergency. However, the value received may include: any expenses, the costs of the goods and services which are necessarily incurred in procuring such goods and services during a state of emergency or local emergency. The prices ordinarily charged for comparable goods or services in the same market area do not include temporarily discounted goods or services. The same market area does not necessarily mean a single provider of goods or services.

Variously, the chancellor appeared to declare the statute void on its face and void as applied to oil companies, in general. These are different concepts. We find that the statute is not void on its face, and that a declaration that it is void as applied is premature.

Constitutionality of the statute “on its face”

¶ 11. Facial invalidity is strong medicine that has been employed sparingly, as a last resort. The complainant must demonstrate that the law is “imper-missibly vague in all its applications.” Comprehending the nature of the conduct prohibited by the Price-Gouging Statute requires neither an advanced degree from the Wharton Business School nor an accounting degree from one of our fine public universities. The alleged conduct being prosecuted is the raising of prices after the declaration of a state of emergency, absent justification. The baseline price provided by the statute is whatever was being charged “in the same market area ... at or immediately before” the state of emergency. “At” means “[o]n or near the time or age of.... ” “Immediately” is defined as “1. Without intermediary: directly.” “Before” means “[i]n the past: earlier.” The absence of “perfect clarity and precise guidance” does not render this provision unconstitutionally vague.

¶ 12. Similarly, we affirm the chancellor’s decision that the phrase “same market area” is not void on its face. The chancellor accurately surmised that the terms “market area or ‘trade area’ would be clear to any businessman who wants to charge competitive prices and attract customers.” Based on the aforementioned analysis, the chancellor erred in holding that the Price-Gouging Statute did not “pass constitutional muster” on its face.

Constitutionality of the statute “as applied”

¶ 13. Though briefly considered, the chancellor never determined whether Fair Oil had violated the Price-Gouging Statute. At the hearing on the motion for summary judgment, Fair Oil concentrated on arguing that the Price-Gouging Statute was vague and therefore, unconstitutional, avoiding any evaluation of its specific conduct. The attorney general alleges that Fair Oil violated the statute by raising prices above a base price calculated by the attorney general using a formula devised by his office. However, with due respect to the attorney general, his interpretation of this statute remains only a hypothetical application until that interpretation is put into force by the judiciary. And we will not strike down legislative enactments based on hypothetical applications. Fair Oil remains a potential violator until the trial court examines its conduct in light of a judicial interpretation of statute. The chancellor should take into account all evidence and argument, including the attorney general’s interpretation, but the final interpretation and application of this statute is the province of the judiciary.

¶ 14. Since the only basis for Fair Oil’s motion for summary judgment was its assertion that the statute was unconstitutional, summary judgment should have been denied.

CONCLUSION

¶ 15. The language of the Price-Gouging Statute provides adequate notice on its face of what is prohibited when a state of emergency is declared. Therefore, we reverse the trial court’s grant of summary judgment and remand this case for further proceedings consistent with this opinion. Since we affirm the trial court’s determination that the phrase “same market area” is not void on its face, the sole issue of Fair Oil’s cross-appeal, we affirm on cross-appeal. On remand, Fair Oil’s conduct should be examined in light of a judicial interpretation of the statute. This issue alone requires remand without discussion of the other issues presented to this Court, since those issues turn squarely on the constitutionality of the Price-Gouging Statute.

¶ 16. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ, RANDOLPH, LAMAR, KITCHENS AND CHANDLER, JJ, CONCUR. KING, J, NOT PARTICIPATING.

      . Miss.Code Ann. § 75-24-25 (Rev.2009).

      . This proclamation was issued prior to landfall of Hurricane Katrina, and the proclamation clearly designated that all of Mississippi had the potential of being affected. Therefore, if an area of the State was affected, this proclamation covered that area.

      . Under Mississippi Code Section 75-24-17 (Rev.2009), the attorney general has specific authority to seek sanctions in chancery or county court against any person who knowingly and willfully fails or refuses to comply with these investigative tools. The record does not reflect whether the attorney general used this authority.

      . See Miss Code Ann. § 75-24-25(2) (Rev. 2009).

      . Meeks v. Tallahatchie County, 513 So.2d 563, 566 (Miss.1987) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1925)).

      . Richmond v. City of Corinth, 816 So.2d 373, 376-77 (Miss.2002).

      . Fulgham v. State, 47 So.3d 698, 701 (Miss.2010).

      . Richmond, 816 So.2d at 377 (citing Jones v. State, 710 So.2d 870, 877 (Miss.1998)).

      . Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981) (quoting Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S.Ct. 703, 95 L.Ed. 886 (1951)).

      . Hairis v. Miss. Real Estate Comm'n, 500 So.2d 958, 965 (Miss.1986).

      . Vance v. Lincoln County Dep't of Pub. Welfare by Weathers, 582 So.2d 414, 419 (Miss.1991).

      . Id.

      . Miss. R. Civ. P. 56(c).

      . Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 364 (Miss.2004) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988)).

      . Id. (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)).

      . Miss.Code Ann. § 75-24-25(2) (Rev.2009).

      . Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998).

      . Fulgham, 47 So.3d at 701 (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)).

      . Webster's II New College Dictionary at 70 (1995).

      . Id. at 552.

      . Id. at 99.

      . See Harris, 500 So.2d at 965; Vill. of Hoffman Estates, 455 U.S. at 495, 102 S.Ct. 1186.


source: Caselaw Access Project

author: KITCHENS, Justice,

license: Public Domain

text:
    Montae BLANCHARD v. STATE of Mississippi.
    No. 2010-KA-00312-SCT.
    Supreme Court of Mississippi.
    March 10, 2011.

      Office of Indigent Appeals by George T. Holmes, Leslie S. Lee, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before WALLER, C.J., DICKINSON, P.J., and KITCHENS, J.
   KITCHENS, Justice,

for the Court:

¶ 1. Following a jury trial from which he was absent, Montae Blanchard was convicted of armed robbery as defined by Mississippi Code Section 97-3-79 (Rev. 2006). The trial court sentenced Blanchard to fifty years’ imprisonment and ordered him to pay court costs, fees, restitution, and a fine, totaling $15,822.50. Finding no reversible error, we affirm the conviction and sentence.

Facts

¶ 2. On January 7, 2008, just before 5:00 p.m., Dale Pierce, the owner of Terrific Tax in Aberdeen, Mississippi, noticed two young people, a male and a female, loitering outside the Terrific Tax building. Pierce asked whether they needed assistance, and was told that their car had been stolen. Pierce advised the two youths to contact the police, but they replied that they did not want to inform law officers because their cousin probably had taken the car. Pierce left, then returned to the store at 5:20 p.m., when he was told by David Mink, a Terrific Tax employee, that the business had been robbed.

¶ 8. According to Mink, the young female had entered the store at 4:50 p.m. Mink said that he initially had thought she was a boy and later described her to police as a short, black teenager with short hair and tattoos. Mink said that the girl asked him for his telephone number, but he declined to give her his number because he was married.

¶ 4. Shortly thereafter, her male companion entered the Terrific Tax establishment. Mink desci'ibed him as a tall, black male, wearing a stocking cap over his dreadlocks. When the man entered the store, the girl asked Mink for some candy that she noticed behind the business counter. When Mink brought the candy to her, the man removed what appeared to be a handgun from the waistband of his shorts and pointed it at Mink’s face. The man then handed the gun to the girl, and told Mink to go sit in a chair by the front door while she continued to point the gun at Mink. Mink complied and sat down while the man went behind the counter and stole a bag containing roughly $5,000 in cash.

¶ 5. Before exiting the establishment, the man instructed Mink to come to the back of the business counter. There, the man told Mink not to usé the telephone, and demanded that Mink give him his car keys and mobile telephone. Mink responded that he did not have his keys or his mobile telephone. The man then told Mink he was “Chris from Amory” and “that he [Mink] would remember him.” The two robbers then exited the business, the man carrying the bag of cash, and the young woman carrying the gun. As they left, Mink’s mother entered the building, and Mink yelled for her to call the police.

¶ 6. Police arrived soon after the robbery was reported, and Investigator Qui-nell Shumpert was assigned to the case. Shumpert testified that, during the course of his investigation, he developed a suspicion that the girl involved in the robbery was Mary Minor. Shumpert identified Mary as a suspect from the description Mink gave of a short black teenager with tattoos, brown skin, and masculine features. Shumpert’s matching identification came from personal knowledge of Mary in his capacity as an investigator in previous matters.

¶ 7. Shumpert eventually located Mary at her cousin’s home. Upon arrest, Mary told Shumpert that she had hidden the gun used in the robbery under a mattress in her cousin’s bedroom. The police located a BB pistol under the mattress and confiscated it. Mink testified at trial that this BB pistol looked like the gun that was used in the robbery.

¶ 8.. During further questioning, Mary also told Shumpert that her accomplice was her cousin, Montae Blanchard. Shumpert called Blanchard and asked him to come to the Aberdeen police station to talk about the robbery.

¶ 9. After Mary had disclosed the name of her accomplice, both men from Terrific Tax identified Blanchard from a photo array. When Blanchard arrived at the police station, he was taken to an interrogation room with a two-way mirror. Shumpert testified that Pierce and Mink had observed Blanchard from the other side of the mirror, and that Pierce had again positively identified Blanchard as the man he had seen loitering outside his store. Shumpert could not recall whether Mink also made a second identification, but Mink testified that he had identified Blanchard as the robber from behind the mirror.

¶ 10. Although Mink had described the man who robbed Terrific Tax as having braids in his hair, Blanchard arrived at the police station with a shaven head. While being questioned, Blanchard contended that he had been in Tupelo at a hospital with his girlfriend and another female friend during the time of the robbery. Shumpert then contacted the hospital, and the hospital’s security guard stated he had reviewed the hospital’s surveillance tapes and had not seen Blanchard but had seen the two women he claimed to have been with.

¶ 11. Prior to trial, Blanchard was assigned a public defender, Luanne S. Thompson. When the trial began, Blanchard was not present. Neither the judge, prosecutor, nor Thompson mentioned Blanchard’s absence until the first witness had testified. During a recess, with the jury out, the judge noted for the record that the defendant was not present. Lawyer Thompson told the court that she had been in contact with Blanchard numerous times, and that he was well aware of his trial date. The trial proceeded to conclusion in Blanchard’s absence.

¶ 12. Mary Minor, the juvenile accomplice, testified against her cousin, corroborating Pierce and Mink’s version of events and confirming their accounts of Blanchard’s activities in connection with the crime. She said that she had not wanted to rob the store, but that Blanchard had threatened to harm her if she did not help him “hit a lick.” Although some of the details of her story were contradictory, she was emphatic that Blanchard was the person who had robbed Terrific Tax. At trial, Mary identified Blanchard from a photograph. Pierce and Mink also were shown the photograph at trial, and both testified that Blanchard was the man who had robbed the store.

¶ 13. Following a day’s testimony, the jury found Blanchard guilty of armed robbery. A sentencing hearing was held the next day, with Blanchard again absent. The trial judge sentenced Blanchard to fifty years’ imprisonment.

Issues

¶ 14. Blanchard raises three issues on appeal: (1) whether the trial court erred by trying him in absentia; (2) whether he had received ineffective assistance of counsel; and (3) whether the verdict was against the weight of the evidence.

Discussion

(1)Trial In Absentia

¶ 15. Blanchard was released on bail pending his trial. After the first witness had testified, the trial judge briefly discussed Blanchard’s absence outside the presence of the jury. Blanchard’s attorney, Thompson, told the court that Blanchard was aware of his trial date and time, and that Blanchard had told Thompson the night before the trial that he would be present. Thompson did not request a continuance or otherwise object to the trial’s proceeding in her client’s absence.

¶ 16. On appeal, Blanchard asks that this Court review the issue as plain error. When a defendant fails to make a proper objection at trial, and thus fails to preserve the issue for appellate review, we will reverse if the error involved a fundamental and/or substantive right and resulted in a “manifest miscarriage of justice” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Brown v. State, 995 So.2d 698, 703 (Miss.2008).

¶ 17. An accused’s right to be present at every stage of his trial is guaranteed by the Sixth Amendment to the United States Constitution and Article 3, Section 26, of the Mississippi Constitution. See Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Corbin v. State, 99 Miss. 486, 55 So. 43, 44 (1911). This right may be waived based on a defendant’s “willful, voluntary, and deliberate absence from trial.” Jay v. State, 25 So.3d 257, 264 (Miss.2010). Mississippi Code Section 99-17-9 (Rev.2007) provides,

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

(Emphasis added.) Thus, a trial in absen-tia may be had where the accused “is on recognizance or bail ... and ... is in any way in default for nonappearance.... ” Miss.Code Ann. § 99-17-9.

¶ 18. To support his argument, Blanchard cites Jay v. State, 25 So.3d 257, and Ali v. State, 928 So.2d 237 (Miss.Ct.App.2006). However, in both cases, there was evidence that the defendant’s absence was not deliberate. In Jay, 25 So.3d at 264, there was evidence that the defendant was not mentally competent, and therefore, “[wjhether or not Jay’s absence at trial was a result of willful, voluntary, and deliberate actions turned on whether or not he was mentally competent at the time of trial.” In Ali, 928 So.2d at 240, the defendant’s testimony at a post-trial hearing on his motion for a new trial established that he did not understand when his trial was being held. The defendant in Ali was a Somalian citizen with limited knowledge of the English language. Id.

¶ 19. These cases clearly are distinguishable from the one before us in that there was evidence in each that the defendant’s actions were not deliberate. In the present case, Blanchard’s attorney made it clear to the trial court that he was aware of his trial date. Without evidence that Blanchard’s absence was not willful, voluntary, and deliberate, the trial judge did not commit plain error by conducting the trial in absentia.

(2) Ineffective Assistance of Counsel

¶20. Blanchard next argues that his trial counsel was ineffective for failing to request a continuance based on his absence and for failing to object to certain hearsay testimony, specifically, Shumpert’s testimony regarding his conversation with the hospital security guard. This Court has held:

Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983).
However, this Court may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record. M.R.A.P. 22; see also Havard v. State, 928 So.2d 771, 786 (Miss.2006).

Archer v. State, 986 So.2d 951, 955 (Miss.2008). Although, in his brief, Blanchard stipulates that the record on direct appeal is adequate, we find that Blanchard’s ineffective assistance of counsel claims are best reserved for a potential petition for post-conviction relief. See Read v. State, 430 So.2d 832, 841 (Miss.1983) (holding that we may review an ineffective assistance of counsel claim where “the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc. are not needed”) (emphasis added).

(3) Weight of the Evidence

¶ 21. Lastly, Blanchard argues that the verdict was against the weight of the evidence.

We will only disturb a jury verdict when “it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 [(Miss.2005)] (citing Herring v. State, 691 So.2d 948, 957 (Miss.1997)). This Court acts as a “thirteenth juror” and views the evidence in the light most favorable to the verdict. Bush, 895 So.2d at 843 (citing Herring, 691 So.2d at 957). A decision to reverse and order a new trial, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” Bush, 895 So.2d at 844 (quoting McQueen v. State, 423 So.2d 800, 803 (Miss.1982)).

Harris v. State, 970 So.2d 151, 156 (Miss.2007).

¶ 22. In his brief argument on this purported point of error, Blanchard avers that the victims’ descriptions of the robber did not match his physical appearance, that Mary’s testimony was “unreasonable and unreliable,” and that there was no physical evidence to tie Blanchard to the crime.

¶ 23. The only difference between the victims’ physical descriptions of the robber and Blanchard was that the robber had dreadlocks or braids, while Blanchard’s head was shaven. However, Mary Minor testified that, at the time of the robbery, Blanchard had dreadlocks. Moreover, Officer Shumpert testified that he had seen Blanchard roughly a week before the robbery and knew that Blanchard had longer hair which he kept in braids. Both Shum-pert and Mary deduced that Blanchard had shaved his head between the robbery and his arrival at the police station.

¶ 24. Regarding Mary’s testimony, Blanchard does not explain to this Court how her testimony was “unreasonable or unreliable.” While there were some inconsistencies in her testimony, it was the jury’s duty, not ours, to gauge the witness’s credibility. Moore v. State, 933 So.2d 910, 922 (Miss.2006) (citing Johnson v. State, 904 So.2d 162, 167 (Miss.2005); Davis v. State, 568 So.2d 277, 281 (Miss.1990)).

¶ 25. Finally, a limited amount of physical evidence, in itself, does not mean that a guilty verdict was against the weight of the evidence. See Moore v. State, 933 So.2d 910, 922-23 (Miss.2006) (burglary conviction not against the weight of the evidence where there was no physical evidence tying defendant to crime). Thus, this issue is without merit.

Conclusion

¶26. The trial court did not commit plain error by trying Blanchard in absentia when there was no evidence to indicate that his absence was involuntary. As for his ineffective assistance of counsel claims, we find that these matters are best preserved for post-conviction proceedings. Finally, we find no merit in Blanchard’s arguments regarding the weight of the evidence. For these reasons, we affirm Blanchard’s conviction and sentence.

¶ 27. CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTY (50) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J, CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER AND PIERCE JJ„ CONCUR. KING, J., NOT PARTICIPATING.

      . Because of her youth, the pseudonym Mary Minor is used in place of the accomplice's real name. At the time of the robbery, Mary was sixteen years old and was adjudicated delinquent in the youth court for her role in the robbery.


text:
    The ESTATE OF Ellen POPE, by and through James PAYNE, Individually and as the Personal Representative for the Use and Benefit of the Estate of Ellen Pope, and on behalf of and for the use and Benefit of the Wrongful Death Beneficiaries of Ellen Pope v. DELTA HEALTH GROUP, INC.
    No. 2009-CA-01988-SCT.
    Supreme Court of Mississippi.
    March 10, 2011.
    Anthony Lance Reins, Mary Jane Perry, attorneys for appellant.
    Lynda Clower Carter, Nicole Collins Huffman, Biloxi, attorneys for appellee.
    Before WALLER, C.J., DICKINSON, P.J., and KITCHENS, J.
   KITCHENS, Justice,

for the Court:

¶ 1. In this wrongful death, medical negligence action, the Court is asked to determine whether the general saving statute of Mississippi Code Section 15-1-69 applies when the original suit was dismissed for lack of standing. Because the original complaint was dismissed with prejudice, and no appeal was taken from that dismissal, we do not reach this issue, and affirm the trial court’s judgment in favor of the defendant.

Facts and Procedural History

¶ 2. Ellen Pope died on January 12, 2004, while a resident of the Shelby Nursing and Rehabilitation Center (“Shelby”). Her great-nephew, James Payne, filed a wrongful death suit on August 25, 2004, against Shelby, Delta Health Group, Inc., Pensacola Health Group, Inc., and a number of individuals. Payne filed the suit as the personal representative of his great-aunt and in his individual capacity as a wrongful death beneficiary. However, as a great-nephew, Payne was not a wrongful death beneficiary as contemplated by the wrongful death statute. Miss.Code Ann. § 11-7-13 (Rev.2004). Moreover, when Payne filed the suit, he had not yet been appointed administrator of his great-aunt’s estate. Payne was not appointed administrator until seven and a half months after filing the wrongful death action.

¶ 3. On October 6, 2006, the defendants filed a motion to dismiss, or in the alternative, for summary judgment, arguing that Payne lacked standing to bring the suit. Payne responded by filing a motion to substitute himself as administrator of his great-aunt’s estate under Mississippi Rule of Civil Procedure 17(a). The trial court granted Payne’s motion to substitute and denied the defendants’ motion to dismiss.

¶ 4. This Court granted the defendants’ petition for interlocutory appeal. Delta Health Group, Inc. v. Estate of Pope, 995 So.2d 123 (Miss.2008). We reversed the trial judge’s denial of the defendants’ motion to dismiss, finding that, because Payne had not been appointed administrator of his great-aunt’s estate at the time he filed the lawsuit, and, because he was not a wrongful death beneficiary as defined by Mississippi Code Section 11-7-13, he lacked standing. Id. at 125-26. The decision did not indicate whether the dismissal should have been with or without prejudice, but it remanded the case to the trial court “for entry of an order consistent with this opinion.” Id. at 126.

¶ 5. On remand, the trial judge dismissed the case with prejudice and entered a final judgment in favor of the defendants. The order was entered on October 28, 2008. The plaintiff did not appeal from that order.

¶ 6. One June 29, 2009, Payne attempted to revive the wrongful death action by filing another complaint. The only material difference between this second complaint and the original complaint was that Payne did not sue Shelby or the original individual defendants. Payne instead sued two named entities, Delta Health Group, Inc. (“Delta”), and Pensacola Health Trust, Inc. (“Pensacola”), and ten unnamed entities.

¶ 7. Delta immediately filed a motion to dismiss, arguing that the case previously had been dismissed with prejudice and that the statute of limitations had expired. After the plaintiffs response had been filed, Pensacola filed a motion to dismiss for deficient service of process. In the alternative, Pensacola moved to join Delta’s motion.

¶ 8. A hearing on the motions to dismiss was held on October 14, 2009. At the conclusion of the hearing, the trial judge requested additional briefing on Delta’s motion to dismiss. Regarding the issue of service of pi’ocess raised by Pensacola, the trial judge agreed to allow the plaintiff an additional sixty days in which to serve Pensacola.

¶ 9. On November 9, 2009, the trial judge entered an order granting Delta’s motion to dismiss. The judge found that the general saving statute did not apply because the original action was not “duly commenced” and because the case had been dismissed previously with prejudice. The order never mentioned Pensacola, and the parties concede that Pensacola is not a party to this appeal because it never was served properly with the complaint. See Stanley v. Allstate Ins. Co., 465 So.2d 1023 (Miss.1985) (holding that, until served, a named defendant in a complaint does not become a party for purposes of final, ap-pealable judgments under Mississippi Rule of Civil Procedure 54(b)).

Discussion

¶ 10. In dismissing the second complaint, the trial judge relied, in part, on the fact that the original complaint had been dismissed with prejudice. The dismissal with prejudice of the original complaint, whether right or wrong, remained unchallenged because the plaintiff never appealed from that order. Although the parties do not address this issue on appeal, the argument was raised below and the trial court clearly relied on the original complaint’s dismissal with prejudice in his ruling.

¶ 11. A dismissal with prejudice “bar[s] the right to bring or maintain an action on the same claim or cause.” Raynet v. Raytheon, 858 So.2d 132, 134 (Miss.2003) (quoting Pulley v. Chicago, R.I. & P.R., 122 Kan. 269, 251 P. 1100 (1927)). Thus, the plaintiff was barred from bringing a subsequent action after the original complaint was dismissed with prejudice. On appeal, the plaintiff cites case law holding that dismissal for lack of standing is a dismissal based on form rather than substance, and thus, the general saving statute should apply. Miss. Code Ann. § 15-1-69 (Rev.2003) (allowing a plaintiff to refile an action within one year of dismissal if the dismissal was, inter alia, “a matter of form”). However, this argument should have been made via an appeal from the dismissal of the original suit. In order to file a second complaint, the plaintiff would have had to challenge the dismissal. Because no attack was made, any and all further actions were procedurally barred.

Conclusion

¶ 12. The trial judge was correct in finding that the dismissal with prejudice of the original suit barred any further litigation of any or all of the same claims. Accordingly, we affirm the judgment of dismissal in favor of the defendant.

¶ 13. AFFIRMED.

WALLER, C.J, CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER AND PIERCE JJ., CONCUR. KING, J., NOT PARTICIPATING.


author: ISHEE, J.,

text:
    Julius Wesley KIKER, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-01341-COA.
    Court of Appeals of Mississippi.
    Nov. 10, 2009.
    Rehearing Denied June 15, 2010.

      Percy Stanfield, Jackson, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before MYERS, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Upon order of the supreme court, the Circuit Court of George County held a hearing on the merits of the motion for post-conviction relief filed by Julius Kiker. Finding no merit to the claim, the circuit court denied Kiker’s motion. Aggrieved, Kiker appeals and argues that his Sixth Amendment right to counsel was violated because one of his trial attorneys also represented a State witness who testified against Kiker at trial. Finding that Kiker received competent representation from a conflict-free attorney, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 29, 2003, Kiker was tried in the Circuit Court of George County for the murder of his wife, Sylvia Kiker. He was represented at trial by two attorneys, Darryl Hurt, Sr., and Sidney Barnett. Barnett was appointed to represent Kiker shortly after he was arrested, and about a week later, Hurt was hired by Kiker’s family. Following the trial, Kiker was convicted of murder. He filed a motion for a new trial, which the circuit court overruled. He then filed an appeal, and this Court handed down an opinion affirming Kiker’s conviction. Kiker v. State, 919 So.2d 190 (Miss.Ct.App.2005). The supreme court subsequently granted Kiker leave to proceed with a pro se motion for post-conviction relief solely on the issue of whether Kiker’s Sixth Amendment right to counsel was violated because Barnett, at the time he represented Kiker, also represented Bobby Crawford, a witness for the State who testified against Kiker. At the time of Kiker’s trial, Crawford had separate, unrelated charges pending against him. The circuit court held an evidentiary hearing on Kiker’s motion on July 10, 2008, and entered an order denying the requested relief on July 22, 2008.

¶ 3. At the evidentiary hearing, Lee Martin, who was with the Attorney General’s Office and was the lead prosecutor from Kiker’s trial, testified concerning Kiker’s trial. According to Martin, Hurt served as Kiker’s lead attorney. The State called twelve witnesses, and Hurt handled all of the cross-examination. Hurt conducted the direct examination of three of the five defense witnesses, including the questioning of Kiker. Hurt also handled voir dire and the opening and closing statements. Martin stated that “[n]ot only was there never a deal offered to Mr. Crawford; there was never any discussion, negotiation about a potential plea bargain with Mr. Crawford.” Martin was not aware that Crawford had charges pending against him until after trial began, and he was not involved in the case against Crawford. According to Martin, once Barnett realized that there was a potential conflict of interest, he informed the circuit court and the State. Unfortunately, this did not take place until after Kiker’s trial had begun.

¶ 4. While Martin admitted that Crawford provided incriminating evidence against Kiker, he denied that Crawford’s testimony was essential or the “center-pole” of the case. Martin pointed out that the State also presented the following evidence: (1) the victim’s son who saw Kiker with a gun and saw his mother and Kiker arguing earlier in the day, (2) the deputy sheriff who responded to the 911 call and saw Kiker in possession of a gun and attempting to conceal the body, and (3) the physical evidence collected at the scene that connected Kiker with the murder. Martin described Hurt’s cross-examination of Crawford as “pretty typical of cross-examination of a jail-house informant.” Martin testified that Hurt: (1) tried to characterize Crawford as a professional State witness, (2) brought out Crawford’s criminal history, (3) inquired about Crawford being a drug user, and (4) connected Crawford to the victim’s family.

¶5. Kevin Bradley, a former assistant district attorney for George and Greene Counties, also testified at the post-conviction-relief hearing. During Bradley’s term as assistant district attorney, he handled the charges against Crawford. Bradley testified that Crawford had two charges pending in October 2005, both of which related to events on or about March 14, 2002. One indictment was for possession of methamphetamine, and the other was for possession of precursor chemicals. A bench warrant was issued for Crawford on October 20, 2003, almost three months after Kiker’s trial; however, the warrant was never served on Crawford until July 19, 2005. According to Bradley, Crawford was presumably on the run in the interim. In July 2005, Crawford was also charged with failing to register as a sex offender. Crawford pleaded guilty to all three charges. On each of the first two charges, the circuit court sentenced him to eight years in prison, with three years to serve and five years of post-release supervision, with the sentences to run concurrently. On the third charge, the circuit court sentenced him to five years in prison, with three years to serve and two years of post-release supervision, with the sentence to run consecutively to the first two sentences. Bradley testified that he was not involved in Kiker’s case, and there was no deal with Crawford to elicit his testimony.

¶ 6. The circuit court concluded that even though Barnett was representing both Kiker and Crawford, there was no actual conflict at the time Crawford testified against Kiker. The circuit court found that while Barnett did represent Kiker at trial, Hurt cross-examined Crawford and handled the vast majority of the trial. Furthermore, the circuit court found that Kiker’s attorneys were not deficient and that the State had not offered Crawford any plea deal in exchange for testifying. Accordingly, the circuit court denied Kiker’s motion for post-conviction relief. Kiker timely filed an appeal following that judgment.

STANDARD OF REVIEW

¶ 7. This Court’s standard of review regarding a trial court’s denial of a motion for post-conviction relief is well settled: we will not disturb the trial court’s factual findings unless they are clearly erroneous. Thompson v. State, 990 So.2d 265, 267(¶ 3) (Miss.Ct.App.2008) (citation omitted). However, we will review questions of law under a de novo standard. Id.

DISCUSSION

¶ 8. Kiker essentially raises only one issue on appeal — that his Sixth Amendment right to counsel was violated because Barnett also represented Crawford, who had charges pending against him and who testified against Kiker. Kiker argues that his defense was prejudiced because of the conflict of interest that arose due to Barnett’s representation of both Kiker and Crawford. It is Kiker’s contention that the circuit court abused its discretion in refusing to grant his motion for post-conviction relief based on this issue. In support of his argument, Kiker cites numerous cases that hold that a defendant’s Sixth Amendment right is violated when his counsel has an actual conflict of interest because of counsel’s representation of the defendant and a co-defendant or a witness who testifies against the defendant.

¶ 9. Kiker claims to have raised eight issues on appeal, each of which he argues shows the circuit court’s ruling to be clearly erroneous. He takes issue with five of the circuit court’s findings: (1) Barnett had no actual conflict with Kiker; (2) Crawford was not a key witness; (3) the State had no deal with Crawford; (4) the performances by Kiker’s attorneys were not deficient; and (5) Kiker proceeded on with the trial after finding out about Barnett’s representation of Crawford. Additionally, Kiker takes issue with three additional issues not addressed by the circuit court: (1) the court had a duty to intervene after learning that Barnett represented both Kiker and Crawford; (2) the jury was exposed to the conflict; and (3) the court had a duty to safeguard the proceedings. These are all issues related to Kiker’s claim that his defense was prejudiced by Barnett’s representation.

¶ 10. The Sixth Amendment to the United States Constitution provides that all criminal defendants have the right to assistance of counsel for his defense. The Sixth Amendment right to counsel is applicable to the states through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

¶ 11. In the present case, there is no question that a potential conflict of interest existed due to Barnett’s representation of both Kiker and Crawford. However, there was no evidence or allegation that Kiker’s other attorney, Hurt, had any conflict of interest. The circuit court found that:

A review of the transcript of the trial clearly shows that [Hurt] was the individual that cross-examined [Crawford] and that it was a full cross-examination. The Court finds that out of the 14 witnesses who testified on behalf of the State of Mississippi, [Hurt] cross-examined every one of those witnesses. The Court finds that [Hurt] conducted voir dire, opening statement, and closing arguments on behalf of the Defendant. The Court specifically finds that the attorneys who represented [Kiker] at trial were not deficient and that no prejudice resulted to the Defendant as a result of [Barnett’s] representation of one witness for the State of Mississippi. That information was not withheld from the jury or the Defendant, [Kiker], and that no actual conflict existed, especially in light of [Hurt’s] role as lead attorney. [Hurt] had absolutely no duties to [Crawford] and conducted a full cross-examination of that witness.

For the sake of thoroughness, we will very briefly address each of the circuit court’s findings with which Kiker takes issue. First, the circuit court did not state that Barnett had no actual conflict, only “that there was not an actual conflict in existence at the time the State’s witness, [Crawford], testified.... ” Second, the circuit court did not find that Crawford was not a key witness; the court found that he was not the “eenterpole” of the State’s case because the State presented additional testimony of witnesses to events that day and scientific evidence. Third, the circuit court found that Crawford did not have a deal with the State. This is borne out in the record and by the fact that he did not plead guilty to the crimes for which he was charged until more than three years after Kiker was convicted. Fourth, he circuit court found that Kiker’s attorneys were not deficient and that Kiker suffered no prejudice due to their representation of him. Kiker argues that this finding is “irrelevant and gratuitous.” To the contrary, we find that it was an appropriate finding considering that Kiker was alleging that he was not adequately represented at his trial. Fifth, as for the trial court’s finding that Kiker proceeded on with trial after learning about Barnett’s conflict, we agree that it is not proper to fault Kiker for this issue. Nevertheless, we see no reason why this statement by the circuit court requires reversal in light of the ultimate fact that Kiker received competent, conflict-free representation. Sixth, as for the “findings not made by the trial court,” which Kiker cites, we do not find that these had any effect on the trial in light of the fact that Kiker was represented by a conflict-free attorney who handled the vast majority of the case, including the cross-examination of the State’s witness with whom Barnett had a conflict.

¶ 12. In Stringer v. State, 485 So.2d 274, 275 (Miss.1986) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)), the Mississippi Supreme Court referenced the United States Supreme Court’s standard for determining whether a conviction requires reversal based on a conflict of interest. The Mississippi Supreme Court stated that: “We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance.” Id. (quoting Cuyler, 446 U.S. at 350, 100 S.Ct. 1708).

¶ 13. Kiker cites numerous cases that he claims support his position, but we find that those cases are distinguishable. In United States ex rel. Stewart on Behalf of Tineo v. Kelly, 870 F.2d 854, 857 (2nd Cir.1989), the Second Circuit addressed the issue of a single attorney representing both the defendant and a witness for the prosecution. The Second Circuit reversed the judgment of the district court that found that Jose Tineo’s Sixth Amendment rights were violated when the trial judge denied the defendant his counsel of choice. The Second Circuit concluded that the trial judge did not abuse his discretion in denying Tineo’s right to counsel of his choice because Tineo’s requested counsel had a conflict in that he had previously represented the government informant who testified against Tineo. Id. at 858. In United States v. Combs, 222 F.3d 353, 361 (7th Cir.2000) (citing United States v. Lowry, 971 F.2d 55, 59 (7th Cir.1992)), which also involved a single attorney for the defendant who represented a witness for the prosecution, the Seventh Circuit noted that a defendant has a right to “representation by an attorney unfettered by any conflict of interest.” The Seventh Circuit went on to note that “[t]he court is required to take action to protect the defendant’s right to effective assistance of counsel unless, after inquiry, the court believes that a conflict of interest is unlikely to arise.” Id. (citing United States v. Vasquez, 966 F.2d 254, 261 (7th Cir.1992)). The other cases cited by Kiker present similar situations involving a single attorney who had a conflict of interest; none of those cases involved a factual scenario similar to his case. See, e.g., United States v. Baker, 10 F.3d 1374 (9th Cir.1993) (overruled on other grounds); Serra v. Mich. Dep’t of Corr., 4 F.3d 1348 (6th Cir.1993).

¶ 14. Kiker argues on appeal that the question before the circuit court was, “did Barnett have divided loyalties or not?” As we have stated, there is no question that Barnett had divided loyalties. At the post-conviction-relief hearing on this matter, the lead prosecutor in Kiker’s trial readily stated that Barnett should have informed Kiker about Barnett’s representation of Crawford. Nevertheless, Barnett did not cross-examine Crawford, and he seems to have played a negligible role in the trial. Barnett did not cross-examine any of the State’s twelve witnesses, did not conduct voir dire, did not make the opening or closing statement, and only conducted the direct examination of two of the five defense witnesses. When Barnett became aware of the conflict, he brought it to the attention of the circuit court and the State.

¶ 15. Based on the unique facts of the present case, we find no abuse of discretion with the circuit court’s denial of Kiker’s motion for post-conviction relief. Despite Barnett’s conflict of interest, the situation was remedied by Hurt’s representation of Kiker and his handling of the vast majority of the trial, including the questioning of Crawford. Kiker has failed to show any actual conflict or prejudice to his case that persisted despite Hurt’s representation. Throughout his trial, Kiker was competently represented by conflict-free counsel. Accordingly, we find that this issue is without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . According to Martin, at the request of the victim's family, the George County District Attorney's Office allowed the Attorney General's Office to handle Kiker's prosecution.

      . Testimony from the post-conviction-relief hearing indicates that twelve witnesses testified on behalf of the State. Nevertheless, the circuit court was correct that Hurt handled the cross-examination of every State witness.


author: IRVING, J„

text:
    ESTATE OF Cynthia Gilkey WALLACE, Deceased, by Louis M. WALLACE, Appellant v. Emad H. MOHAMED, M.D., Bristol-Myers Squibb Co. and Sanofi-Synthelabo, Inc., Appellees.
    No. 2008-CA-01334-COA.
    Court of Appeals of Mississippi.
    March 2, 2010.
    Rehearing Denied June 22, 2010.
    Shirley C. Byers, Jackson, attorney for appellant.
    L. Carl Hagwood, Jackson, Diane V. Pradat, attorneys for appellees.
    Before MYERS, P.J., IRVING and GRIFFIS, JJ.
   IRVING, J„

for the Court:

¶ 1. After Louis Wallace, as administrator of Cynthia Gilkey Wallace’s (Gilkey) estate, filed a wrongful-death lawsuit against Dr. Emad H. Mohamed, Dr. Mohamed intervened in the estate-administration suit in the Lowndes County Chancery Court. Evidence was presented which suggested that Wallace may not have been Gilkey’s legitimate spouse, due to Gilkey’s prior marriage to Keith Magee. Thereafter, the chancery court removed Wallace as administrator and appointed the chancery court clerk in his place. Feeling aggrieved, Wallace appeals and asserts that: (1) Dr. Mohamed did not have standing to intervene in the administration of the estate, and (2) Wallace was improperly removed as administrator of the estate.

¶ 2. We agree that Dr. Mohamed did not have standing to intervene in the administration of the estate. Furthermore, we find that, even if Dr. Mohamed had standing to intervene, Wallace should not have been removed as administrator. We also find that there is insufficient evidence to support the chancery court’s implicit finding that Wallace was not Gilkey’s legitimate spouse. Therefore, we reverse and render the judgment of the chancery court. We also remand to the chancery court for reinstatement of Wallace as administrator of Gilkey’s estate.

FACTS

¶ 3. Gilkey was the mother of two children — J’Bria Gilkey, born on October 19, 1983, and Christopher Wallace, born on April 28, 1993. The evidence at trial indicates that Christopher is accepted to be the child of Gilkey and Wallace, while J’Bria is the child of Gilkey and Magee. Prior to her marriage to Wallace, Gilkey married Magee on January 5, 1984. Wallace and Gilkey were married on February 4, 1989. The record contains a divorce petition that was filed by Gilkey on February 23, 1989, seeking a divorce from Ma-gee; however, Gilkey did not pursue that petition, and it was dismissed for lack of prosecution. On November 26, 2004, Gil-key passed away.

¶ 4. On September 29, 2005, Wallace filed a petition for administration, requesting that he be appointed as administrator of Gilkey’s estate. His petition alleged that Gilkey had passed away “as a result of a fatal condition believed to have been caused by medical negligence.” The petition stated that Wallace had “individually, and on behalf of [Christopher], a minor, retained [an attorney] to investigate and prosecute any claim they may have due to the death of [Gilkey]....” J’Bria joined in Wallace’s petition. On October 4, 2005, the chancery court granted Wallace’s petition and appointed him as the administrator of Gilkey’s estate. The court’s decree stated that Gilkey was “believed to have left as her sole and only heirs at-law, [Wallace] her husband, her natural daughter [J’Bria], an adult, and [Christopher], a minor, her natural son.”

¶ 5. On November 30, 2005, Wallace, as administrator of Gilkey’s estate, filed a wrongful-death complaint against Dr. Mohamed. On October 22, 2007, Dr. Mohamed filed a motion to intervene in the administration of the estate “for limited purposes,” wherein he alleged that Gilkey had married Magee on January 12, 1984, and that Gilkey had never been divorced from Magee. Dr. Mohamed further pointed out in the motion that J’Bria and Bertha Gilkey, Gilkey’s mother, had both testified at depositions that they thought that Gil-key was still married to her first husband when she married Wallace. Dr. Mohamed further asserted that both J’Bria and Bertha had testified that Wallace was also aware of Gilkey’s first marriage, although he admitted that Wallace had denied any knowledge of the first marriage. Dr. Mohamed contended that the preferred choice for administrator of Gilkey’s estate would be Magee, followed by J’Bria “and [Gil-key]’s minor son, Christopher (through his legal guardian).” Dr. Mohamed ultimately requested that Wallace be removed as administrator and that the chancery court “thereafter appoint an administrator following consideration of the facts as set forth above and in keeping with Mississippi law.” Attached to Dr. Mohamed’s petition were a number of documents, including marriage licenses, the unpursued complaint for divorce that Gil-key had filed, and a copy of the wrongful-death complaint.

¶ 6. J’Bria testified at her deposition that her mother had been married to Ma-gee before she married Wallace and that her mother and Magee were divorced “probably a year or so after they [Gilkey and Wallace] were married.... ” When asked whether Wallace was aware of Gil-key’s first marriage, J’Bria stated: ‘Tes ... She told him.” When asked for details of Gilkey’s marriage to Magee, J’Bria stated that she did not know: (1) how long Magee and Gilkey were married, (2) where Magee and Gilkey were married, or (3) when Magee and Gilkey were married. J’Bria stated that “all” she knew was that “they were married when I was first born.... ” J’Bria stated that she was born on October 19, 1983, but the marriage license for Magee and Gilkey states that they were married on January 5, 1984. Therefore, the record belies J’Bria’s statement that Magee and Gilkey were married at the time of her birth. J’Bria consistently testified that Gilkey and Magee were divorced, although J’Bria did not know when the divorce was finalized or where it was filed. Clearly J’Bria’s testimony was insufficient to find that Gilkey and Magee had not been divorced prior to Gilkey and Wallace’s marriage.

¶ 7. Bertha testified at her deposition that Gilkey had been married twice before her marriage to Wallace — first to Magee, and then to a man named Ebenezer Iyal-lah. As had J’Bria, Bertha testified that she thought that Gilkey was still married to one of those men when she wed Wallace. Also like J’Bria, Bertha consistently testified that Gilkey had divorced both men at some point, although Bertha did not know when or where. There are no documents in the record supporting Bertha’s assertion that Gilkey and Iyallah were married.

¶ 8. During his deposition, Wallace testified that, to his knowledge, Gilkey had not been married before she and Wallace were wed.

¶ 9. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. Our supreme court has discussed the standard of review that is employed when an appellate court reviews the judgment of a chancellor:

We will not interfere with or disturb a chancellor’s findings of fact unless those findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Smith v. Hollins, 905 So.2d 1267, 1270 [ (¶ 6) ] (Miss.2005) (citations omitted). For questions of law, we employ a de novo standard of review and will reverse only for an erroneous interpretation or application of the law. [M] (citations omitted).

In re Estate of Farmer ex rel. Farmer, 964 So.2d 498, 499 (¶ 3) (Miss.2007).

1. Standing

¶ 11. Wallace first contends that Dr. Mohamed was without standing to intervene in the administration of the estate. In National Heritage Realty, Inc. v. Estate of Boles, 947 So.2d 238 (Miss.2006), our supreme court discussed whether a nursing home had standing to intervene in the administration of an estate. Ultimately, the Boles court found that the nursing home had standing “before the chancery and circuit courts.” Id. at 246 (¶ 24). Although the supreme court so found, it came to that conclusion due to circumstances not present in our case. Specifically, the supreme court found that the nursing home had standing to intervene in the chancery court action because it had “challenged the [chancery court’s] subject matter jurisdiction to open the Estate.” Id.

¶ 12. In the present case, Dr. Mohamed has not attacked the jurisdiction of the chancery court. Therefore, we find the holding in Boles inapplicable to the case before us. However, we do find Dr. Mohamed’s position analogous to the position of the defendant in Estate of Johnson v. Hemingway, 779 So.2d 164 (Miss.Ct.App.2000). In that case, this Court found that a doctor had no standing to intervene in an heirship action brought in chancery court. Id. at 166 (¶ ¶ 5-8). In so finding, we stated that:

A medical[-]malpractice action had been filed against [the doctor] alleging that his negligence caused the death of [the decedents]. [The doctor] was entitled to defend that action. However, there is no suggestion that [the doctor’s] defense to the claim of negligence would be in anyway impacted by the paternity or heirship action. If [the doctor] was negligent, his liability existed independent of the paternity or heirship action. Likewise[,] his substantive defenses to the medical[-]malpraetice action existed independent of, and would not be impacted by, the paternity or heirship actions.
[The doctor] has given his reason for intervention as a desire to avoid the cost of defending an action filed by the wrong party. The existence of an economic interest, without more, is insufficient to allow ... intervention. Cohen v. Cohen, 748 So.2d 91[, 93] (¶ 12) (Miss.1999).

Id. at 166-67 (¶ ¶ 8-9) (emphasis added).

¶ 13. Just as the doctor in Johnson, Dr. Mohamed has no reason to intervene other than “a desire to avoid the cost of defending an action filed by the wrong party.” Therefore, we find that he lacked standing to intervene in the administration of Gil-key’s estate. For this reason, we reverse and render the judgment of the chancery court that removed Wallace as the administrator of Gilkey’s estate.

2. Removal of Wallace as Administrator

¶ 14. Although we have found that Dr. Mohamed lacked standing to intervene in the administration of the estate, we explain why our result would be the same even if we were to find that Dr. Mohamed had standing to intervene in this case.

¶ 15. In its order removing Wallace as the administrator of Gilkey’s estate, the chancery court stated the following, which we quote verbatim:

Before the [c]ourt is Emad H. Mohamed, M.D.’s ... [m]otion to [i]nter-vene for [l]imited [p]urposes. In essence, Dr. Mohamed wants to intervene in this case to see that Louis M. Wallace ... is removed as administrator of the estate and someone else appointed to serve.
When Mr. Wallace filed for administration, he swore in the petition that he was the widower of Cynthia Gilkey Wallace .... J’Bria Gilkey also joined in the petition as the daughter of the decedent[,] and she swore that Mr. Wallace was the decedent’s husband.
Dr. Mohamed is a defendant in a medi-eal[-]malpractice action filed by this [e]state and the wrongful death beneficiaries of the decedent. In the course of discovery, it was determined that the decedent was married to Keith Magee when she married Mr. Wallace. A divorce complaint was filed by the decedent!,] but the action was not pursued!,] and a divorce was never granted. Hence, the decedent remained married to Mr. Magee at her death and when she purportedly married Mr. Wallace.
The [c]ourt believes that this estate would be better served by the [c]lerk of this [c]ourt being appointed as [administrator.
IT IS THEREFORE ORDERED that Dr. Mohamed’s [m]otion to [intervene solely to see that Mr. Wallace is removed as administrator and a disinterested third party appointed to that position is sustained. Louis M. Wallace is removed as administrator of the estate and [the clerk of the court] is appointed in his stead. [The clerk]’s official bond is to serve as her bond in this action. The [c]lerk is hereby directed to mail a copy of this [o]rder to all counsel of record after same is filed.

(Emphasis added). We note several points about this order: first, it did not find that Wallace had committed a fraud upon the court; second, there was no specific reason given as to why Wallace was inadequate to serve as administrator; and third, the order implied that the chancery court was attempting to appoint “a disinterested third party” as administrator.

¶ 16. We find that Wallace should not have been removed as the administrator. We find that this is so because the evidence is wholly inadequate to show that Wallace was not Gilkey’s legal husband at the time of her death. The only evidence of such has already been related in this opinion. To summarize, the evidence was that: (1) Gilkey and Magee were married prior to Gilkey’s marriage to Wallace; (2) no divorce decree was presented to show that Gilkey and Magee were divorced, although an unprosecuted petition was presented; (3) J’Bria testified that Wallace and her mother were never properly married, although she maintained that Gilkey and Magee had divorced at some point in time; and (4) Bertha testified that Gilkey had been married twice before Gilkey married Wallace and had been divorced at some unknown times.

¶ 17. Neither Bertha nor J’Bria were able to affirmatively provide any specific date or county where they believed that Gilkey had been divorced from Magee, although both were certain that the two had divorced at some time. Although both believed that the divorce had occurred after Gilkey’s marriage to Wallace, neither was able to provide an accurate timeline of what had happened when. Furthermore, although there was evidence of Magee’s marriage to Gilkey, there was no evidence showing that the marriage had not ended by divorce. Most significantly, there were no certificates from the clerks of any of the counties where Gilkey and Magee had lived prior to Gilkey’s marriage to Wallace affirmatively showing that there was no divorce from Magee on record in any of those counties. Ultimately, that is the proof that Dr. Mohamed would have needed to present in order to prove that Wallace’s marriage to Gilkey was invalid.

¶ 18. As stated by our supreme court, “a subsequent marriage raises the presumption that the former marriage has been terminated by divorce or death of the prior spouse.” Estate of Erwin v. Hodge, 317 So.2d 55, 57 (Miss.1975). The Erwin court then went on to affirm the procedure for proving such cases:

The practical course of proof in such a case would be to show where each party to the prior marriage had resided up to the time of the second marriage, and then to procure from the clerk of the proper court in each county a certificate of search showing that no divorce or annulment had been granted by the court of which he is clerk.

Id. (quoting Pigford Bros. Constr. Co. v. Evans, 225 Miss. 411, 421, 83 So.2d 622, 625 (1955)). In the present case, the proof must fail. There has been no procurement of certificates from the clerks in each of the counties where Gilkey lived “showing that no divorce or annulment had been granted.” Accordingly, we find that the evidence was wholly insufficient to support Dr. Mohamed’s assertion that Wallace was not Gilkey’s legal spouse.

¶ 19. Furthermore, we note that there was no finding that Wallace had committed a fraud upon the court. Additionally, the chancery court made no finding that Wallace is not the natural father of Christopher, despite Dr. Mohamed’s suggestions to the contrary. Therefore, given the statutory order of preference, Wallace is preferred to serve over the chancery court clerk because he is the natural father of one of Gilkey’s heirs. As to Gilkey’s other heir, J’Bria joined in the petition requesting that Wallace be appointed as the administrator of Gilkey’s estate. Finally, if the chancery court were attempting to appoint a “disinterested third party,” how would Wallace be any less adequate than the chancery court clerk? Since there was no finding that Wallace had committed any fraud upon the court, the removal could have only been on the basis of the court’s finding that Wallace was not Gilkey’s legal husband at the time of her death. As we have already discussed, the evidence was wholly insufficient to support any such finding.

¶ 20. In short, we find that Dr. Mohamed lacked standing to challenge the administration of Gilkey’s estate. Furthermore, we find that, even had Dr. Mohamed had standing, there is insufficient evidence to support the chancery court’s removal of Wallace as administrator. Accordingly, the judgment removing Wallace as administrator is reversed and rendered, and the case is remanded to the chancery court for entry of an order reinstating Wallace as administrator of Cynthia Gilkey Wallace’s estate.

¶ 21. THE JUDGMENT OF THE CHANCERY COURT OF LOWNDES COUNTY IS REVERSED AND RENDERED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

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

      . Magee's name is sometimes spelled "McGee” in the record.

      . Mississippi Code Annotated section 91 — 7— 63(1) (Supp.2009) gives the order of preference for appointment of administrator as spouses first, then "such others as may be next entitled to distribution if not disqualified.”


author: MAXWELL, J.,

text:
    Edmond JENKINS, Appellant v. Rose JENKINS, Appellee.
    No. 2008-CA-01895-COA.
    Court of Appeals of Mississippi.
    July 27, 2010.
    Rehearing Denied Dec. 14, 2010.
    Certiorari Denied March 10, 2011.
    E. Michael Marks, Jackson, Julie Ann Epps, Canton, attorneys for appellant.
    Joseph A. Fernald, Jr., Brookhaven, attorney for appellee.
    Before KING, C.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. The Chancery Court of Copiah County granted Rose Jenkins a divorce from Edmond Jenkins on the ground of habitual cruel and inhuman treatment. Edmond appeals claiming the chancellor erred in rejecting his recrimination defense, which was based on Rose’s alleged adultery. Because we find sufficient evidence to support the chancellor’s determination that Edmond’s cruelty, not Rose’s adultery, caused the separation, we affirm the cruelty-based divorce.

FACTS

¶ 2. Edmond and Rose were married for approximately twelve years before separating in June 2006. They had two children from their marriage.

¶ 3. At trial, Rose testified that Edmond exhibited a pattern of cruel behavior. One incident in May 2006 involved Edmond locking Rose and the children out of the house. He also disconnected the spark plugs in her car, forcing Rose to contact a friend to pick up her and the children. Another incident occurred in June' 2006, soon after the two had separated, when Rose and the children visited Edmond at the marital home. After hugging his children and telling them goodbye, Edmond walked to the front porch, placed a noose around his neck, and tried to hang himself to death. His unsuccessful suicide attempt took place in front of the children. In another post-separation incident, Edmond argued with Rose while riding in a ear with her and the children. According to Rose, Edmond became so enraged that he opened the door and threatened to jump from the vehicle. Rose managed to pull the car to the side of the road without Edmond injuring himself. When Rose attempted to discuss divorce with Edmond, he told her the only way they would separate would be by death.

¶ 4. Rose filed for divorce in June 2006, soon after the hanging incident. She asserted the fault-based grounds of adultery and habitual cruel and inhuman treatment. Edmond counterclaimed alleging these same grounds. In Rose’s amended response to Edmond’s counterclaim, she admitted committing adultery since November 2007. Edmond later withdrew his counterclaim.

¶ 5. The chancellor granted Rose a divorce based on Edmond’s habitual cruel and inhuman treatment. He also awarded full custody of the children to Rose and ordered Edmond to pay child support. The chancellor concluded Edmond’s habitual cruelty was the proximate cause of the separation. Although the chancellor found Rose had committed adultery, he determined her adultery did not cause the separation.

STANDARD OF REVIEW

¶ 6. Our review of domestic matters is limited. Morris v. Morris, 804 So.2d 1025, 1027 (¶ 6) (Miss.2002). “[The appellate court] will not disturb the findings of a [c]hancellor unless the [chancellor is manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Bell v. Parker, 563 So.2d 594, 596-97 (Miss.1990). For questions of law, our standard of review is de novo. Lawrence v. Lawrence, 956 So.2d 251, 256 (¶ 12) (Miss.Ct.App.2006).

DISCUSSION

¶ 7. Edmond does not contend insufficient evidence exists to grant Rose a divorce based upon his habitual cruel and inhuman treatment. His sole argument instead focuses on Rose’s adultery, which he claims bars her from obtaining a divorce.

¶ 8. Under the common-law doctrine of recrimination, if each party to a marriage proved a fault-based ground for divorce, then neither party was entitled to a divorce. Dorman v. Dorman, 737 So.2d 426, 430 (¶ 9) (Miss.Ct.App.1999). The doctrine is “founded on the basis that the equal guilt of a complainant bars his/her right to divoree[.]” Parker v. Parker, 519 So.2d 1232, 1235 (Miss.1988). And under the common-law principle, “the complainant must come into court with clean hands.” Id. For the doctrine to apply, “[t]he offenses committed by each spouse need not be the same,” but both spouses’ offenses must be sufficient to constitute grounds for divorce. Dorman, 737 So.2d at 430 (¶ 9).

¶ 9. But recrimination is no longer an absolute bar to divorce. In 1964, the Mississippi Legislature modified the common-law recrimination defense by enacting Mississippi Code Annotated section 93-5-3 (Rev.2004). Dorman, 737 So.2d at 430 (¶ 10). Section 93-5-3 provides: “If a complainant or cross-complainant in a divorce action shall prove grounds entitling him to a divorce, it shall not be mandatory on any chancellor to deny such party a divorce, even though the evidence might establish recrimination on the part of such complainant or cross-complainant.” As a result, chancellors are no longer bound by the strictures of the common-law doctrine. Dorman, 737 So.2d at 430 (¶ 10). Therefore, under Section 93-5-3, “one party’s adultery, even if established at trial, does not prevent the chancellor from granting a divorce to that party.” Dickerson v. Dickerson, 34 So.3d 637, 643 (¶ 19) (Miss.Ct.App.2010).

¶ 10. This Court has further held: “There can be but one divorce granted.... Tn a situation where both parties are at fault, if a divorce is to be granted, the chancellor must determine which party’s conduct was the proximate cause of the deterioration of the marital relationship and the divorce itself.’ ” Garriga v. Garriga, 770 So.2d 978, 983-84 (¶¶ 23-24) (Miss.Ct.App.2000) (quoting Hyer v. Hyer, 636 So.2d 381, 384 (Miss.1994)).

¶ 11. In Parker, 519 So.2d at 1236, the supreme court found a chancellor committed reversible error by denying a wife’s divorce on the ground of habitual cruel and inhuman treatment based on her own adultery. The court reasoned:

While this Court is not suggesting con-donation of the conduct of the appellant wife after the separation of the parties, when we balance out the uncontradicted evidence that the conduct of the appellee was responsible for the separation of the parties and the dissolution of their marriage; that the misconduct of the appellant wife occurred after the destruction of the marriage; and that the [Legislature has, in the least, greatly weakened the defense of recrimination; we are of the opinion that the learned chancellor erred in denying a divorce to [the] appellant[J

Id.

¶ 12. More recently in Langdon v. Langdon, 854 So.2d 485, 490 (¶¶14, 16) (Miss.Ct.App.2003), this Court upheld a chancellor’s decision to grant a divorce to a wife based on her husband’s habitual cruel and inhuman treatment, despite her own “undenied, uncondoned adultery.” Because the evidence showed the husband’s cruelty, and not the wife’s adultery, caused the separation, this Court affirmed the chancellor’s judgment. See id.

¶ 13. Here, the chancellor rejected Edmond’s recrimination defense and found:

[Edmond] put on evidence that [Rose] had more than one adulterous affair as early as the year 2006. Obviously the evidence was put on to either condone [Edmond’s] behavior toward his wife or to challenge the cause of the failed marriage. However, [Edmond] admits that he did not learn of [Rose’s] affairs until November or December of 2007, and [Rose] denies any such behavior prior to [then]. From the evidence, the court can’t find that it was [Rose’s] behavior which caused the ... separation.... [T]he Court is satisfied from the evidence that [Edmond] is guilty of habitual cruel and inhuman treatment toward[ ] his wife, and that his conduct is the proximate cause of the ... separation.

¶ 14. Though Edmond resolutely asserts Rose engaged in adultery before the parties separated, he fails to point out specific evidence to support his claim. Edmond directs our attention to Donna Bryant’s testimony that Rose had been romantically involved with several men. Bryant began baby-sitting the children in March or April 2006, slightly before the separation. But Bryant did not testify that Rose had committed any adulterous acts before the separation.

¶ 15. The evidence is scant that Rose engaged in any adulterous conduct prior to the separation. Equally lacking is proof that her adulterous conduct proximately caused the parties’ separation. Under these facts, we find the chancellor did not manifestly err in rejecting Edmond’s recrimination defense and, therefore, affirm.

¶ 16. THE JUDGMENT OF THE CHANCERY COURT OF COPIAH COUNTY IS AFFIRMED. 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.