author: KITCHENS, Justice,

text:
    WW, INC. d/b/a Weight Watchers of Greater Mississippi, BJM, Inc. d/b/a Weight Watchers of Southern Alabama and Florida Panhandle v. RAINBOW CASINO-VICKSBURG PARTNERSHIP, L.P. and Bally Technologies, Inc.
    No. 2010-CA-00361-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.

      Wilson H. Carroll, Robert S. Mink, Jackson, attorneys for appellants.
    Quinby Hillman Breland, IV, William L. Smith, attorneys for appellees.
    Before DICKINSON, P.J., LAMAR and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. In this appeal, we are asked to determine whether the statute of limitations barred an action against a casino for its alleged involvement in an embezzlement scheme. Finding that the plaintiff failed to provide any evidence of fraudulent concealment by the casino, we agree with the trial court that the statute of limitations had run at the time the suit was filed. Furthermore, because the plaintiff did not properly request a continuance for further discovery, we affirm the trial court’s grant of summary judgment in favor of the defendants.

Facts

¶ 2. On December 5, 2005, Weight Watchers discovered that its bookkeeper, Dianne Belk, had embezzled nearly $1,000,000 from the business over a six-year period. Belk embezzled the money by writing checks to herself from Weight Watchers accounts. She concealed her writing of unauthorized checks by inputting legitimate vendors’ names in the computerized bookkeeping system as the ostensible payees. However, Belk would type her name as payee on the paper checks. Belk then would cash the checks at local banks and casinos, including the Rainbow Casino, and she often would gamble with the embezzled money. Belk reported her winnings to the Internal Revenue Service via W-2G forms provided by the casino, and she paid taxes on those winnings. According to the complaint, Belk lost roughly $240,000 of the stolen funds to Rainbow Casino.

¶ 3. On January 9, 2009, more than three years after first learning of Belk’s embezzlement activities, Weight Watchers filed suit in the Hinds County Circuit Court, First Judicial District, against Dianne Belk, Robert F. Belk, Jr. (Dianne’s husband), Rainbow Casino-Vicksburg Partnership, L.P., Bally Technologies Inc. (the casino’s management company), and five John Doe defendants. Weight Watchers’ claims against Rainbow Casino and Bally Technologies (hereinafter collectively referred to as “Rainbow” or “the casino”) were based on fraud, unjust enrichment, conversion, and negligence. Rainbow moved for summary judgment, arguing that the three-year statute of limitations had begun to run, at the latest, on December 5, 2005, the day Weight Watchers first learned that Belk had been cashing unauthorized checks at the casino. Rainbow also argued, in the alternative, that summary judgment was appropriate because the casino was a holder in due course and that it did not have a legal duty to investigate the circumstances surrounding issuance of the checks.

¶ 4. Weight Watchers countered that Rainbow fraudulently concealed its participation in Belk’s illegal enterprise by providing her the W-2G forms, and that Weight Watchers could not have known of Rainbow’s wrongful conduct until its receipt of Belk’s federal tax returns on January 16, 2006, within three years of its having filed suit. Weight Watchers also argued that Rainbow was not a holder in due course because it had not acted in good faith when cashing the checks. In the alternative, Weight Watchers argued that summary judgment was premature because discovery was incomplete; but it did not file an affidavit as required by Mississippi Rule of Civil Procedure 56(f).

¶ 5. The trial court granted Rainbow’s motion, rejecting Weight Watchers’ fraudulent concealment argument and finding that the action was barred by the three-year statute of limitations under Mississippi Code Section 75 — 3—118(g) (Rev.2002). The order did not address the plaintiffs argument that summary judgment was premature or the defendants’ argument that the casino was a holder in due course. On appeal, Weight Watchers argues that the trial court erred in granting summary judgment, because Rainbow’s fraudulent concealment and the continuing tort doctrine tolled the statute of limitations. In the alternative, Weight Watchers asks this Court to reverse and remand, finding that summary judgment was premature.

Discussion

¶ 6. “When reviewing a trial court’s grant or denial of summary judgment, this Court applies a de novo standard of review.” Anderson v. Alps Automotive, Inc., 51 So.3d 929, 931 (Miss.2010). A motion for summary judgment is to be granted “if 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.” Miss. R. Civ. P. 56(c). The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists. Bennett v. Hill-Boren, P.C., 52 So.3d 364, 368 (Miss.2011). Thereafter, “[t]he non-moving party must produce specific facts showing that there is a genuine material issue for trial.” Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014, 1018 (Miss.2000).

I. Weight Watchers did not allege any conduct on the part of Rainbow that would have tolled the statute of limitations.

¶ 7. Mississippi Code Section 15-1-67 (Rev.2003) sets forth the rule regarding fraudulent concealment:

If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.

Weight Watchers argues, as it did below, that Rainbow fraudulently concealed its involvement by issuing tax forms to Belk that falsely represented Belk had won the money from the casino. Thus, Weight Watchers argues that it could not have known a cause of action against Rainbow existed until it received Belk’s federal tax returns on January 13, 2006.

¶ 8. However, assuming arguendo that the casino committed some wrong by issuing the tax forms, this did not serve to conceal any cause of action from the plaintiff. It is undisputed that Weight Watchers knew on December 5, 2005, that Belk had cashed many of the unauthorized checks at the Rainbow Casino. While the tax forms may have helped Belk conceal her illegal activity from the Internal Revenue Service, Weight Watchers does not explain how the tax forms would have prevented its discovering Rainbow’s alleged involvement in Belk’s crimes. Therefore, we agree with the trial court that the plaintiff has not alleged any fraudulent conduct that would have concealed a cause of action.

II. The continuing tort doctrine does not aid the plaintiff, because the last tortious action occurred more than three years before the complaint was filed.

¶ 9. “[W]here a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from, the date of the last injury, or when the tortious acts cease.” Smith v. Franklin Custodian Funds, Inc., 726 So.2d 144, 148 (Miss.1999) (quoting Stevens v. Lake, 615 So.2d 1177, 1183 (Miss.1993)). According to Weight Watchers, the last tortious conduct occurred late in 2006 when Belk filed her federal tax return for 2005. We disagree and find that the last injury to Weight Watchers occurred on December 5, 2005, the date Belk cashed her final unauthorized check. As with its fraudulent concealment argument, the plaintiff cannot demonstrate that it was affected by Belk’s dealings with the Internal Revenue Service. Thus, the continuing tort doctrine would not operate to toll the applicable statute of limitations beyond December 5, 2008.

III. Weight Watchers did not properly request a continuance for further discovery.

¶ 10. Finally, Weight Watchers argues that it was entitled to conduct further discovery before the summary judgment motion was considered. Mississippi Rule of Civil Procedure 56(f) provides that a party opposing summary judgment may be allowed a continuance if additional discovery is necessary for a response. However, Weight Watchers never filed a Rule 56(f) affidavit with the trial court, and thus, we find that this issue was not preserved for appeal.

Conclusion

¶ 11. Weight Watchers failed to allege any affirmative action on behalf of Rainbow that would have concealed a cause of action. We find that the statute of limitations began to run, at the latest, the day that Belk cashed the last unauthorized check. Because the claim was filed more than three years later, we affirm the trial court’s grant of summary judgment in favor of the defendants.

¶ 12. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . In this opinion, "Weight Watchers” jointly refers to both plaintiffs, that is, WW, Inc., doing business as Weight Watchers of Greater Mississippi, and BJM Inc., doing business as Weight Watchers of Southern Alabama and Florida Panhandle.

      . The order was certified final as to Rainbow and Bally pursuant to Mississippi Rule of Civil Procedure 54(b). Thus, they are the only defendants on appeal.

      . In a separate issue, Weight Watchers makes a “discovery rule” argument; but it is, in fact, the same as its argument for fraudulent concealment.


source: Caselaw Access Project

author: CHANDLER, Justice,

license: Public Domain

text:
    In the Matter of the ESTATE OF Anthony Walter SMITH, Deceased: W.E. Davis, Administrator v. Raymond Smith.
    No. 2009-CA-01838-SCT.
    Supreme Court of Mississippi.
    June 16, 2011.
    Rehearing Denied Sept. 15, 2011.

      John Thomas Lamar, III, John Thomas Lamar, Jr., Senatobia, attorneys for appellant.
    John Barnett Turner, Jr., Billy C. Campbell, Jr., Southaven, attorneys for ap-pellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. This case has been before an appellate court three times. In In re Estate of Smith, 891 So.2d 811 (Miss.2005), this Court issued an opinion holding that tax liability should be based on the taxable estate rather than the gross estate, and remanded the case to the chancery court to determine the amount of tax liability each party owed. Then, in Davis v. Smith, 922 So. 2d 814 (Miss.Ct.App.2005), the Mississippi Court of Appeals determined that Raymond Smith (Raymond) held a life estate in the Tate County Farm on which he resided.

¶ 2. After this Court remanded the case, Anthony Walker Smith’s estate (“the Estate”) filed two motions demanding that Raymond and Ruth Smith (“Ruth”) reimburse the Estate for taxes paid, plus interest. Raymond filed a motion demanding that the Estate pay him rent for the time he was excluded from the farm in which he held a life-estate interest. After a hearing on February 6, 2009, addressing all motions, the chancellor issued an order, which held that Raymond and Ruth were responsible for their portions of tax liability owed to the Estate and any interest accrued after the judgment, but were not responsible to pay the Estate any interest accrued prior to the chancellor’s judgment. The chancellor further held that Raymond was entitled to twenty-four months of rent for the time he was excluded from the farm. The Estate then appealed to this Court.

FACTS

¶ 3. Anthony Walker Smith (“Tony”) died October 29, 2001, in a plane crash in Tate County. W.E. Davis was named as administrator. The assets of Tony’s estate, considered for taxable purposes, included two separate life insurance policies. Tony’s father, Raymond, was named as the sole beneficiary of a $2 million policy while Tony’s ex-wife, Ruth, was named as the sole beneficiary of a $125,000 policy.

¶ 4. At the time of Tony’s death, Raymond owned a life estate in Tate County, consisting of approximately 657.4 acres. Dorothy owned a homestead interest in 160 acres of this property. See Davis, 922 So.2d at 819.

I. The Estate’s tax liability

¶ 5. Following the Estate’s tax payment on July 29, 2002, and a request by the Estate for Raymond and Ruth to cover all of the tax payment, Raymond filed a declaratory judgment action in the Chancery Court of DeSoto County to determine whether the administrator, Davis, could shift the tax burden of the Estate to Raymond and Ruth. The chancery court held that, once the assets of the estate were clearly determined, Raymond and Ruth should pay a percentage of the tax liability proportionate to their share of the gross estate. This Court reversed and remanded on January 20, 2005, holding that, under the applicable statutes, the estate should pay tax liability proportionate to its share of the taxable estate rather than the gross estate. Estate of Smith, 891 So.2d at 813.

¶ 6. This Court instructed the chancery court to determine the amount of the taxable estate on remand. See Estate of Smith, 891 So.2d at 813. Davis originally had included the farm as part of the estate, but after the reformation of the deed, the Estate held only a remainder interest in 493.7 acres of that property. To determine the value of the remainder interest, the Estate and Raymond each hired appraisers. The Estate’s appraiser found the remainder interest to be worth $340,000, while Raymond’s appraiser valued the remainder interest at $245,000. In its March 10, 2009, opinion, the chancery court held that Raymond’s appraisal was based on a more in-depth and accurate evaluation than the Estate’s appraisal, and determined that, for tax purposes, the remainder interest was valued at $245,000.

II. The Estate’s exclusion of Raymond Smith from the ⅛93.7-acre property

¶ 7. At the February 6, 2009, hearing, Raymond testified that, from October 30, 2001, until May 22, 2006, he was excluded from a hangar and an equipment shed located on the 493.7-acre property in which he held a life-estate interest. The buildings were padlocked, and Davis was the only person with keys to the locked buildings. Raymond did not gain access to the hangar and the equipment shed until he hired a locksmith to open the locks on May 22, 2006. Davis also testified that Raymond had no access to the buildings.

¶8. Roger Brown, a licensed appraiser and real estate broker, estimated that the two buildings would rent for fifty cents per square foot. That appraisal is undisputed by the Estate. The chancellor held that, before the order for reformation of the deed on September 15, 2003, the administrator had the right to exclude anyone, including Raymond, from the entire estate.

¶ 9. After September 15, 2003, Raymond was within his legal rights to occupy the buildings, but Davis continued to keep the buildings locked, forcing Raymond ultimately to employ a locksmith to gain access. Because he was excluded from the buildings after reformation of the deed, the chancellor held Raymond was entitled to twenty-four months of rent, which would be applied as a credit against any tax liability owed to the estate.

STANDARD OF REVIEW

¶ 10. A chancery court’s interpretation and application of the law are reviewed de novo. In re Guardianship of Duckett, 991 So.2d 1165, 1173 (Miss.2008) (citing Weissinger v. Simpson, 861 So.2d 984, 987 (Miss.2003)). The chancellor’s findings of fact will not be reversed if supported by substantial evidence. Duckett, 991 So.2d at 1173 (citing UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 753 (Miss.1987)). However, an award of prejudgment interest is reviewed for abuse of discretion. Duckett, 991 So.2d at 1173 (citing Aetna Cas. & Sur. Co. v. Doleac Elec. Co., 471 So.2d 325, 331 (Miss.1985)).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED BY NOT AWARDING PREJUDGMENT INTEREST.

¶ 11. An honest dispute existed over how to apportion tax liability, and the amount originally demanded by the Estate was excessive and ultimately proven to be wrong. Because of the dispute and confusion concerning the proper amount of tax liability, the chancellor refused to award prejudgment interest to the Estate. The chancellor acted within his discretion and made the correct ruling.

¶ 12. The correct standard for awarding prejudgment interest is set forth in Moeller v. American Guarantee and Liability Insurance Co., 812 So.2d 953 (Miss.2002). Prejudgment interest may be allowed in cases in which the amount due is liquidated when the claim is originally made or when the denial of a claim is frivolous or in bad faith. Id. at 958.

¶ 13. Liquidated damages are set or determined by contract, while unliqui-dated damages cannot be determined by a fixed formula, and are instead established through verdict or award. Capital One Services, Inc. v. Rawls, 904 So.2d 1010, 1018 (Miss.2004) (citing Moeller, 812 So.2d at 959-60). “As to whether a claim is liquidated, interest has been denied where ‘there is a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefor.’ ” Moeller, 812 So.2d at 960 (citing Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1380 (Miss.1990)) (quoting Grace v. Lititz Mut. Ins. Co., 257 So.2d 217, 225 (Miss.1972)).

¶ 14. It has been well established that disputed damages are unliquidated, and thus no prejudgment interest is warranted. “No award of pre-judgment interest may rationally be made where the principal amount has not been fixed prior to judgment.” Warwick v. Matheney, 603 So.2d 330, 342 (Miss.1992) (citing Stanton & Assoc., Inc. v. Bryant Constr. Co., 464 So.2d 499, 504 (Miss.1985)). “There was a bona fide dispute as to whether Gillis was entitled to a quantum meruit award, and if so, the amount. As such the claim was not liquidated ... thus an award of pre-judgment interest was not warranted.” In re Estate of Gillies, 830 So.2d 640, 647 (Miss. 2002). “That they were entitled to interest on their claim, we hold that there is no merit therein because in this instance there is a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefore.” Grace, 257 So.2d at 225.

¶ 15. In his May 13, 2003, order, the chancellor stated, “the assets of the Estate are not solidly determined at this time and it would therefore be premature at this point for the Court to attempt to apportion exact figures of tax liability.” However, the chancellor determined tax liability should be figured by assessing the proportionate value each beneficiary held in the gross estate. This Court then reversed the decision of the chancellor to apportion tax liability based on the amount of the taxable estate each held.

¶ 16. Pursuant to its ruling as to the proper method by which to calculate the respective parties’ tax liability, this Court remanded the case to the chancery court to make the final determination of money owed by each party. On remand, both parties submitted expert opinions, to support their valuation of the 493.7 acres. After a hearing on February 6, 2009, the chancellor held:

In the case at bar the amount of liability of the respondent is at the very core of this litigation. The respondent has no way of knowing the amount of his liability until such time as the value of the estate, particularly his life estate interest as to the real estate in question, has been determined. Accordingly, the court finds that the amount herein due is in question and accordingly is not liquidated. Consequently, this court is powerless to award prejudgment interest.

¶ 17. The order of the chancery court setting forth the amount due stated, “Raymond Smith shall be liable for interest in the amount of eight percent per annum on his share of the taxes due by the estate beginning on the 20th day of March, 2009.” The damages were “in dispute,” and thus unliquidated until the final judgment and order by the chancellor. Therefore, prejudgment interest was not warranted.

¶ 18. If the damages are unliquidated, prejudgment interest may still be warranted if there is evidence of bad faith. This Court set forth the definition of bad faith in Bailey v. Bailey. Bad faith is defined as follows:

The opposite of “good faith,” generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. Term “bad faith” is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.

Bailey v. Bailey, 724 So.2d 335, 338 (Miss. 1998) (citing Black’s Law Dictionary 139 (6th ed. 1990)). The Estate asserts that Raymond and Ruth willfully, wrongfully, and repeatedly “withheld money rightfully belonging to the Estate for over seven years.” The Estate asserts that Raymond and Ruth initiated “lengthy litigation,” and “specifically and deliberately chose not to reimburse the Estate.” But, as stated in Bailey, bad faith implies a dishonest purpose or moral obliquity. Raymond and Ruth were not acting in bad faith, as there was a legitimate disagreement among the parties regarding each one’s tax liability. The Estate overestimated the amount due by Raymond and Ruth. Because an honest dispute exited as to the amount owed, litigation was warranted. Because the damages were unliquidated, and no bad faith can be shown, the chancellor was correct in not awarding prejudgment interest to the Estate.

¶ 19. Prejudgment interest also may be awarded when the denial of the claim was frivolous. This Court has defined the term “frivolous” in the context of frivolous claims under Mississippi Rule of Civil Procedure 11. A frivolous claim is one that, objectively considered, has no hope of success. Stevens v. Lake, 615 So.2d 1177, 1184 (Miss.1993). This Court has defined “frivolous plea” as:

“one so clearly untenable, or the insufficiency of which is so manifest upon a bare inspection of the pleadings, that the court or judge is able to determine its character without argument or research”; and, also, “an answer can be said to be frivolous only when it is so clearly bad as to require no argument to show its character, and which would be said to be so manifestly defective as to be indicative of bad faith upon a mere inspection.”

Sherrill v. Stewart, 197 Miss. 880, 898, 21 So.2d 11, 17 (1945) (quoting Germain v. Harwell, 108 Miss. 396, 66 So.396, 398 (1914)). Raymond’s denial of the Estate’s claim is analogous to a defensive pleading, which is not frivolous unless “conceding it to be true it does not, taken as a whole, contain any defense to any part of complainant’s cause of action and its insufficiency as a defense is so glaring that the Court can determine it upon a bare inspection without argument.” Id. “If argument is necessary to convince the Court of the bad faith of the pleader or the insufficiency of the plea it can not be held to be frivolous.” Id.

¶ 20. We find that Raymond’s denial of the claim was not frivolous. As previously discussed, both sides made legitimate arguments concerning the correct amount of tax liability, and the Estate’s original demand was excessive and ultimately proven to be incorrect. The Estate's original demand was more than $500,000, which this Court found to be erroneous, because that calculation constituted the entire tax liability of the estate and rested on the amount of the gross estate, rather than the taxable estate. See Estate of Smith, 891 So.2d at 811-13. On remand for the determination of the amount of the taxable estate and apportionment of tax liability, the chancellor was presented with competing property valuations from the Estate and Raymond. The chancellor made a discretionary decision to accept the valuation posited by Raymond. But even if the chancellor had accepted the Estate’s valuation, the $324,569 tax liability calculated by the Estate was significantly lower than the Estate’s original demand from Raymond of more than $500,000. Given the legitimate legal arguments concerning the amount of the tax liability, Raymond’s refusal to pay the Estate’s demand cannot be considered frivolous. Because (1) the damages were unliquidated, (2) no bad faith can be shown, and (3) Raymond’s denial of the claim was not frivolous, the chancellor was correct in not awarding prejudgment interest to the Estate.

II. WHETHER THE CHANCELLOR ERRED BY FINDING THAT RAYMOND WAS IMPROPERLY EXCLUDED FROM A PORTION OF THE TATE COUNTY FARM FOR A PERIOD OF TWENTY-FOUR MONTHS AND THEREFORE ENTITLED TO BACK RENT.

¶ 21. From October 30, 2001, until May 22, 2006, Davis locked Raymond out of two buildings located on the farm in which Raymond held a life estate. The Estate argues that the administrator’s duty is to act “in good faith and employ such vigilance, sagacity, diligence, and prudence” when controlling assets. Harper v. Harper, 491 So.2d 189, 193-94 (Miss.1986). While this is true, the Estate’s right solely to control the farm was extinguished on September 15, 2003, when the chancellor determined that Raymond held a life estate in the property. After September 15, 2003, Raymond had every right to enter and use the property, but Davis continued to keep the buildings locked, and Raymond was unable to access his property until he acquired the assistance of a locksmith on May 22, 2006.

¶ 22. “Quantum meruit recovery is a contract remedy which may be premised either on express or implied contract, and a prerequisite to establishing grounds for quantum meruit recovery is claimant’s reasonable expectation of compensation.” In re Estate of Fitzner, 881 So.2d 164, 173 (Miss.2003) (citing Estate of Johnson v. Adkins, 513 So.2d 922, 926 (Miss.1987); Estate of Van Ryan v. McMurtray, 505 So.2d 1015, 1018 (Miss. 1987); Wiltz v. Huff, 264 So.2d 808, 810-11 (Miss.1972)). The doctrine of quantum meruit

applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another, the courts imposing a duty to refund the money or the use value of the property to the person to whom in good conscience it ought to belong.

Fitzner, 881 So.2d at 174 (citing Hans v. Hans, 482 So.2d 1117, 1122 (Miss.1986)).

¶ 23. The facts here duplicate the scenario contemplated in Fitzner. The administrator’s obligation to protect the buildings and assets of the farm expired when it was determined that Raymond had a life estate in the property. The administrator then had a new obligation to relinquish the property to Raymond.

¶ 24. The Estate alternatively argues that awarding twenty-four months of rent is incorrect, because the time period between the judgment and Raymond’s access to the property was only nineteen and a half months. This assertion is incorrect, as September 15, 2003 (the date of the judgment finding Raymond had a life estate) to May 22, 2006 (the day Raymond accessed the property with a locksmith) is clearly more than twenty-four months. Raymond was improperly excluded from his property, and the chancellor acted within his discretion in awarding twenty-four months of the property’s rental value.

CONCLUSION

¶ 25. Because the Estate’s assignments of error are without merit, we affirm. Prejudgment interest is not warranted, because (1) the damages were not liquidated, (2) no bad faith can be shown, and (3) Raymond’s denial of the Estate’s demand was not frivolous. Twenty-four months of back rent is due Raymond, because he was improperly excluded from property in which he held a life estate.

¶ 26. AFFIRMED.

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

      . An approximate estimate of the acreage Tony owned at his death is 657.4 acres. It is undisputed that 160 acres were deducted for Raymond’s and Dorothy’s homestead, and both experts appraised the remainder interest as 493.7 acres. Therefore, the remaining 3.7 acres are the result of the first, approximate estimate of 657.4 acres.


author: IRVING, J.,

text:
    Virgil N. JOHNSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2008-KA-00537-COA.
    Court of Appeals of Mississippi.
    May 11, 2010.
    Rehearing Denied Sept. 21, 2010.

      Donald W. Boykin, Jackson, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court:

¶ 1. Virgil N. Johnson was convicted in the Hinds County Circuit Court of aggravated assault. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Aggrieved, Johnson appeals and asserts (1) that he was denied his right to a speedy trial, (2) that the trial court erred in allowing certain testimony, (3) that the trial judge exhibited bias, (4) that the trial court erred in refusing to grant his for-cause challenge, and (5) that the trial court erred in granting one of the State’s jury instructions.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On February 28, 2006, Jeremy Boyd was shot four times at his home in Jackson, Mississippi. Boyd, an acquaintance of Johnson, made four pretrial identifications of Johnson as the perpetrator. The first identification was made to Officer Charles Banks of the Jackson Police Department (the JPD), the first officer to arrive at the scene; the second was made to Officer Tommy Nelson of the JPD while Boyd was at the hospital where he had been taken for treatment; the third was made to JPD Officer Kent Daniels; and the fourth identification was made from a photographic lineup. On April 20, 2006, Johnson was arrested, and later indicted, for the aggravated assault of Boyd. He went to trial on March 11, 2008, and was convicted as charged.

¶ 4. At trial, Boyd testified as to what had transpired on February 28, 2006. According to Boyd, he invited Johnson over to his house because he had planned to purchase a vehicle and wanted Johnson’s assistance. When Johnson arrived, Boyd, a professional barber, offered to give him a haircut. Boyd stated that after the haircut, Boyd played a video game and that the two of them smoked marijuana. Boyd testified that Johnson then became quiet, so he asked Johnson if he was all right. Johnson told him that he was. Satisfied with Johnson’s response, Boyd testified that he turned around and continued to play the video game. Boyd recalled that his gun was on the floor near his feet and that “out of the corner of [his] eye” he saw Johnson get up. Boyd said that he assumed Johnson was going to the bathroom but that Johnson came up behind him and shot him in the back of his neck with Boyd’s own gun. Boyd testified that Johnson immediately shot him again. Boyd also testified that Johnson shot him two more times, even though he was playing dead at that point. Boyd further stated that Johnson flipped him over and started rifling through his pockets. Boyd testified that Johnson took $1,900 that he had in his pocket — money that he had planned to use to purchase the vehicle. Boyd stated that Johnson then fled the scene. Boyd used his cellular telephone to call for help.

¶ 5. Officers Banks and Nelson testified that Boyd stated that Johnson had inflicted the gunshot wounds upon him.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Speedy Trial

¶ 7. Johnson contends that his statutory, state, and federal constitutional rights to a speedy trial were violated. A criminal defendant is afforded the right to a speedy trial by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, Section 26 of the Mississippi Constitution of 1890. Brengettcy v. State, 794 So.2d 987, 991 (¶ 7) (Miss.2001) (citing Beavers v. State, 498 So.2d 788, 789 (1986)). Further, “[u]nless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Miss.Code Ann. § 99-17-1 (Rev.2007). We separately address Johnson’s speedy-trial arguments as they relate to his statutory and constitutional rights.

a. Statutory Right

¶ 8. Pursuant to section 99-17-1, for purposes of the 270-day rule, the time begins to run at arraignment. Johnson was arraigned on April 16, 2007, and, as noted, went to trial on March 11, 2008. However, on April 4, 2007, twelve days before his arraignment, Johnson asserted his right to a speedy trial. The record reflects that Johnson’s first trial setting was July 16, 2007; his second trial setting was November 5, 2007; and his third trial setting was March 10, 2008, one day prior to his trial date.

¶ 9. On the first day of his trial, Johnson sought to have his case dismissed due to a speedy-trial violation. The trial judge asked Johnson’s attorney to explain the prejudice that Johnson had suffered as a result of the delay. Johnson’s attorney asserted that Johnson: (1) suffered from being incarcerated, because he could not make bond, for a crime that he contended he did not commit; (2) was unable to work as a result of his incarceration; (3) could not see his child or provide any financial support to the child; (4) was prevented from pursuing his GED; and (5) was prevented from caring for his sick mother. Thereafter, the trial judge stated:

The Court is going to deny the motion to dismiss for failure to provide a speedy trial. The Court is convinced by the arguments of the State. The Court also recognizes that in Hinds County there has [sic] been delays caused by backlogs of cases. That there were cases older than this case and still are older cases than this case, and the defendant is being brought to trial in a timely manner. The Court acknowledges the request of Mr. Johnson for a speedy trial for reduction in bond, and he did have a $50,000 bond. The mere fact that he could not make the bond is not a prejudice. It’s a personal issue.

Johnson argues that the reason for the delay given by the trial judge is insufficient. A crowded docket has been recognized as a reason that constitutes good cause for delay. See State v. Magnusen, 646 So.2d 1275, 1282 (Miss.1994) (citing Polk v. State, 612 So.2d 381, 387 (Miss.1992)). Nevertheless, an overcrowded docket will not automatically suffice to establish good cause, as good cause must be determined by evaluating the specific facts of each case. Id. (citing McGee v. State, 608 So.2d 1129,1133 (Miss.1992)).

¶ 10. Even if we were to conclude that, because of the congested trial docket, good cause existed for the State’s failure to bring Johnson to trial within 270 days of his arraignment, there remains the question of whether a violation of section 99-17-1 occurred because no order was entered on the trial docket. In this regard, we note that Johnson had three trial settings, two of which were within 270 days of his arraignment and the first being just three months following his arraignment. We also note that the trial judge, in denying Johnson’s motion to dismiss, stated that “[t]he delay comes only out of necessity and the backlog of eases that may have been tried on the dates that he previously had his trial setting.” While the trial judge used the phrase “may have been tried,” we do not interpret this to mean that the cases that were set ahead of Johnson’s were not tried. Therefore, since Johnson’s case was twice set for trial prior to the running of the 270-day period, and since the trial judge found good cause for Johnson’s case not being tried, although the finding came on the back end rather than on the front end when the case was continued, the question is whether these facts are sufficient to support a finding that section 99-17-1 was not violated. As we will explain, we find that they are.

¶ 11. As noted, section 99-17-1 requires that a defendant be tried within 270 days of his arraignment “[u]nless good cause be shown, and a continuance duly granted by the court....” Here, the trial judge did not enter an order or continuance specific to this case. However, it appears that there was a standing order or practice that all cases that were set for trial on a specific day in a backup position would be automatically continued to another day or term of court if the case that was set ahead of it went to trial. That appears to be what happened here. Section 99-17-1 does not specifically require that any continuance that is granted by the court be in the form of a written order, only that the continuance be “duly granted by the court.” Here, based on the trial judge’s comments, it is clear that, by operation of either a standing order or practice known to the bar, all cases that were set on a specific day in a position other than the first were continued by the trial court if the case set ahead of it went to trial. While we do not condone this practice, we cannot say on the unique facts of this case that Johnson was denied his statutory right to a speedy trial. While it is clear that he was not tried within 270 days, it is also clear that the reason for the delay was the congested trial docket. Moreover, Johnson has shown no prejudice to his ability to mount a defense as a result of the delay. Therefore, we find no merit to this issue.

b. Constitutional Right

¶ 12. In Barker, 407 U.S. at 530, 92 S.Ct. 2182, the United States Supreme Court announced four factors that should be considered when determining whether a criminal defendant has been denied his right to a speedy trial. The factors are: (1)“length of delay,” (2) “the reason for the delay,” (3) “the defendant’s assertion of his right,” and (4) “prejudice to the defendant.” Id. Also, in Smith v. State, 550 So.2d 406, 408 (Miss.1989), our supreme court stated that a delay of eight months or more is presumptively prejudicial. Further, the Smith court stated that the length-of-delay factor under Barker operates as a “triggering mechanism.” Id. We now proceed with an analysis of the Barker factors.

(1) Length of Delay

¶ 13. In determining whether there has been a constitutional violation of a defendant’s right to a speedy trial, the computation of time begins with the date of the defendant’s arrest. Murray v. State, 967 So.2d 1222, 1230 (¶ 23) (Miss. 2007) (citing Atterberry v. State, 667 So.2d 622, 626 (Miss.1995)). As noted, Johnson was arrested on April 20, 2006, and was tried on March 11, 2008. Therefore, 680 days elapsed between the date of Johnson’s arrest and the date of his trial. Accordingly, because more than eight months elapsed between the date of Johnson’s arrest and the date of his trial, we find that the delay is presumptively prejudicial, requiring us to proceed with an analysis of the remaining Barker factors.

(2)Reason for Delay

¶ 14. The record is clear that the reason for the delay in bringing Johnson to trial was the backlog of cases that Hinds County was experiencing at the time. It is well settled that delays caused by overcrowded dockets are weighed against the State, although not heavily. McGhee v. State, 657 So.2d 799, 802 (Miss. 1995) (citing Adams v. State, 583 So.2d 165 (Miss.1991)). Therefore, we weigh this factor slightly against the State.

(3)Johnson’s Assertion of his Right to Speedy Trial

¶ 15. Johnson asserted his right to a speedy trial on April 4, 2007, or 349 days after his arrest and a little over eleven months before he was brought to trial. Therefore, this factor favors Johnson,

ft) Prejudice to Johnson

¶ 16. Johnson sets forth in his brief the same reasons regarding how he was prejudiced that his attorney provided to the court during the hearing on his motion to dismiss. “The accused is not required to put forth an affirmative showing of prejudice to prove his right to a speedy trial was violated. Nevertheless, an absence of prejudice weighs against a finding of a violation.” Murray, 967 So.2d at 1232 (¶ 30) (quoting Atterberry, 667 So.2d at 627). We find, as did the trial judge, that Johnson’s right to a speedy trial was not violated, as we are unable to discern any prejudice to Johnson caused by the delay. Even though Johnson was presumptively prejudiced because of the length of the delay, the clear evidence is that he was not actually prejudiced. While Johnson argued that he was prejudiced in several ways, none dealt with an impairment to his ability to vigorously defend against the charges. Therefore, we cannot find that Johnson’s constitutional right to a speedy trial was violated.

2. Admission of Officer Banks’s Testimony

¶ 17. In this issue, Johnson contends that the trial court erred by allowing Officer Banks to testify that Boyd had told Officers Banks and Nelson that Johnson was the person who had shot him. As stated, Boyd identified Johnson as the shooter to both Officers Banks and Nelson. At trial, Johnson objected on the basis that the elicited testimony was hearsay that did not fall within any hearsay exception. The trial judge overruled the objection.

¶ 18. Boyd was the State’s first witness and was subjected to cross-examination. He testified that Johnson was the person who had shot him. Thus, the jury had already heard Boyd identify Johnson as the shooter before Officer Banks took the stand. Accordingly, because Officer Banks merely repeated what Boyd had already testified to, any error committed by the trial judge in allowing the officer to testify in this regard is harmless.

S. Bias

¶ 19. Johnson also argues that he is entitled to a new trial because the trial judge exhibited bias by suggesting to Officer Daniels how to avoid a hearsay objection. The following transpired at trial:

Q. And once you got to the location, what did you do?
A. Upon arriving at the location when I first got there, I was briefed by a patrol officer who responded to the scene first before they notified the detective. Got to the scene, the officer told me that—
[ATTORNEY FOR DEFENDANT]: Your Honor, we’d object to what the officer told him, hearsay.
THE COURT: Objection sustained, Counsel. Just use terms of what you learned from your investigation and that will—
THE WITNESS: Yes, Your Honor, thank you.
THE COURT: — keep you out of the hearsay. Hold on, let me finish. And you’ll stay out of the area of hearsay. Just tell what you learned as result of your investigation.
THE WITNESS: Thank you, Your Honor.

¶ 20. Johnson cites Jasper v. State, 759 So.2d 1136 (Miss.1999), Nichols v. Munn, 565 So.2d 1132 (Miss.1990), and West v. State, 519 So.2d 418 (Miss.1988) for the proposition that it is impermissible for a trial judge to interject herself into a trial. In Jasper, a police officer testified, on direct examination, that he had recovered stolen property from an individual by the name of Billy Cooper. Jasper, 759 So.2d at 1139 (¶ 18). Then, on redirect, the State asked the officer whether he had learned that Cooper had received the property from the defendant, Steve Jasper. Id. Jasper’s attorney objected and moved for a mistrial on the ground of hearsay, as Jasper’s attorney argued that Cooper was the proper person to answer that question. Id. The State suggested that the testimony be stricken and that the jury be instructed to disregard it. Id. At that point, the trial judge ordered the jury out of the courtroom. Id. Outside of the presence of the jury, a discussion was held regarding the impropriety of the State’s question and the possible remedies to cure the hearsay. Id. at 1139-40 (¶ 19). Jasper’s attorney moved for a directed verdict, asserting that “absent the testimony of Billy Cooper, the State was unable to prove their case without the benefit of [the officer’s] hearsay testimony.” Id. at 1140 (¶ 19). The trial judge asked the State whether it had issued a subpoena for Cooper. Then, the trial judge stated:

Do ya’ll have a tag number? Put an all points bulletin out for him. Get a court order that he’s evading process or do anything. Otherwise, you’re gonna lose this case. And I’m not gonna take the blame for it.... Well, let’s just get an instanter out on him. And that way when you get him, you bring him to me. If I get him, I’ll know what to do with him.

Id.

¶21. The Mississippi Supreme Court found that the trial judge did not directly interject himself into the case and merely, outside of the presence of the jury, attempted to “inform the State that it would need the testimony of Cooper in order to corroborate the hearsay testimony offered by [the officer].” Id. at (¶ 20). Based on the finding of the Mississippi Supreme Court that the trial judge did not interject himself into Jasper’s trial, we fail to see how Jasper lends Johnson any support.

¶ 22. Johnson also directs our attention to West and Nichols, which were cited by the Jasper court. In West, 519 So.2d at 418, the Mississippi Supreme Court reversed a defendant’s murder conviction, finding that the trial judge became actively involved in the case. Specifically, the supreme court held:

We have carefully examined the eight-volume record and find that there are thirty (30) instances where the trial judge improperly, or unnecessarily, interjected himself into the proceedings. Of those thirty instances, twenty are of the type which may be characterized as coaching the district attorney. On nine occasions, the trial judge posed questions to witnesses where the district attorney’s questions were ineffective. The questions by the trial judge generally served to strengthen the prosecution’s case.

Id. at 421.

¶ 23. In Nichols, 565 So.2d at 1135, the trial judge extensively questioned an expert witness doctor regarding injuries allegedly sustained by a plaintiff. The trial judge also questioned the plaintiff regarding previous accidents that he had been involved in. Id. at 1135-36. Our supreme court held that “the circuit judge was clearly wrong in the manner in which he injected himself into this lawsuit....” Id. at 1137. The court also stated that “there was no necessity for his quite open display of incredulity before the jury both of the plaintiffs case and of the plaintiff himself.” Id.

¶ 24. Here, the trial judge’s comment to Officer Daniels can hardly be compared to the conduct committed by the trial judges in West and Nichols; therefore, we find Johnson’s reliance on them misplaced. The trial judge merely instructed Officer Daniels to state what he learned from his investigation. This act can hardly be viewed as interjecting herself into the lawsuit. There is no merit to this issue.

⅛. Challenges

¶ 25. Johnson contends that the trial judge erred in failing to grant his for-cause challenges of two prospective jurors. In Duncan v. State, 939 So.2d 772, 778-79 (¶ 22) (Miss.2006) (citing Caston v. State, 823 So.2d 473, 499 (¶ 93) (Miss.2002)), our supreme court held that “the trial court is empowered with broad discretion to determine whether a prospective juror can be impartial — notwithstanding the juror’s admission under oath as to his or her ability to [be] impartial.”

¶26. The following exchange occurred during voir dire by Johnson’s attorney:

My first question is this, when you walked through that door today, how many of you looked at Virgil Johnson and said to yourself, I wonder what he did. Not what he’s charged with, but I wonder what he did? And this is one that requires you obviously as all questions to be very truthful and sometimes do some soul searching.
Would you raise your hand if when you walked through that door or at any time since then you said to yourself I wonder what he did?
Would you raise your hand? This is Mr. Phillips. Yes, tell us what did you think.
MR. PHILLIPS: I think the most personal thing. I walked in the door, and I asked myself the same question you said. I mean I didn’t chew on it or anything, but I just — you know, it was kind of my initial reaction.
[ATTORNEY FOR DEFENDANT]: All right. Well let me ask you this. By thinking that, did you think he had done something?
MR. PHILLIPS: I guess so sitting on that side of the table. I mean, you know, I just assumed to be the ease.
[ATTORNEY FOR DEFENDANT]: Now, when you said — did you assume it was a case involving an alleged crime?
MR. PHILLIPS: Yes.
[ATTORNEY FOR DEFENDANT]: And why did you assume that?
MR. PHILLIPS: I assumed we’re in criminal court. I assumed it was a criminal matter he’s being charged with.
[ATTORNEY FOR DEFENDANT]: All right. Others? Mr. Stevens?
* * *
MR. STEVENS: Yes. I kind of assumed that probably he was involved in some type of crime.
[ATTORNEY FOR DEFENDANT]: Now, I think you were a former police officer; is that correct?
MR. STEVENS: Correct.
[ATTORNEY FOR DEFENDANT]: I’m sorry?
MR. STEVENS: Right, uh-huh (affirmative).
[ATTORNEY FOR DEFENDANT]: Why did you assume that?
MR. STEVENS: Just by surveilling the area and what’s going on. Just like you said, we’re in Court, so you assume that there’s a defendant, there’s a prosecutor. And just looking at both tables, you just assume that okay, that must be the defense on that side, this must be the prosecution on this side. Just putting those two things together and coming up with that scenario.
[ATTORNEY FOR DEFENDANT]: But you said you assumed he did something, not assumed he was charged with something. I think you said you assumed he did something, am I correct?
MR. STEVENS: Right.
[ATTORNEY FOR DEFENDANT]: And what I’m asking you why did you make that assumption other than what you’ve just described?
MR. STEVENS: Not necessarily that he had done something. I understand that probably that table was, like I said, the defendant’s table, and this table was probably the prosecution’s table.

Thereafter, Johnson’s attorney challenged Phillips for cause, asserting that Phillips could not be fair and impartial. The trial judge declined to strike Phillips, concluding that “simply wondering what somebody did is not enough to strike them from the jury without more.” Similarly, the trial judge refused to strike Stevens, concluding that Stevens did not indicate that he could not be fair and impartial. Thereafter, Johnson’s attorney used two of his peremptory strikes to keep Phillips and Stevens off of the jury. Therefore, even though the trial judge refused to allow Johnson’s attorney to strike Phillips and Stevens for cause, they were ultimately excluded from the jury. Accordingly, Johnson fails to show how he was prejudiced as a result of the trial judge’s ruling, as Johnson makes no argument that he planned to use the peremptory challenges to exclude other jurors. This issue lacks merit.

5. Jury Instruction

¶ 27. In his final issue, Johnson argues that the trial judge erred by allowing jury instruction S-3 to be read to the jury. Johnson contends that instruction S-3 is not a proper statement of the law and improperly comments on Boyd’s identification of Johnson as the perpetrator. Johnson’s attorney objected when the State sought to offer instruction S-3. Thereafter, Johnson’s attorney, the State, and the trial judge worked together to come up with an instruction that both sides could agree upon. Then, the trial judge allowed the State to read the following version of S-3 to the jury:

The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the defendant was the person who committed it. You have heard evidence regarding the identification of the defendant as the person who committed the crime. In this connection, you may consider the witness’s opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness’s state of mind, and any other circumstances surrounding the event. You may also consider the witness’s certainty or lack of certainty, the accuracy of any prior description, and the witness’s credibility or lack of credibility, as well as any other factor surrounding the identification. You have heard evidence that prior to this trial, the witness, Jeremy Boyd, identified the defendant, Virgil Johnson, by viewing a photographic spread which contained his photograph.
It is for you to determine the reliability of any identification and give it the weight you believe it deserves.

¶ 28. Johnson’s attorney mounted no further objection. Therefore, Johnson cannot now complain that the trial judge erred in allowing instruction S-3 to be read to the jury when he did not object at trial. See Brengettcy, 794 So.2d at 997 (¶ 29) (citing Sanders v. State, 678 So.2d 663, 670 (Miss.1996)). There is no merit to this issue.

¶ 29. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT.

      . The Mississippi Supreme Court has "not set a specific length of time as being per se unconstitutional [with respect to state constitutional claims], but instead have applied the four-part balancing test articulated by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).” Brengettcy, 794 So.2d at 992 (¶ 10).

      . There is no document in the record reflecting the trial settings, but during the hearing on Johnson’s motion to dismiss, the State advised the trial judge that, based on information contained in the court’s case-management system, Johnson had had three trial settings. Johnson’s attorney did not deny this fact but pointed out that there was no order reflecting the trial settings.


author: ISHEE, J.,

text:
    HOLLY SPRINGS REALTY GROUP, LLC, Appellant v. BANCORPSOUTH BANK, Appellee.
    No. 2009-CA-00923-COA.
    Court of Appeals of Mississippi.
    Nov. 9, 2010.
    Rehearing Denied May 3, 2011.
    Certiorari Denied Sept. 8, 2011.

      Frank M. Hurdle, attorney for appellant.
    John J. Crow Jr., Water Valley, Daniel Myles Martin, attorneys for appellee.
    Before KING, C.J., ISHEE AND CARLTON, JJ.
   ISHEE, J.,

for the Court:

¶ 1. This appeal is brought by a purchaser of a condominium unit at a tax sale held by the City of Oxford. The mortgagee of all the condominium units, BancorpSouth Bank (Bank), received no notice of the tax sale until after the period of redemption had expired and a tax deed was issued to Holly Springs Realty Group, LLC. When the mortgagor, Van Burén Group, LLC (Van Burén), defaulted in the payment of its note to the Bank, the Bank sought to foreclose on certain property of the mortgagor including the unit Holly Springs Realty had purchased at the tax sale, unit 309. The Bank argued that because it did not receive notice of the tax sale, its mortgage lien was unaffected by the convey-anee of the tax sale deed; thus, it was entitled to foreclose on unit 309. The chancery court agreed and ordered a foreclosure sale of the unit. It is from this order that Holly Springs Realty appeals, raising a litany of issues which we will address in turn.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal stems from litigation by a mortgagee, the Bank, to secure payment of a promissory note made by a mortgagor, Van Burén. Van Burén executed a promissory note in September 2001 in favor of the Bank in the amount of $5.4 million to build a 30-unit condominium, the Van Burén Condominium, in Oxford. In order to secure payment of the note, Van Burén executed a deed of trust in favor of the Bank on the entire condominium. The debt was to be repaid to the Bank through the sale of condominium units by Van Bu-rén. As the units were sold, the note was renewed from time to time to show the decreasing amount owed by Van Burén. Each condo unit sold in the $300,000 range.

¶ 3. Twenty-one units were sold by Van Burén, and the proceeds of the sales were remitted to the Bank less costs, expenses, and commission, which the Bank credited to the debt and for which it executed partial releases of the deed of trust for the units sold. However, the Bank discovered that Van Burén had sold at least five of the condominium units without its knowledge or consent and without remitting any of the money from the sale to the Bank. These units were not released from the Bank’s deed of trust.

¶ 4. Van Burén defaulted in making payments on the note, and in October 2007, the Bank filed for a declaratory judgment setting out the rights of the parties and for the immediate judicial foreclosure of unit 309; if that sale failed to satisfy the debt, then the Bank sought the sale of the five undisclosed units — units 111, 102, 201, 207, and 303.

¶ 5. The legal action named Van Burén and eleven other entities and individual unit owners as defendants. The defendants included Claiborne Frazier, Shelby K. Brantley Jr, and Robert Crumpton, members of Van Burén; Austin Frazier and C.E. Frazier, two of the guarantors of the indebtedness owed by Van Burén; and five purchasers to whom Van Burén had sold condominium units without remitting any of the proceeds to the Bank. At the time the foreclosure was filed, the Bank thought that unit 309 was owned by Van Burén since it had received no payment from the sale of the- unit and had not executed a partial release of the deed of trust as to unit 309. Accordingly, the Bank stated in its filing that unit 309 remained subject to the deed of trust and served as collateral for the payment of the debt. On January 24, 2008, a default judgment was entered as to defendants Claiborne Frazier, Austin Frazier, and C.E. Frazier in the amount of $1,214,533.

¶ 6. After the foreclosure pleading was filed by the Bank on October 17, 2007, Holly Springs Realty applied for and received a tax deed from the City of Oxford; the tax deed was recorded in the. office of the Chancery Clerk of Lafayette County on February 15, 2008. Unknown to the Bank, the City of Oxford had held a tax sale on August 29, 2005, at which it sold unit 309 to Holly Springs Realty for $472.68. It is undisputed that prior to the expiration period fixed by law for the redemption of unit 309 from the tax sale, no notice was given to the Bank, as the mortgage lienholder. The City of Oxford failed to notify the Bank as a lienholder of the tax sale as required by Mississippi Code Annotated sections 27-43-4 and -5 (Rev. 2006) and of the running of the two-year redemption period. Some time in March 2008, the Bank became aware of Holly Springs Realty’s tax deed on unit 309. On March 28, 2008, the Bank and Holly Springs Realty entered into an agreed order that Holly Springs Realty would be refunded all the money it had paid for Van Buren’s taxes plus 18% interest on the aforesaid amounts. In exchange, Holly Springs Realty agreed that the tax deed would be set aside as to the mortgage interest of the Bank. Some of the agreed order quotes a part of Mississippi Code Annotated section 27-43-11 (Rev.2006), which provides that failure to give notice of a tax sale to a lien holder “shall render the tax title void as to such lienor[].”

¶ 7. In April 2008, the Bank petitioned the chancery court to join Holly Springs Realty as a necessary and indispensable party for the limited purpose of determining title to unit 309. The Bank said that it was about to foreclose on unit 309 and that because of its tax deed, Holly Springs Realty was a necessary party. The motion was granted.

¶ 8. There was extensive briefing and oral argument on various motions. In its order of foreclosure on unit 309, the chancery court noted that the Bank had not received notice of the tax sale and the running of the redemption period as required by law — a point which was not disputed. The chancery court found that because of this lack of notice, the mortgage lien of the Bank was unaffected by the tax sale and was a first, prime, and paramount lien on unit 309. The chancellor noted that there was still approximately $1.3 million left owing on the Van Burén note. The chancellor then ordered that unit 309 be sold at a foreclosure sale and the proceeds applied to this debt. The chancellor further ordered that the $21,533.69 in taxes, which Holly Springs Realty had placed in the registry of the court, were to be delivered to Holly Springs Realty.

ANALYSIS

¶ 9. When reviewing a decision of a chancellor, the appellate court employs a limited standard of review. Shirley v. Christian Episcopal Methodist Church, 748 So.2d 672, 674 (¶ 9) (Miss.1999). The findings of a chancellor will not be disturbed on review unless the chancellor was manifestly wrong, clearly erroneous, or applied a wrong legal standard. Id. Where the factual findings of the chancellor are supported by substantial credible evidence, they are insulated from disturbance on appellate review. Jones v. Jones, 532 So.2d 574, 581 (Miss.1988).

¶ 10. Before proceeding, it is useful, if not outcome determinative, to state exactly what Holly Springs Realty’s legal status is in this litigation. Holly Springs Realty is the holder of a tax title to unit 309. A valid tax title cuts off all the rights of the former owner and vests such rights in the grantee named in the tax deed. However, the failure of a clerk to give notice to a lienor following the tax sale and before the period of redemption renders the tax sale void as to such lienor. Miss.Code Ann. § 27-43-11; Santa Cruz v. State, 223 Miss. 617, 621, 78 So.2d 900, 901 (1955). It is undisputed that the Bank received no notice from the City of Oxford before the running of the redemption period. As the case law and statute make clear, Holly Springs Realty’s tax deed was of no effect to the Bank — the unnoticed lienor. Holly Springs Realty’s status as a tax deed holder does it no good. The tax sale was not operative against the Bank, and the chancellor was, therefore, correct in giving the Bank the relief it sought— foreclosure on unit 309.

¶ 11. With that being said, we will turn to the twelve issues which Holly Springs Realty raises on appeal. Where possible we will consolidate the issues and give them a summary disposition. We will quote Holly Springs Realty’s allegations of error verbatim.

I.THE COURT ERRED IN GRANTING SUMMARY JUDGMENT AND FORECLOSE [SIC] AGAINST APPELLANT WHERE APPELLANT WAS SERVED WITH A COMPLAINT THAT DID NOT CONTAIN APPELLANT’S NAME, MAKE ANY CLAIM AGAINST APPELLANT OR CONTAIN ANY OPERATIVE FACTS TO CONNECT APPELLANT TO THE CASE. '

¶ 12. It is true that the initial complaint and amended complaint did not list Holly Springs Realty as a party. The reason for this is because at the time the complaints were filed, the Bank had no notice that Holly Springs Realty should be a defendant since the Bank had no notice of the tax sale. Further, this issue is without merit for the obvious reason that Holly Springs Realty was joined as a party pursuant to a June 5, 2008, order of the court which granted the Bank’s petition to join Holly Springs Realty as a necessary and indispensable party for the limited purpose of determining title to the property. Further, as is pointed out by the Bank, Holly Springs Realty made an appearance in the lawsuit. One waives process and service upon making a general appearance. Isom v. Jemigan, 840 So.2d 104, 107 (¶ 9) (Miss.2003). By voluntarily appearing and fully participating in the litigation, Holly Springs Realty waived service of. process and entered a general appearance for all purposes. Therefore, this issue is without merit.

II. THE CHANCELLOR ERRED BY ALLOWING PLAINTIFF TO DETERMINE WHICH PROPERTY SHOULD BE CHARGED WITH THE PAYMENT OF THE DEBT INSTEAD OF REQUIRING PLAINTIFF TO STAND QUIETLY BY WHILE THE DEFENDANT OR DEFENDANTS PRESENTED THEIR CLAIMS TO THE COURT WITHOUT INTERFERENCE FROM ... PLAINTIFF.

III. THE CHANCELLOR ERRED IN FINDING THAT ACCORDING TO THE INVERSE ORDER OF ALIENATION RULE, A PROPERTY PURCHASED AT A TAX SALE SHOULD BE SOLD FOR THE BENEFIT OF PROPERTIES ALIENED FROM THE MORTGAGOR, EVEN THROUGH [SIC] A TAX TITLE IS A PERFECT TITLE BESTOWED BY THE SOVEREIGN FREE AND CLEAR OF ANY EQUITABLE BURDEN TO ANY OTHER PROPERTY.

¶ 13. These two arguments must fail for the same reason as set out above— Holly Springs Realty’s tax deed does not apply to the Bank. Incredibly, Holly Springs Realty asserts that the party which brought the action, the Bank, should “stand quietly by” while the chancellor determines who should pay the debt of Van Burén. The Bank was the plaintiff below and brought the foreclosure action to collect its debt. The Bank lent the money and took a deed of trust and mortgage on the property to secure its loan. The mortgagee, Van Buren, defaulted on the payment of the note; and pursuant to its agreement with Van Burén, the Bank sought foreclosure on Van Buren’s property. The Bank met the basic rules of pleading by stating its claim for relief. M.R.C.P. 8. As the litigation progressed, it brought forth its proof that unit 309 was one of the properties covered by the deed of trust. There is no requirement that a plaintiff must “stand quietly by” as its claim is litigated by others. This issue is without merit.

¶ 14. In its third issue, Holly Springs Realty claims the chancellor should have invoked the equitable doctrine of inverse order of alienation to decide how the units should be sold. See Pongetti v. Bankers Trust Sav. and Loan Ass’n, 368 So.2d 819 (Miss.1979). The doctrine provides:

[W]here land subject to a lien has been alienated in separate parcels and to different persons successively, a mortgagee or other lienor must first satisfy its lien out of the land remaining in the grantor or original owner, if possible[.][I]f that land is insufficient to satisfy the debt, the creditor must resort to the separate parcels which have been conveyed successively in the inverse order of their alienation.

53 Am.Jur.2d Marshalling Assets § 34 (2006). As the encyclopedia further states, the doctrine is based upon the presumption that unless expressed by contract, one person’s property should not be used to pay the debts of another. Id. In other words, a mortgagee must sell or foreclose upon what the mortgagor has left first because the mortgagor is responsible for the payment of the debt and not the others to whom he has sold property; then if that sale does not cover the debt, the mortgagee must sell in the inverse order of which the property was sold by the mortgagee. Thus the doctrine is invoked when land subject to a lien has been alienated to different persons by the mortgagor and the mortgagee seeks to sell or foreclose upon the separate property. Here the property is subject to the lien of the Bank and has been alienated to different persons by the mortgagor, Van Burén, which held title to unit 309 until it was lost in the tax sale. As we have repeatedly stated, the failure of the City of Oxford to give notice of the redemption period to the Bank made the tax sale to Holly Springs Realty void as to the Bank. Therefore, Holly Springs Realty cannot call upon this Court to evoke the equitable principle.

¶ 15. This issue is without merit.

IV. WHETHER PLAINTIFF SECRETLY GAVE DEFENDANTS IN AN IN REM EQUITY ACTION PERMISSION NOT TO FILE AN ANSWER UNTIL TOLD TO DO SO, AND THESE PARTIES THEN MISLED APPELLANT ABOUT THIS MARY CARTER-TYPE AGREEMENT, THUS HARMING APPELLANT, [AND] DID THE CHANCELLOR ERR IN REFUSING TO ESTOP PLAINTIFF FROM RECOVERY AGAINST APPELLANTt?]

V. DID THE CHANCELLOR ERR WHEN HE DENIED APPELLANT’S MOTION TO DISMISS CASE BECAUSE FIVE NECESSARY AND INDISPENSABLE CO-DEFENDANTS WERE NOT SERVED WITHIN 120 DAYS OF THE FILING OF THE ORIGINAL COMPLAINT, AS WELL AS FAILURE TO JOIN OTHER NECESSARY AND INDISPENSABLE PARTIES AND PLAINTIFF’S FAILURE TO FULLY PROSECUTE ITS CASE[?]

VI. DID THE CHANCELLOR, BY ALLOWING PLAINTIFF TO UNILATERALLY GRANT ENLARGEMENT OF TIME BY WHICH CERTAIN FAVORED PARTIES MIGHT ANSWER, SHOW SUCH BIAS IN FAVOR OF PLAINTIFF THAT APPELLANT WAS NOT ASSURED OF RECEIVING A FAIR HEARING[?]

VII. DID THE CHANCELLOR ABUSE HIS DISCRETION BY FAILING TO ENTER A JUDGMENT OF DEFAULT AGAINST FIVE CO-DEFENDANTS WHO INTENTIONALLY FAILED TO FILE AN ANSWER WITHIN ONE YEAR, WHEN SUCH FAILURE WAS APPARENTLY A MATTER OF TRIAL STRATEGY?

VIII. IN AN IN REM ACTION, WHERE THE COURT MUST DECIDE IF OR HOW PROPERTIES ARE TO BE CHARGED FOR THE PAYMENT OF A DEBT, DID THE CHANCELLOR ERR IN GRANTING SUMMARY JUDGMENT AND FORECLOSURE AGAINST APPELLANT WHEN FIVE OTHER DEFENDANTS OWNING PROPERTY SUBJECT TO THE DEBT HAD NOT FILED AN ANSWER[?]

¶ 16. These five issues involve the five condo owners to whom Van Burén had sold units but did not submit the money from the sale to the Bank. The five were named as defendants in the initial complaint before the Bank even learned of Holly Springs Realty’s tax deed.

¶ 17. Holly Springs Realty continually describes the five as the “favored parties” of the Bank and claims that the five have a “Mary Carter-type” agreement with the Bank. Holly Springs Realty claims that the five “sought permission from the [Bank] not to file an answer, and were told they did not have to file an answer until told to do [sic].” Then immediately following in its brief, Holly Springs Realty states the so-called agreement was not in the chancery court record and that the Bank took affirmative steps to keep Holly Springs Realty from learning of the “agreement.” The places in the record to which Holly Springs Realty points this Court to support this allegation are in the arguments of its counsel. No evidence of such an agreement was introduced into the record. In fact, the chancellor took action against Holly Springs Realty’s freewheeling accusations against the Bank, striking the words “false and misleading” and “unlawful” from its pleadings. The chancellor told counsel for Holly Springs Realty: “You shouldn’t be calling something illegal unless you absolutely can prove it’s illegal. I think it can be damaging [to] them.”

¶ 18. A Mary Carter agreement also known as a “loan-receipt agreement,” is an agreement between a plaintiff and one or more defendants in which the settling defendant “loans” a stated amount of money to the plaintiff and is entitled to be repaid the loan from any recovery the plaintiff receives from a non-settling defendant. The essential feature of the so-called Mary Carter agreement is the repayment of the loan from money recovered from the non-settling co-defendants. If there is no recovery, there is no repayment.

¶ 19. Although Holly Springs Realty argued that there was a “Mary Carter-type” agreement between the Bank and the other defendants, it offered no proof of such an agreement. Without proof, these bare allegations must fail.

¶ 20. We find these issues are without merit.

IX.WHERE PLAINTIFF AND APPELLANT ENTERED INTO AN AGREED ORDER OVER A PROPERTY SOLD AT A TAX SALE, WHERE APPELLANT AGREED TO RECOGNIZE PLAINTIFF’S LIEN AND PLAINTIFF AGREED TO REIMBURSE APPELLANT FOR ALL TAXES PAID, AND PLAINTIFF DID NOT REIMBURSE APPELLANT AND BEGAN FORECLOSURE ON DEFENDANT PRIOR TO REPAYING THE AGREED AMOUNT, DID THE CHANCELLOR ERR IN NOT FINDING THAT ... PLAINTIFF’S ACTIONS WERE A MATERIAL BREACH OF THE AGREED ORDER WHICH RESULTED IN THERE BEING NO LIEN ON THE PROPERTY?

¶ 21. Holly Springs Realty asserts that the Bank entered into an agreed order with it and then breached the terms of the order; therefore, the agreement should be nullified because of the Bank’s non-compliance and further that the Bank should lose its lien on unit 309. Holly Springs Realty claims the agreed order was a “settlement agreement intended to avoid litigation.” Our review of the agreed order is that it is really no more than a restatement of the relevant law and the facts of the case. The first seven paragraphs explain the Bank’s mortgage and Van Buren’s breach and the fact that five units are subject to the Bank’s lien. The document then states that because Van Burén did not pay its City of Oxford taxes for the year 2004 on unit 309, Holly Springs Realty was able to purchase it at a tax sale on August 29, 2005, for $472.68. The agreement notes that the Bank did not receive notice of the running of the redemption period as it should have by law. The agreement then notes that Holly Springs Realty paid all outstanding real estate taxes on the property which totaled $21,533.69. The Bank agreed to repay this amount to Holly Springs Realty, and Holly Springs Realty agreed to set the tax deed aside as it pertained to the Bank. That was the whole agreement.

¶ 22. We fail to see how the agreement was breached because, by law, Holly Springs Realty’s tax deed did not apply to the Bank, so the parties merely agreed to follow the law. As to the taxes paid by Holly Springs Realty on unit 309, the final order of foreclosure, the very order from which Holly Springs Realty appeals, referenced the agreed order and provided that the Bank should reimburse Holly Springs Realty in the amount of $21,533.69 plus 18% interest from February 15, 2008, and the amount of $472.68 plus 18% interest from the date of the tax sale. This issue is without merit.

X. WHERE THE CHANCELLOR STATED THAT HE WAS BASING HIS DECISION TO ORDER FORECLOSURE OF APPELLANT’S PROPERTY IN LARGE PART ON THE FACT THAT THE FIVE NON-ANSWERING DEFENDANTS HAD PURCHASED THEIR PROPERTY IN AN “ARM’S LENGTH TRANSACTION,” AND THERE WAS NO EVIDENCE TO SUPPORT THIS FINDING OF FACT, DID THE CHANCELLOR ERR IN GRANTING SUMMARY JUDGMENT AND FORECLOSURE AGAINST APPELLANT[?]

¶ 23. The basis for this assignment of error appears to be the following exchange between the attorney for Holly Springs Realty and the chancellor during a motion hearing:

THE COURT: Here is something that is troubling me, is that these other units, these were purchasers, arms-length transaction with the Van Burén Group. And so anything you have an arms-length transaction that puts it on a higher scale. Unit 309 is a buyer-beware action. You buy it at a tax sale as a buyer-beware. You buy whatever you get. It’s not an arms-length transaction. And under that theory, unit 309 was the only piece of property that Van Burén owned. And if BancorpSouth was going to start foreclosure that would be the piece of property they would have to go to first.
THE COURT: Well, is it — is it your position that Holly Springs Realty Group had an arms-length transaction in the purchase of this property?
MR. HURDLE: We — it was purchased at a tax sale and—
THE COURT: A buyer-beware tax sale.
MR. HURDLE: Certainly it’s a buyer-beware tax sale. However, that does not mean that our rights are inferior to any other property owners.
THE COURT: If that’s the situation then Mississippi law has changed, because Mississippi law has always favored the property owner. And that’s the reason that they have put contingencies in there that everybody has got to be notified of the tax deed, and if they are not notified then it’s void.

¶ 24. Again we point out that the chancellor stated no more than what is the law. In a suit by a tax-sale purchaser against the property owner, “the rule of caveat emptor is strictly applied against the purchaser.... The rule applies where the tax was legally assessed but the proceedings to sell were defective....” 72 Am.Jur.2d State and Local Taxation, Rights and Remedies of Purchaser 3. Against the Property Owner § 953 (2001). Further, Mississippi law has always favored the property owner; and as the chancellor points out, that is why a statute divesting a property owner of his ownership, like the tax-sale laws, must be strictly followed.

¶ 25. We have carefully looked at the chancery court’s opinion issued at the conclusion of the motion hearing and can find no place in which the chancellor cites arms-length transactions versus buyer-beware purchases as the basis of his decision. Instead, in deciding the issue he quoted only the law that the Bank was entitled to foreclose on unit 309 because it had not received notice of the redemption from the City of Oxford.

¶ 26. This issue is without merit.

XI. [WHERE] A PERSON SUCH AS APPELLANT WHO OWNS PROPERTY SUBJECT TO A MORTGAGE WITH NO PERSONAL LIABILITY ON THE DEBT IS IN EFFECT A SURETY UP TO THE VALUE OF HIS PROPERTY!,] DID THE CHANCELLOR ERR IN FAILING TO FIND THAT PLAINTIFF’S DISHONEST BEHAVIOR AND BAD FAITH TOWARD[ ] APPELLANT RELEASE [SIC] APPELLANT FROM ITS DUTY AS A SURETY AND THUS ACTED TO ESTOP PLAINTIFF FROM FORECLOSING ON APPELLANT^]

¶ 27. Holly Springs Realty’s argument regarding suretyship was never put before the chancellor for decision. In neither its brief of the appellant nor its reply brief is this Court pointed by Holly Springs Realty to the section of the record where the issue was put before the chancellor. The trial court will not be put in error on matters which were not submitted to it for review. Holland v. State, 587 So.2d 848, 868 (Miss.1991).

¶ 28. This issue is procedurally barred.

XII. IN A FORECLOSURE ACTION, DID THE CHANCELLOR ERR IN ORDERING THAT THE PROPERTY BE PARTITIONED IN FORECLOSURE WHEN APPELLANT, THE ONLY PROPERTY OWNER THAT FILED AN ANSWER, REQUESTED THAT THE PROPERTY BE SOLD AS A WHOLE OR NOT AT ALL[?]

¶ 29. When the Bank filed to foreclose after Van Buren’s default, it determined that it would start with the property still owned by Van Burén — unit 309. As the litigation progressed, the Bank found out that unit 309 had been sold by the City of Oxford to Holly Springs Realty for unpaid taxes. Knowing that it had not received notice of the tax sale and knowing that its hen had survived, the Bank continued on as it had started and was granted foreclosure on unit 309. The Bank received its right to foreclose from its deed of trust which stated: “Trustee shall at the request of the Secured Party sell the Property conveyed, or a sufficiency thereof, to satisfy the indebtedness at public outcry to the highest bidder for cash.” There is no requirement in the deed of trust specifying that the property must be sold as a whole. The decision on how the Bank would recover its investment was up to the Bank. We find no merit to Holly Springs Realty’s argument.

¶ 30. THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Van Burén also failed to pay City of Oxford and Lafayette County taxes for the tax years 2005, 2006, and 2007. Holly Springs Realty took it upon itself to pay all of these outstanding taxes amounting to a payment totaling $21,533.69.

      . See Booth v. Maty Carter Paint Co., 202 So.2d 8 (Fla.Dist.Ct. 1967).


author: LEE, P.J.,

text:
    Clarence ARRINGTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-00254-COA.
    Court of Appeals of Mississippi.
    Feb. 15, 2011.
    Rehearing Denied May 31, 2011.
    Certiorari Denied Sept. 8, 2011.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., ROBERTS and CARLTON, JJ.
   LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Clarence Arrington was found guilty in the Circuit Court of Jones County of felony escape. Arrington was sentenced as a habitual offender and ordered to serve five years in the custody of the Mississippi Department of Corrections. The trial court denied Arrington’s motion for a judgment notwithstanding the verdict or, in the alternative, a new trial.

2. Arrington now appeals, asserting the following issues: (1) he was deprived of his constitutional right to testify; (2) the State failed to establish that he was a habitual offender; and (3) the indictment failed to allege an essential element of the crime, and the trial court erred in allowing a jury instruction, which constituted an impermissible constructive amendment to the indictment, to be given.

FACTS

¶ 3. Arrington was brought to the Laurel Police Department for a bond hearing. Officer David Marshall of the Laurel Police Department escorted Arrington to the booking area of the police station. Arring-ton asked if he could smoke a cigarette. Officer Jim Thornhill opened the door to the security area to allow Arrington to smoke. Arrington walked out to the security area, which was at the top of a set of stairs. Officer Thornhill testified that he and Officer Marshall turned to talk to each other, and Arrington ran down the stairs. The escape was captured on surveillance video, which was shown to the jury. Ar-rington was later found hiding in a closet in a nearby residence.

DISCUSSION

I. RIGHT TO TESTIFY

¶ 4. Arrington argues that he was denied the right to testify on his own behalf by the trial court and/or his trial counsel. At trial, the following exchange occurred outside the presence of the jury:

[DEFENSE COUNSEL]: I’ve advised you that it’s your decision and your decision alone whether or not you testify in this case; correct?
[ARRINGTON]: Yes, sir.
[DEFENSE COUNSEL]: I’ve advised you that if you do choose to testify you’ll be subject to cross-examination by the district attorney’s office?
[ARRINGTON]: Yes, sir.
[DEFENSE COUNSEL]: And it will be a wide[-]open cross-examination?
[ARRINGTON]: Yes, sir.
[DEFENSE COUNSEL]: Do you want to testify in this case?
[ARRINGTON]: Yes, sir.
THE COURT: Okay.
[PROSECUTOR]: He does?
[DEFENSE COUNSEL]: Yes
[PROSECUTOR]: Your Honor, I think [defense counsel] needs to advise him that he’s going to be subject to cross-examination, and ... if he opens the door I will cross-examine him on [his prior conviction] and the particular underlying offense if he starts to allude into it, if he opens the door.
THE COURT: Does he understand that?
[DEFENSE COUNSEL]: Clarence, you understand that if you say anything about the charge of grand larceny where you’re accused [of] stealing a TV or grand larceny where you’re accused of stealing air conditioner compressors, if you mention any of those, the State can cross-examine you about the fact that you’re charged with those offenses?
[ARRINGTON]: Yes, sir.
[DEFENSE COUNSEL]: And they can also cross-examine you about your prior felony convictions if you mention them in your testimony?
[ARRINGTON]: Yes, sir, I understand.
[DEFENSE COUNSEL]: And with all that in mind you still want to testify?
[ARRINGTON]: Yes.
THE COURT: All right. Bring the jury out. You may step down. Are you going to have anymore witnesses, [defense counsel]?
[DEFENSE COUNSEL]: Your Honor, I don’t believe I will.
THE COURT: I’m just trying to get a time frame here.
[DEFENSE COUNSEL]: Your Honor, we’ve reconsidered, and he’s not going to testify....

¶ 5. Arrington argues that when his counsel announced that he did not want to testify, the trial court should have questioned him on the record again. Arrington cites to Culberson v. State, 412 So.2d 1184, 1186-87 (Miss.1982), which states:

We suggest to the trial judges of the state that, in any case where a defendant does not testify, before the ease is submitted to the jury, the defendant should be called before the court out of the presence of the jury, and advised of his right to testify. If the defendant states he does not wish to testify, he may not be forced to take the stand; however, if he states that he wants to testify he should be permitted to do so. A record should be made of this so that no question about defendant’s waiver of his right to testify should ever arise in the future.

¶ 6. Arrington was advised of his right to testify. That is all that is suggested in Culberson. We cannot find support for the contention that a defendant should be advised of his right to testify every time he or she changes his or her mind on whether to testify.

¶ 7. Further, the facts of Culberson are distinguishable from this case. In Culber-son, Alvin Culberson argued that his attorney prevented him from testifying. Id. at 1186. The Mississippi Supreme Court reversed for an evidentiary hearing after evidence was presented ' that Culberson told the trial judge during the motion for a new trial that he desired to testify. Id. Also, Culberson’s attorney admitted that he may have caused some confusion by the way he advised Culberson. Id. Arrington was given an opportunity to speak after the jury verdict was read. Arrington stated that he felt he had “been railroaded from the whole get go.” He went on to say: “That man put the charge on me. He say [sic] he was going to automatically send me to prison from the go.” Arring-ton was referring to a police officer’s statement to him. But the trial court found this immaterial as the officer did not participate in the trial.

¶ 8. Arrington did not express a desire to testify after his attorney advised the trial court that Arrington had changed his mind, and this issue was not mentioned in the motion for a new trial. We find that the trial court informed Arrington of his right and did not prevent him from testifying. If Arrington’s contention is that his attorney prevented him from testifying, we find this issue better suited for an ineffective-assistance-of-counsel claim. Such an issue is more appropriately raised in a motion for post-conviction relief, if he chooses to do so.

II. HABITUAL-OFFENDER STATUS

¶ 9. Arrington argues that the State failed to prove that he was a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007).

¶ 10. Section 99-19-81 states: 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 separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

A bifurcated hearing is required to prove habitual-offender status, and the State must prove the requirements set forth in the statute beyond a reasonable doubt. Davis v. State, 680 So.2d 848, 851 (Miss. 1996).

¶ 11. Arrington asserts that the State failed to present evidence of his prior crimes during the sentencing hearing. Prior to trial, the State moved to amend the indictment to reflect that Arrington had been convicted of two previous felonies. At the conclusion of trial, the trial court granted the State’s motion. The sentencing orders from the prior crimes were attached to the motion. The first order sentenced Arrington to serve three years for the crime of grand larceny. The second order sentenced Arrington to serve five years for the burglary of a dwelling. Both sentences were issued in Jones County-

¶ 12. Arrington argues that it was insufficient that the sentencing orders were attached to the amended indictment. He asserts the State should have offered them as exhibits at the sentencing hearing. No objection was made at trial to Arrington’s habitual-offender status; thus, Arrington must assert this argument as plain error on appeal. Brown v. State, 995 So.2d 698, 708 (¶ 21) (Miss.2008). The sentencing orders were included with the amended indictment and were made part of the record on appeal. Even though they were not introduced as exhibits at trial, we find sufficient evidence was presented to establish Arrington’s two prior convictions. This issue is without merit.

III. INDICTMENT

¶ 18. Finally, Arrington argues that his indictment was fatally defective. An essential element of Arrington’s crime, felony escape, was that Arrington was in custody for a felony arrest or felony conviction. Arrington argues that the indictment did not make clear that the confinement from which he escaped was for a felony arrest or conviction.

¶ 14. The purpose of an indictment is to put a defendant on notice of the charges against him so that he is able to prepare an adequate defense. Evans v. State, 916 So.2d 550, 551 (¶ 5) (Miss.Ct. App.2005). “All that is required is that the indictment provide ‘a concise and clear statement of the elements of the crimes charged.’ ” Id. at 551-52 (¶ 5) (quoting Williams v. State, 445 So.2d 798, 804 (Miss.1984)).

¶ 15. The indictment states that Arring-ton “did willfully, unlawfully, and felo-niously, escape from the Laurel Police Department, in which he was confined and in lawful custody, in violation of Section 97-9-49.” The indictment clearly states that Arrington “feloniously” escaped. The escape is not felonious unless the charge for which the defendant is in custody is a felony. Miss.Code Ann. § 97-9-49 (Rev. 2006). This issue is without merit.

¶ 16. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF CONVICTION OF FELONY ESCAPE AND SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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