text:
    DENBURY ONSHORE, LLC v. PRECISION WELDING, INC.
    No. 2010-CA-01880-SCT.
    Supreme Court of Mississippi.
    Aug. 2, 2012.
    As Modified on Denial of Rehearing Oct. 11, 2012.

      W. Scott Welch, III, William N. Reed, Jackson, attorneys for appellant.
    Robert V. Greenlee, Walter C. Morrison, IV, Ridgeland, John Howard Shows, Flo-wood, attorneys for appellee.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. For four years, Precision Welding, Inc., a subcontractor, provided construction services to Denbury Onshore, LLC, under an oral agreement. Denbury— claiming its contract with Precision was terminable at will — terminated the relationship in 2006. Precision filed suit, claiming Denbury had breached its obligation to keep Denbury on the job until the completion of the project. A jury found for Precision and awarded it $1,500,000 in damages. But because the oral contract between Denbury and Precision was for a particular hourly rate for work performed — and not for any particular or definite time period — we hold the contract was terminable at will, and we reverse the jury verdict. We do, however, remand for a new trial on the issue of whether, under the circumstances, Den-bury provided Precision reasonable notice of the termination and, if not, the damages it proximately caused.

FACTS AND PROCEDURAL HISTORY

The Relationship

¶ 2. Denbury Onshore is an oil and gas company that recovers tertiary oil across the State of Mississippi. Recovering tertiary oil requires large amounts of carbon dioxide gas, which Denbury recovers at its numerous dehydration plants.

¶ 3. In 2001, Denbury purchased a tract of land in central Mississippi called the “Jackson Dome.” This tract contained a large, underground reserve of carbon dioxide, and Denbury needed a welding company to help build dehydration plants necessary to recover the gas. Denbury hired Precision Welding, and from 2002 until 2006, Precision worked almost exclusively for Denbury.

¶4. Precision billed Denbury by the hour and worked at multiple plant locations. As soon as Precision finished a project, it moved to the next. Both Den-bury and Precision agree the arrangement was never in writing, and they never contemplated an end date for Precision’s work. Precision’s president, Mike Dickerson, stated that “there was never any discussion between [Precision] and Denbury that [Precision’s] work for Denbury would end in the near future.”

The Barksdale Plant

¶ 5. In 2005, Denbury — for the first time — began soliciting bids for its projects. The first project requiring a bid was a dehydration plant at the Jackson Dome, called the Barksdale Plant. This project actually was two separate plants, named Barksdale I and Barksdale II. The bid itself was a time-and-materials bid, which called for construction labor and required bidders to submit hourly rates for labor and equipment. Precision submitted a bid and Denbury accepted it and hired Precision, which began working on Barksdale I in 2006.

Termination

¶ 6. During a 2006 audit, Denbury discovered that, over the previous two years, Precision had given Wal-Mart gift cards to Denbury employees for Christmas. It is undisputed that the Denbury employees violated their company’s ethics policy by accepting the gift cards. Dickerson refused to provide Denbury’s auditors the names of the employees who had accepted the cards. When Denbury’s auditor asked Dickerson a second time, he said he could not remember who had accepted the cards. Finally, in July 2006, Dickerson again refused to give Denbury the names, so Den-bury terminated Precision Welding. At the time of the termination, construction of Barksdale I was almost half finished, and Barksdale II had not started.

The lawsuit

¶ 7. In March 2007, Precision sued Den-bury for (1) tortious interference with a business relationship; (2) breach of the duty of good faith and fair dealing; (3) tortious interference with a contract; (4) slander and defamation; (5) conspiracy; and (6) detrimental reliance. But when the ease went to trial, Precision presented only two claims to the jury: breach of contract and breach of the duty of good faith and fair dealing.

¶ 8. Prior to trial, Denbury moved for summary judgment, claiming its contract was terminable at will. Although the trial judge denied the summary judgment, Den-bury raised the same issue, both at the close of Precision’s case-in-chief, and at the close of the evidence. The trial judge denied Denbury’s motions and submitted the matter to the jury on whether the contract was terminable at will.

¶ 9. After deliberating, the jury returned a $1.5 million verdict for Precision. Den-bury moved for judgment notwithstanding the verdict (JNOV) or for a new trial, which the circuit judge denied. Denbury now appeals the denial of that motion, raising the following issues: (I) whether an oral or implied contract could have been found to exist; (2) whether the relationship between Precision and Denbury was of indefinite duration, subject to termination at will by either party; (3) whether the evidence was sufficient to prove that unreasonable notice was given before termination of the contract; (4) whether there was sufficient evidence to prove lost profits; and (5) whether the evidence was sufficient to prove breach of the duty of good faith and fair dealing.

ANALYSIS

¶ 10. ■ We review de novo a trial judge’s denial of JNOV. A “motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of the JNOV only where substantial evidence supports the verdict.” We define “substantial evidential” as evidence “of such quality and weight that reasonable fair-minded jurors in the exercise of impartial judgment might have reached different conclusions.” We review this evidence in the light most favorable to the verdict.

1. A valid oral contract existed — for hourly rates.

¶ 11. Denbury argues that the trial court erred by denying its motions for directed verdict, summary judgment, and JNOV. Our standards of review for a denial of summary judgment, directed verdict, and JNOV are the same and are listed above.

¶ 12. "While it is undisputed that Den-bury and Precision had an oral contract regarding the hourly rate to be paid by Denbury for Precision’s work, Denbury claims that it never agreed to any particular duration or scope of the work, or— other than the hourly rate — to any particular price for the job. Denbury cites Leach v. Tingle and Duke v. Whatley for the propositions that, to be enforceable, contracts must specifically state three essential terms: scope, time for inception and completion of work, and price; and contracts that do not include these essential terms are mere “agreement[s] to agree” and therefore unenforceable.

¶ 13. In Duke, for example, Lillian Whatley leased a tract of land to Jimmy and Peggy Duke and purported to grant them a right of first refusal in the lease. Regardless, "Whatley sold the property to her stepson, and the Dukes sued for specific performance. At issue was whether — where the parties agreed to determine price at a later time — the contract was enforceable. This Court noted that rights of first refusal are enforceable only where price is specifically agreed to. And as for option contracts, the parties must specifically agree to both price and the period of time in which the promisee may exercise the option. Unfortunately for the Dukes, their lease did not specify price.

¶ 14. This Court held that, “[w]ithout some written evidence of purchase price or a method of determining a purchase price ... the agreement would have to be regarded as merely a memorandum of intent.” Further, this Court held that “[wjhile courts may supply reasonable terms which the parties omitted in the contracting process, such as a time for performance, essential terms such as price cannot be left open ended questions in contracts which anticipate some future agreement.” Duke, as well as Leach, stands for the rule that contracts to enter into future contracts must contain “all ... material and essential terms and leave none to be agreed upon as the result of future negotiations.” That is because mere agreements to agree are unenforceable.

¶ 15. The strict requirements in Leach and Duke do not always apply. For example, when the parties to a contract agree to the scope of the work performed, but do not specify the time or duration for performance, the Court may infer a reasonable time. But where parties enter a contract with no specific scope of work, the contract is terminable at will by either party. And while this Court requires option contracts and rights of first refusal to specifically state price, this Court will— in other instances — enforce a contract if “one familiar with elementary principles of mathematical reasoning may deduce” the price with certainty.

¶ 16. Here, Precision agreed to provide hourly labor at hourly rates. But hourly rates — without more — do not establish the entire contract price. Denbury correctly likens its rate sheets specifying Denbury’s hourly rates to knowing “the cost per gallon of gasoline” without knowing how much will be purchased.

¶ 17. Regardless, a valid contract existed here. The relationship between Denbury and Precision was for hourly construction labor. And Denbury hired Precision by accepting the rate sheet Precision supplied. That rate sheet provided specific hourly rates for manual labor, hourly rates for use of certain equipment, and per-day and per-month charges for other specific types of equipment. The scope of the bid went no further than an agreement for Precision to be paid its hourly rate for each hour of work performed, according to the rate sheet. So, while the" price for each hour of work performed was known and agreed to, the parties had no agreement as to any particular number of hours of work. Just as Denbury was free to increase the number of work hours given to Precision, it was free to bring in other welding contractors to do part of the work; and it was free to terminate the relationship so long as it paid Precision for each hour worked, as agreed. Under this agreement, scope and price are sufficiently definite, and a valid contract existed.

2. The oral contract was terminable at will.

¶ 18. Denbury next argues that the trial judge erroneously denied Denbury’s motions for directed verdict, summary judgment, and JNOV because the contract was indefinite in time, and therefore terminable at will by either party upon reasonable notice and that the issue of whether the contract was terminable at will never should have gone to the jury.

¶ 19. In American Chocolates, Inc. v. Mascot Pecan Co., Inc., we held that “contracts for an indefinite period are terminable at will by either party upon giving reasonable notice to the other party.” To determine the terms of a contract — so as to determine definiteness — this Court applies an objective standard: It is fundamental that contract “law has nothing to do with the actual state of the parties’ minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct.” Accordingly, we look to the parties’ conduct to determine whether the contract was indefinite in time.

¶ 20. The relationship between Den-bury and Precision began in 2002 and ended in 2006. During that time, Precision provided construction services at multiple plant locations across the state, and the parties never discussed any end date or any particular amount of work for Precision. Precision’s own counsel—during closing argument at trial—demonstrated the indefiniteness of the contract by stating:

So while I suggest to you, ladies and gentlemen, that the proof is sufficient that they would have finished Barksdale 2, Gluckstadt 2, and the Natchez Trace plant, and they would have continued with all of the other work they had in south Mississippi, they, at least, were going to finish Barksdale 1.

¶ 21. Precision’s Barksdale 1 bid was a “time and materials” bid, which was “a nonexclusive contract” that did not “require a definitive amount of work to be performed.” Legal treatises on the subject agree that a

time and materials contract is a form of open-ended cost reimbursement contract under which the contractor is paid merely for furnishing construction resources of labor and materials without significant performance risk....

¶ 22. A “time and materials” bid is distinct from a “hard-money” bid (also known as a “turnkey” or “fixed-price” bid). A “hard-money” bid “is an exclusive contract whereby the parties negotiate a total sum for labor, equipment, materials, and profit.” Further, a hard-money bid is a contract to build an entire project—as a whole or as a unit—for a fixed amount. Because the bid here was a “time and materials” bid, the agreement was for hourly labor—not a definite agreement to build the entire plant.

¶ 23. Because Denbury orally contracted for Precision’s labor—charged at hourly rates with no specific end date, no particular number of hours, and no set scope of work committed to Precision—we hold that the contract was indefinite in duration. This Court has held that a contract “without limit as to duration, will not be construed as a perpetual contract but rather as terminable at the pleasure of either party, or that the things to be done shall be performed within a reasonable time.”

¶ 24. At oral argument, we asked Precision’s counsel to point us to evidence in the record showing that Denbury was obligated to allow Precision to complete any particular amount of work, thereby making the contract’s time period definite. Precision cited subjective aspirations, hopes, and beliefs that it would be allowed to finish the Barksdale plant and continue providing labor for Denbury in the future. For example, Dickerson stated in an affidavit:

I anticipated that [Precision] would complete the entire dehydration (C02) plant at Barksdale 1 .... [and][i]t was my understanding and belief that [Precision] would continue to work for Den-bury Onshore, LLC for as long as Den-bury Onshore, LLC continued to expand its operations in Mississippi and Louisiana.

Precision’s counsel also pointed to the bid itself, which was nothing more than a bid for hourly “Construction Labor” — not a “fixed bid.”

¶ 25. Precision Welding may have anticipated that it was going to finish the Barksdale plant. It may have also believed that Denbury was obligated to let it finish Barksdale 1 and any future plants Denbury would require. But this Court follows the fundamental principle of contract law that contractual terms “must be interpreted by objective, not subjective standards....”

¶ 26. Precision Welding cited much evidence of its subjective beliefs, thoughts, and aspirations, but no objective evidence that it committed — and was obligated to perform — any particular amount of work, or that Denbury was obligated contractually to provide Precision any particular amount of work. Therefore, we must hold that the oral contract between Denbury and Precision was for an indefinite period and terminable at will.

¶ 27. Denbury was free to terminate the contract, but Precision was entitled to reasonable notice of the termination. We have held that a reasonable time is “an issue for resolution by the jury as to whether appellant’s notice to terminate the contract was reasonable under the circumstances.” Therefore, we reverse and remand for trial as to that issue, and we need not address the remaining issues.

¶ 28. The dissent incorrectly perceives that our “sole reason for reversing and remanding this matter for trial is to have the jury determine whether or not Den-bury gave Precision reasonable notice ....” It is true that our reason for remanding is to have a jury determine the reasonable-notice issue. But our reason for reversing is different. The contract was clearly terminable at will, and the trial judge should have so instructed the jury. Stated another way, the trial judge should have granted Denbury’s motion for directed verdict on that issue.

¶ 29. The dissent also presumes that the jury considered whether Denbury gave reasonable notice to Precision. But the jury was instructed to consider the reasonableness of notice only if it found that the contract was terminable at will. And, based on the damages award in this case, the jury clearly did not find the contract was terminable at will; thus, it never reached the issue of whether Denbury gave reasonable notice.

CONCLUSION

¶30. Denbury and Precision entered into a valid oral contract for Precision to provide Denbury hourly construction and welding services at specified hourly rates. But, because this arrangement was for an indefinite period of time, the contract was terminable at will by either party upon reasonable notice. Because the jury instructions allowed the jury to find that the contract was not terminable at will, we reverse the jury verdict and remand for a new trial as to whether Denbury gave Precision reasonable notice and — should the jury find Denbury did not give reasonable notice — for reasonable damages proximately caused by the lack of reasonable notice.

¶ 31. REVERSED AND REMANDED.

CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.

KING, Justice,

dissenting:

¶ 32. I dissent from the majority opinion herein, and would affirm the trial court’s verdict.

¶ 33. The majority finds that Denbury and Precision had an oral contract for an indefinite period which was terminable at will by either party. The majority suggests that this contract was for an indefinite period because it did not say the contract period was to commence and end on a predetermined date. Given the nature of this project, such a view is a bit myopic.

¶ 34. The scope of the project was Barksdale 1. The price was the bid as accepted for labor and materials. This was a project being designed as it was being constructed. As such, a firm time-line was not possible. When no time for performance is given, the general rule is that a reasonable period of time for construction is to be inferred. Deer Creek Constr. v. Peterson, 412 So.2d 1169, 1172 (Miss.1982). The parties indicated that there was no dissatisfaction with either the quality or the timeliness of Precision’s work.

¶ 35. Applying this general rule to the facts of this case, I do not believe that this Court can say beyond a doubt that the contract was so indefinite that the trial court was obligated to determine as a matter of law that this contract was terminable at will. As such, I believe the trial court correctly refused Denbury’s motion for summary judgment on this issue and properly submitted the following to the jury: (1) whether or not a contract existed and, (2) if so, the nature of that contract.

¶ 36. In paragraph 27 of its opinion, the majority states:

Denbury was free to terminate the contract, but Precision was entitled to reasonable notice of the termination. We have held that a reasonable time is “an issue for resolution by the jury as to whether appellant’s notice to terminate the contract was reasonable under the circumstances.” Therefore we reverse and remand for trial as to that issue, and we need not address the remaining issues.

¶ 37. The majority’s sole reason for reversing and remanding this matter for trial is to have the jury determine whether or not Denbury gave Precision reasonable notice of its intent to terminate the contract. Even a casual reading of the record before this Court reveals that the issue of whether Denbury gave Precision reasonable notice of contract termination was presented to the jury, which resolved that issue in favor of Precision.

¶ 38. Following a conference with the attorneys in chambers on jury instructions, at page 377 of the record, the trial judge stated:

All right, the attorneys for the respective parties and the Court have met in chambers to go over jury instructions. For the record, there were only two instructions which were not agreed upon by the parties. The first instruction, which was objected to by the plaintiff, was D-3, concerning the terminability [sic], at will of a contract.
The Court has revised the instruction, based upon the Federal case of Roberts versus Southern Wood Piedmont Company, et al., cited at 571 F.2d 276 [ (5th Cir.1978) ]. That case states that under Mississippi law, contracts for an indefinite period are terminable at will by either party upon giving reasonable notice to the other party. Based upon the language in that case, the court has had the parties modify that instruction.

(Emphasis added.)

¶ 39. The trial court then proceeded to give the modified instruction D-3, as instruction 10, which can be found in the record at page 578. That instruction, as given to the jury, stated:

A contract that does not contain a termination date is terminable at the will of either party upon reasonable notice to the other party. Accordingly, if you find by a preponderance of the evidence in this case that a contract existed between Precision Welding and Denbury, that the contract did not contain a termination date, and that Denbury provided reasonable notice to Precision Welding, then Denbury had a right to terminate the contract at will.

This instruction, which was given by the trial court, placed squarely before the jury the factual question of whether Denbury gave Precision reasonable notice of the termination of the contract. This court has no basis upon which to assume that the jury ignored the trial court’s instructions. This Court consistently has held that the jury is presumed to follow the court’s instructions. See J.K. v. R.K., 30 So.3d 290, 300 (¶ 36) (Miss.2009). And there is nothing in the record which indicates that the jury failed to follow the instructions of the trial court.

¶ 40. In determining whether the notice of termination was reasonable, the consideration of the duty of good faith and fair dealing is relevant. In this case, Denbury immediately terminated the contract based upon an issue that was not discussed with Precision prior to entering into the contract, an issue which did not go to the substance of the contract, and an issue of which it did not give Precision notice until after the event had occurred. Given these facts, there existed no substantial evidence to suggest to a jury that Denbury complied with the duty of good faith and fair dealing. Under these circumstances, there is no foundation upon which to find this notice of termination was reasonable.

¶ 41. The majority would have you believe that it alone knows what was or was not considered by the jury. It states that the jury did not find the contract to be terminable at will and, thus, never reached the issue of reasonable notice. Unless the majority participated in the jury deliberations, that conclusion is merely speculation. However, that is not the only possible conclusion which can be drawn from these facts. It is equally plausible that the jury, consistent with the instructions, found that: (1) a contract terminable at will existed, and (2) because Denbury terminated the contract based on an issue that did not go the substance of the contract, which was not discussed prior to formation of the contract, nor before it occurred, the notice was unreasonable. Having determined that the notice was unreasonable, the jury was allowed to award those damages, which it thought would make Precision whole.

¶ 42. For these reasons, I would affirm the judgment.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

      . U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (Miss.2008).

      . Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 948 (Miss.2008) (citing Johnson v. St. Dominics-Jackson Mem'l Hosp., 967 So.2d 20, 22 (Miss.2007)).

      . Natchez Elec. & Supply Co. v. Johnson, 968 So.2d 358, 362 (Miss.2007) (citing Blake v. Clein, 903 So.2d 710, 731 (Miss.2005)).

      . Adcock, 981 So.2d at 948.

      . Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 720 (Miss.2001).

      . Leach v. Tingle, 586 So.2d 799 (Miss.1991).

      . Duke v. Whatley, 580 So.2d 1267 (Miss.1991).

      . Sun Printing & Publ’g Ass’n v. Remington Paper & Power Co., 235 N.Y. 338, 139 N.E. 470 (1923).

      . Id. at 1268-69.

      . Id. at 1271.

      . Id.

      . Id.

      . Id.

      . Id. at 1273 (emphasis added).

      . Id.

      . Id. at 1273-74.

      . Id.

      . Id.

      . Deer Creek Constr. Co., Inc. v. Peterson, 412 So.2d 1169, 1172 (Miss.1982).

      . American Chocolates, Inc. v. Mascot Pecan Co., Inc., 592 So.2d 93, 95 (Miss.1991).

      . HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1105 (Miss.2003).

      . Oliver Wendell Holmes, The Common Law 242 (Howe ed.1963).

      . Dixie South Indus. Coating, Inc. v. Mississippi Power Co., 872 So.2d 769, 770 (Miss.Ct.App.2004).

      . Philip L. Bruner & Patrick J. O’Connor, Jr., Bruner & O’Connor on Construction Law § 2:20. 76 (West Group 2002) (citing F.A.R. § 16.601(b); 48 C.F.R. § 16.601(b)).

      . Dixie South Indus. Coating, Inc., 872 So.2d at 770.

      . City of Starkville v. 4-County Elec. Power Ass’n, 819 So.2d 1216, 1232 (Miss.2002).

      . Leach, 586 So.2d at 803 (citing Gordon v. Fechtel, 220 Miss. 722, 729-30, 71 So.2d 769, 771 (1954)). This Court has noted that, when option contracts are not at issue, courts may infer a reasonable price; but we need not do that here. Pugh v. Gressett, 136 Miss. 661, 101 So. 691, 698 (Miss.1924) ("An offer to sell goods need not specify the price, for, if no price is stated, it will be presumed that the reasonable market price was intended.”) (citing 13 Corpus Juris 268); 1 Williston on Contracts § 4:25 (4th ed. 2000) (If "no statement as to the wages or price to be paid” is listed, the court will "invoke a standard of reasonableness so that the fair value of the services or property is recoverable.”)

      . Leach, 586 So.2d at 803 ("Where, from the terms of the contract, one familiar with elementary principles of mathematical reasoning may deduce with certainty the sales price, the contract will not fail.”) (citing Gordon v. Fechtel, 220 Miss. 722, 729-30, 71 So.2d 769, 771 (1954)). Here, no one could "deduce with certainty the sales price” because the parties never agreed to any particular number of hours.

        .American Chocolates, Inc., 592 So.2d at 95 (Miss.1991); Hazell Mach. Co. v. Shahan, 249 Miss. 301, 161 So.2d 618 (1964); U.S. Fin. Co. v. Barber, 247 Miss. 800, 157 So.2d 394 (1963) ("[A] contract for an indefinite period, such as one for employment ... which by its nature is not deemed to be perpetual, may be terminated at any time on giving reasonable notice.”) (citing 2 Corbin on Contracts § 446 (1950); 17A C.J.S. Contracts § 398).

      . This affidavit — although in the record— was never admitted into evidence, and the jury never saw it. We refer to its contents only because it summarizes Dickerson’s testimony at trial.

      . See Frigaliment Importing Co. v. B.N.S. Intern. Sales Corp., 190 F.Supp. 116, 117 (D.C.N.Y.1960) ("[T]he making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties’ having meant the same thing but on their having said the same thing.") (citing Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L.Rev. 457 (1897)).

      . Boyd, 865 So.2d at 1105.

      . First Miss. Bank of Commerce v. Latch, 433 So.2d 946, 950 (Miss. 1983). See also King v. Exxon Co., U.S.A., 618 F.2d 1111, 1119 (5th Cir.1980) (“what constitutes reasonable notice of termination ... is a question to be resolved by the jury, since reasonable notice will vary in accordance with the facts and circumstances of each case.”).

      . (Emphasis added.)


source: Caselaw Access Project

author: PIERCE, Justice,

license: Public Domain

text:
    MISSISSIPPIANS EDUCATING FOR SMART JUSTICE, INC., Mississippi Cure, Inc., Robert Simon, Rodney Gray a/k/a Rodney Fitge Gray and Benny Joe Stevens v. MISSISSIPPI DEPARTMENT OF CORRECTIONS.
    No. 2011-CA-00632-SCT.
    Supreme Court of Mississippi.
    Aug. 23, 2012.
    Michael James Bentley, Jackson, David Neil McCarty, James Michael Priest, Jr., Jackson, attorneys for appellants.
    Office of the Attorney General by Jason Lewis Davis, Harold Edward Pizzetta, III, attorneys for appellee.

      Before WALLER, C.J., LAMAR and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Three death-row inmates, Robert Simon, Rodney Gray, and Benny Stevens, along with the groups, Mississippians Educating for Smart Justice and Mississippi CURE, Inc. (collectively, the petitioners) filed a complaint in the Hinds County Circuit Court, seeking a writ of mandamus, injunctive relief, and/or a declaratory judgment against the Mississippi Department of Corrections (MDOC). The complaint alleged that the MDOC’s newly-adopted execution protocol was invalid pursuant to Mississippi Administrative Procedures Law (MAPL) because the MDOC had adopted a new rule with regard to the MDOC’s lethal-injection protocol without first meeting the notice-and-comment requirements set forth by the MAPL. The circuit court denied relief, finding that the MDOC’s lethal injection protocol is exempted from the MAPL because the MAPL specifically excludes matters “directly related to inmates.” We affirm the circuit court’s judgment.

DISCUSSION

¶ 2. Executions are governed by Mississippi Code Sections 99-19-51 through 99-19-61 (Rev.2007). Section 99-19-51 states:

The manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice.

Pursuant to Section 99-19-58, the state executioner or duly authorized representative shall inflict the punishment of death, and all duties and necessary acts pertaining to the execution shall be performed by the commissioner of corrections, except where such duties and actions are vested in the state executioner.

¶ 3. Prior to March 2011, the execution protocol implemented by the commissioner for carrying out the method of death prescribed by Section 99-19-51 had called for injection of three drugs: (1) sodium pento-thal (also known as sodium thiopental), an anesthetic; (2) pavulon (also known as pancuroniam bromide), a paralytic agent; and (8) potassium chloride, which stops the heart. In 2009, Hospira, Inc., the sole United States manufacturer of the drug sodium thiopental, announced that it planned to stop producing sodium thiopen-tal, because the company did not want the drug used in executions. A nationwide shortage of the drug ensued, and a number of states began substituting pentobarbital for sodium thiopental in their respective states execution protocol. See e.g. Jackson v. Danberg, 656 F.3d 157, 160 (3rd Cir.2011) (noting that “[d]ue to a nationwide shortage of sodium thiopental, Delaware, along with a number of other states, revised its protocol to allow for the use of an alternative barbiturate, pentobarbital”); see also Valle v. Singer, 655 F.3d 1223, 1229 n. 5 (11th Cir.2011) (noting Florida’s recent replacement, along with Georgia and Alabama).

¶ 4. On March 29, 2011, the MDOC issued a revised execution protocol, allowing the use of pentobarbital, “[i]n the event of an unavailability of a sufficient quantity of sodium pentothal from available sources.... ” The petitioners thereafter filed a complaint in the circuit court in April 2011, claiming that this revision to the MDOC’s execution protocol constituted an invalid rule change under Mississippi Code Section 25-43-8.111 (Rev.2010), which states, in part: “A rule adopted after July 1, 2005, is invalid unless adopted in substantial compliance with the provisions of Sections 25-43-3.102 through 25-43-3.110.” The circuit court denied relief based on the finding that the MDOC’s execution protocol does not constitute a “rule” under the MAPL. The circuit court noted that the MAPL defines a “rule” as: the whole or a part of an agency regulation or other statement of general applicability that implements, interprets, or prescribes law or policy. See Miss.Code Ann. § 25-43 — 1.102(i)(i) (Rev.2010). And the court found that the MAPL specifically exempted from the definition of a rule any regulation “directly related only to inmates of a correctional or detention facility, students enrolled in an educational institution or patients admitted to a hospital, if adopted by that facility, institution, or hospital.” Miss.Code Ann. § 25-43-1.102(i)(ii)(6) (Rev.2010).

¶ 5. The petitioners argue on appeal that the circuit court erroneously held that the MDOC’s execution protocol qualifies for the MAPL’s exemption for rules. They contend the circuit court gave an overly broad reading of the statute, which, the petitioners maintain, is narrowly drawn and, by its plain terms, applies only to agency rules that satisfy two criteria: The rule (1) must directly relate only to inmates and (2) must have been adopted by an individual correctional facility. According to the petitioners, the MDOC’s execution protocol relates to far more persons than inmates alone, as it governs the conduct of twenty-nine categories of MDOC personnel, outside witnesses to the execution, and even members of the media. They further contend that the execution protocol is an agency-wide policy, promulgated by the MDOC itself, not by a specific prison facility in Mississippi.

¶ 6. This Court reviews questions of statutory interpretation de novo. Our duty is “to neither broaden nor restrict the legislative act” when passing upon such questions. Miss. Dep’t of Transp. v. Allred, 928 So.2d 152, 156 (Miss.2006). We held in Green v. Cleary Water, Sewer & Fire Dist., 910 So.2d 1022, 1027 (Miss.2005), that “courts cannot restrict or enlarge the meaning of an unambiguous statute.” And we reiterated in Allred:

[When] considering a statute passed by the Legislature, ... the first question a court should decide is whether the statute is ambiguous. If it is not ambiguous, the court should simply apply the statute according to its plain meaning and should not use principles of statutory construction. [Citations omitted]. Whether the statute is ambiguous or not, the ultimate goal of this Court is to discern and give effect to the legislative intent.

Allred, 928 So.2d at 154 (quoting City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)).

¶ 7. As the State points out, the claim before us is not a novel one. A similar question was presented to the Missouri Supreme Court in Middleton v. Missouri Department of Corrections, 278 S.W.3d 193, 195 (Mo.2009). There, the Missouri Supreme Court was asked to declare whether the Missouri Department of Corrections’ newly adopted execution protocol was void because the department had failed to undertake notice-and-comment rulemaking as outlined by the Missouri Administrative Procedures Act (MAPA). Id. at 195. Similar to the exemption provision found in the MAPL, the MAPA provides that a “rule” does not include any “statement concerning only inmates of an institution under the control of the department of corrections....” Id. In finding that the execution protocol was not subject to the rulemaking requirements of the MAPA, the Missouri Supreme Court held that the Missouri Legislature intended for the language, “concerning only inmates,” to simply “limit who may be the direct subject of a protocol or statement.” Id. at 196. The Middleton Court reasoned as follows:

Indeed, in some sense, nearly every aspect of prison life involves people from outside the prison system, such as cafeteria food made with ingredients from outside sources, specialized hospital care, and interagency transportation. The protocol in this case concerns the technical procedure that guides medical personnel who are members of an “execution team” in preparing chemicals for lethal injection and in supervising their administration. The medical professionals are serving a technical role. Beyond the fact that their skills are needed to carry out the technical provisions effectively, this is not a protocol that is concerned with directing the behavior of medical professionals, whose role is incidental.

Id.

¶ 8. We agree with the Missouri Supreme Court’s rationale. Here, the fact that the execution protocol contains provisions pertaining to individuals other than a condemned inmate does not lead us to a conclusion that the drug protocol falls within the strictures of the MAPL. Indeed, no serious contention can be made that the MDOC’s drug protocol falls outside Section 25 — 43—1.102(i) (ii) (6), as every intricate detail of the protocol applies directly to death-row inmates under any ordinary meaning of the exemption language set forth by that section.

¶ 9. As mentioned, “[a]ll duties and necessary acts pertaining to the execution of a convict shall be performed by the commissioner of corrections.... ” Miss.Code Ann. § 99-19-53 (Rev.2007). Section 99-19-55 specifies, in part that the commissioner:

shall secure the presence at such execution of the sheriff, or his deputy, of the county of conviction, at least one (1) but not more than two (2) physicians or the county coroner where the execution takes place, and bona fide members of the press, not to exceed eight (8) in number, and at the request of the condemned, such ministers of the gospel, not exceeding two (2), as said condemned person shall name. The Commissioner of Corrections shall also name to be present at the execution such officers or guards as may be deemed by him to be necessary to insure proper security. No other persons shall be permitted to witness the execution, except the commissioner may permit two (2) members of the condemned person’s immediate family as witnesses, if they so request and two (2) members of the victim’s immediate family as witnesses, if they so request. Provided further, that the Governor may, for good cause shown, permit two (2) additional persons of good and reputable character to witness an execution. No person shall be allowed to take photographs or other recordings of any type during the execution. The absence of the sheriff, or deputy, after due notice to attend, shall not delay the execution.

Miss.Code Ann. § 99-19-55 (Rev.2007). The section also provides that the execution shall take place at 6:00 p.m., or as soon as possible thereafter within the next twenty-four hours, at an appropriate place designated by the commissioner on the premises of the state penitentiary at Parchman, Mississippi. The execution protocol at issue applies specifically to the facility at Parehman, and it does not affect any provision of Section 99-19-55 or alter Section 99-19-51.

¶ 10. Accordingly, we find that the MDOC execution protocol is a “regulation or statement” related only to inmates of the MDOC and is therefore exempt from the provisions of the MAPL. The protocol is an internal policy concerning lethal injections and the manner in which executions are carried out and is therefore not subject to the notice and comment requirements of the MAPL. Thus, this Court affirms the circuit court’s judgment.

CONCLUSION

¶ 11. The circuit court’s denial of the petitioners’ complaint for a declaratory judgment, writ of mandamus, and injunction is affirmed.

¶ 12. AFFIRMED.

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

      . Two of the appellants are deceased: Stevens was executed by the Mississippi Department of Corrections on May 10, 2011, and Gray was executed on May 17, 2011.


author: BARNES, J.,

text:
    Cardie BLACKWELL, Appellant v. HOWARD INDUSTRIES, INC., Appellee.
    No. 2010-WC-01516-COA.
    Court of Appeals of Mississippi.
    Jan. 24, 2012.
    Rehearing Denied June 19, 2012.
    Certiorari Denied Sept. 27, 2012.

      Ray T. Price, Hattiesburg, attorney for appellant.
    Douglas S. Boone and Parker Ford Leg-gett, Laurel, attorneys for appellee.
    Before IRVING, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Cardie Blackwell was denied permanent total disability benefits by the Mississippi Workers Compensation Commission (Commission). He appealed the Commission’s decision to the Jones County Circuit Court. However, several months elapsed, and Blackwell had not filed a brief with the circuit court. After the Jones County Circuit Clerk notified him of this deficiency, Blackwell filed a brief; however, the brief failed to conform to all the requirements of the Mississippi Rule of Appellate Procedure 28(a). The circuit court dismissed Blackwell’s appeal with prejudice as a result. He now appeals, claiming that he was not required to file a brief, and the circuit court’s dismissal based on any deficiencies in his brief was not warranted. Finding that the dismissal of Blackwell’s appeal was an abuse of discretion, we reverse the circuit court’s dismissal and remand this case for further proceedings.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Blackwell was an employee of Howard Industries Inc. (Howard Industries). On May 22, 2002, he sustained a work-related injury to his left elbow. Blackwell was paid $268.59 per week in temporary total disability benefits, and Howard Industries also paid for Blackwell’s recommended surgical procedure. However, a disagreement over his treatment arose; so Blackwell filed a petition to controvert with the Commission on January 31, 2003. Howard Industries responded with a motion to terminate benefits, and between 2003 and 2007, several motions were filed with the Commission by both parties contesting the extent of Blackwell’s injury and payment of Blackwell’s medical treatment.

¶ 3. At a hearing before an administrative judge (AJ) on December 6, 2007, the parties stipulated that Blackwell had reached maximum medical improvement (MMI) on August 5, 2005. The dispute, therefore, was whether Blackwell was permanently and totally disabled as a result of “complex regional pain syndrome.” On February 27, 2009, the AJ found that Blackwell’s injury was “limited to the left upper extremity” and that he was not entitled to any “permanent disability benefits as he failed to participate in reasonable/necessary medical treatment[,]” which has “impacted the current condition of his left upper extremity.” Blackwell appealed the AJ’s order to the full Commission, and a hearing was held on August 31, 2009. The Commission affirmed the order, and Blackwell appealed the Commission’s decision to the circuit court on October 9, 2009.

¶ 4. Several months elapsed, yet Blackwell never filed a brief with the circuit court. Instead, he filed a motion requesting oral argument on April 13, 2010. Howard Industries responded with a motion to dismiss, claiming that Blackwell’s failure to file a brief violated the Mississippi Rule of Appellate Procedure 28(a). On May 18, 2010, the circuit court issued an order instructing the circuit clerk to serve Blackwell with a notice of deficiency, requesting that a brief be filed within fourteen days upon receipt of notification. Blackwell filed a brief on June 3, 2010; however, although his brief contained a thorough discussion of the legal issues, it did not conform to all of the requirements of Rule 28(a).

¶ 5. Citing the deficiencies in Blackwell’s brief, Howard Industries filed a second motion to dismiss on July 2, 2010. A hearing was held on July 26, 2010, regarding the motion to dismiss, but neither Blackwell, nor his attorney, were in attendance. On July 27, 2010, the circuit court entered an order of dismissal with prejudice based on Blackwell’s failure “to timely and diligently prosecute [the] action.” Blackwell filed a motion to reconsider, which was denied. Blackwell appeals the circuit court’s dismissal, claiming that there was no requirement that he had to file a brief, and he should have been given a second notice of deficiencies.

¶ 6. While we find that Blackwell was required to file a brief with the circuit court, we agree that a second notice of deficiency should have been sent to Blackwell and that lesser sanctions, rather than dismissal, would have been appropriate. Accordingly, we reverse the circuit court’s judgment and remand this case for further proceedings.

I. Whether the circuit court erred in requiring Blackwell to submit a brief.

¶ 7. Blackwell claims the Workers’ Compensation system is based on statutory construction, and he was under no obligation to file a brief with the circuit court on appeal. He contends that “it is entirely incumbent upon the circuit court to take up and decide the appeal.”

¶8. However, this Court has rejected this argument, finding that the rules of appellate procedure are applicable to appeals to the circuit court. In Thomas v. Five County Child Development Program, Inc., 958 So.2d 247, 249 (¶ 8) (Miss.Ct.App.2007), Tequilia Thomas argued that she was not required to file a brief on her appeal from a Commission decision and that “the circuit court had a duty to rule on the record notwithstanding her failure to file a brief.” We concluded:

[Mississippi Rules of Appellate Procedure] Rule 31(b) mandates that a brief be filed within forty days of the filing of the record in the circuit court. Rule 31(a) provides that the clerk’s failure to provide notice of the receipt of the record or a party’s failure to receive such notice does not excuse an untimely filed brief.... No brief was ever filed by Thomas[,] nor was a motion for extension or enlargement of time. Accordingly, we find that the time for filing a brief began to run when the circuit clerk filed the record, and we reject Thomas’s contentions that the filing of a brief is not mandatory, and that the time to file a brief did not begin to run.

Id. at 250 (¶ 12) (emphasis added). “[T]he consequences of failure to file a brief in the circuit court are the same as in the supreme court.” Id. at (¶ 14). See also Truax v. City of Gulfport, 931 So.2d 592, 596 (¶ 12) (Miss.Ct.App.2006) (The dismissal of Truax’s appeal for failure to file an appellate brief within forty days after the filing of record was not an abuse of discretion.) Therefore, we find no merit to Blackwell’s claim that he was not required to file a brief with the circuit court.,

II. Whether the circuit court erred in dismissing Blackwell’s appeal with prejudice without providing notice of the procedural defects in his brief.

¶ 9. Blackwell argues that he should have been afforded a second notice of deficiency regarding the procedural issues with his brief, and consequently, the circuit court erred in dismissing his complaint with prejudice. As already stated, Blackwell failed to file a brief to accompany his appeal to the circuit court. It was only after he received a notice of deficiency pursuant to Mississippi Rule of Appellate Procedure 2(a)(2), that he provided a brief to the court on June 3, 2010, several months after filing his appeal. However, although Blackwell’s brief stated the facts of the case and presented a substantive legal argument, it did not conform to Mississippi Rule of Appellate Procedure 28(a), as it failed to include a certificate of interested persons, a statement of the issues, and a statement of the case. See M.R.A.P. 28(a). Noting these deficiencies, Howard Industries filed a second motion to dismiss. Blackwell’s attorney was not present at the hearing on the motion to dismiss, although he later admitted that he had notice of the hearing. The circuit court granted Howard Industries’ motion to dismiss.

¶ 10. A circuit court’s grant of a motion to dismiss is reviewed for abuse of discretion. Pinson v. Grimes, 42 So.3d 650, 652 (¶ 5) (Miss.Ct.App.2010). Mississippi Rule of Appellate Procedure 2(a)(2) states:

An appeal may be dismissed upon motion of a party or on motion of the appropriate appellate court (i) when the court determines that there is an obvious failure to prosecute an appeal; or (ii) when a party fails to comply substantially with these mies. When either court, on its own motion or on motion of a party, determines that dismissal may be warranted under this Rule 2(a)(2), the clerk of the Supreme Court shall give written notice to the party in default, apprising the party of the nature of the deficiency. If the party in default fails to correct the deficiency within fourteen (14) days after notification, the appeal shall be dismissed by the clerk of the Supreme Court. The attorney for the party in default has the burden to correct promptly any deficiency or to see that the default is corrected by the appropriate official. Motions for additional time in which to file briefs will not be entertained after the notice of the deficiency has issued.

(Emphasis added). As this Court has stated consistently, “with respect to the issue of mandatory or discretionary dismissals, the Mississippi Rules of Appellate Procedure apply to appeals from an agency decision to the circuit court.” Fields v. City of Clarksdale, 27 So.3d 464, 467 (¶ 8) (Miss.Ct.App.2010) (citing Wheeler v. Miss. Dep’t of Envtl. Quality Permit Bd., 856 So.2d 700, 704 (¶ 14) (Miss.Ct.App.2003)).

¶ 11. An appellee’s motion to dismiss “cannot be substituted for an official notice of deficiencies from the court clerk.” Van Meter v. Alford, 774 So.2d 430, 432 (¶ 4) (Miss.2000). “Even where a party has moved to dismiss, the plain language of the rule requires a notice from the clerk of the deficiency and a fourteen day opportunity to cure the deficiency.” Id. As the deficiencies in the brief prompted Howard Industries to file a second motion to dismiss, we find that the circuit court should have given Blackwell notice that his brief did not conform to the rules and an opportunity to correct such errors.

¶ 12. Furthermore, “dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.” Holder v. Orange Grove Medical Specialties, P.A., 54 So.3d 192, 197 (¶ 17) (Miss.2010) (quoting Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1034 (¶ 11) (Miss.1999)). “[Djismissal for failure to prosecute will be upheld only where the record shows the plaintiff has been guilty of dilatory or contumacious conduct.” Id. (quoting Miss. Dep’t of Human Sens. v. Guidry, 830 So.2d 628, 632 (¶ 13) (Miss.2002)). We find nothing in the record to indicate that Blackwell was engaging in “dilatory or contumacious conduct.” Moreover, Blackwell’s brief was more than twenty pages and contained a thorough legal argument, including citations to appropriate legal authority. Therefore, we find that the circuit court’s dismissal of Blackwell’s appeal based on the deficiencies was an abuse of discretion, and we remand this case with instructions that the circuit clerk provide appropriate notice and that Blackwell be given fourteen days to correct those procedural deficiencies.

¶ 13. However, we also find that the circuit court may consider lesser sanctions against Blackwell’s counsel. In Van Meter, the Mississippi Supreme Court reversed the circuit court’s dismissal of the appellant’s claim, but found the consideration of lesser sanctions “appropriate.” Van Meter, 774 So.2d at 432 (¶ 8). It reasoned that, although Van Meter “did not receive actual notice from the court clerk, Alford’s motion to dismiss provided constructive notice that his appeal was subject to dismissal.” Id. The supreme court further stated:

The administration of justice was hindered when Van Meter, who was under a duty to insure that proper appellate procedure was. complied with, sat back and waited for the court to give him actual notice of something of which he already had constructive notice and something he had a duty to know.

Id. at 432-33 (¶ 8). “Lesser sanctions include ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” American Tel. and Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181— 82 (¶ 17) (Miss.1998) (quoting Wallace v. Jones, 572 So.2d 371, 377 (Miss.1990)).

¶ 14. Although Blackwell’s attorney had notice of the hearing on the second motion to dismiss, he failed to appear. He informed the circuit court at the subsequent hearing on his motion to reconsider that he merely was not available and that he “just didn’t get it on [his] calendar to get handled without showing up.” Counsel also argues in the appellant’s brief that such items requested in the procedural rules are not necessary and are “simply busy work.” We find counsel’s disregard for appellate procedural rules, not to mention the circuit court’s and opposing counsel’s time, disrespectful and inexcusable. Consequently, we submit that consideration of lesser sanctions against counsel would be appropriate in this instance.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, PJJ, ISHEE, ROBERTS, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


author: IRVING, P.J.,

text:
    Markeith WILLIAMS a/k/a Markeith Deantwon Williams, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-KA-01522-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2012.
    Rehearing Denied June 26, 2012.
    Certiorari Denied Sept. 27, 2012.

      Jane E. Tucker, James W. Craig, attorneys for appellant.
    Office of Attorney General, by W. Glenn Watts, attorney for appellee.
    Before IRVING, P.J., BARNES, and ROBERTS, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On August 10, 2010, a jury convicted Markeith Williams of armed robbery. The Grenada County Circuit Court sentenced him to forty years in the custody of the Mississippi Department of Corrections with twenty-five years to serve, fifteen years suspended, and fifteen years of post-release supervision, with five years supervised and ten years unsupervised.

¶ 2. Feeling aggrieved, Williams appeals and argues that: (1) the circuit court erred in admitting improper identification evidence; (2) he was prejudiced by improper character evidence presented at trial; (3) the circuit court erred in granting a jury instruction on flight; (4) he received ineffective assistance of counsel; and (5) the cumulative effect of the above errors deprived him of his right to a fair trial.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. On October 7, 2009, Tim Arora was working at the Race Way convenience store/service station in Grenada, Mississippi. At approximately 7:30 p.m., a tall, well-built man with “braids” in his hair entered the store and walked into the store’s restroom. When he came out of the restroom, he displayed a handgun and shoved Arora to the floor. A second man then entered the store. The man with braids in his hair went behind the counter, opened the cash register, and removed money from it. He also allegedly took envelopes containing large sums of money from the top of the store’s safe. The two men then left the store. Customers entered the store soon afterward, and Arora told them that the store had just been robbed. Arora called the police, and they arrived moments later.

¶ 5. Arora testified that the next day, the police asked him to look at a photographic lineup of eight individuals. He further testified that a police officer asked him if the first person pictured in the lineup was the first man that he had encountered during the robbery and explained: “[Tjhat’s the guy we got [sic].” Arora recalled telling the officer that the individual in the photograph could have been the person who had robbed the store but that he was not certain. Arora testified that he told the officer that he did not get a good look at the man’s face because he had his head down on the floor during the robbery. Arora could only remember that the man was tall, had braids in his hair, wore dark clothing, and had a bandana around his neck.

¶ 6. During Arora’s testimony, the State showed him a photographic lineup and asked him if he remembered signing his name anywhere on the lineup sheet. Aro-ra replied, “No, sir. I might have; I’m not sure.” The photographs were not entered into evidence, and the State did not ask Arora to identify Williams in court.

¶ 7. Next, the State presented testimony from Jeremy Ward and Cherrelle White, both of whom were at the Race Way near the time of the robbery. Ward testified that, on October 7, sometime between 7:00 p.m and 8:00 p.m., he and White drove to the Race Way to buy cigarettes. Ward testified that he parked his vehicle approximately ten to twelve feet from the store’s front door. Ward stated that it was almost dark outside when he arrived at the store, but the area where he parked his vehicle was “lit up.” Shortly after parking his car, Ward saw two men exit the store and start running. He recalled that both men were wearing dark clothes. According to Ward, one of the men was wearing a hat, and the other was wearing a dark, hooded sweatshirt partly over his head, and a bandana around his neck. Ward testified that the man wearing the sweatshirt was taller than the other man, had a birthmark on the left side of his face, and had “dreads” in his hair. Ward testified that the taller man, with the birthmark, looked like Williams.

¶ 8. After the two men disappeared behind the store, Ward and White got out of their vehicle and entered the store. The clerk inside was on the phone and told them that the store had just been robbed. Ward and White then left the store.

¶ 9. The police located Ward and White later that evening and asked them to come to the police station and give a statement. At the police station, officers showed Ward and White a photograph of Williams and asked them if it depicted the man they had seen at the Race Way. Ward and White answered in the affirmative. Several days later, an officer brought a photographic lineup to White’s job. White picked Williams’s picture out of the eight individuals depicted in the lineup, and she signed her name above Williams’s photograph. White testified that she did so without assistance from the officer. The State introduced into evidence the photographic lineup containing White’s signature.

¶ 10. White testified that she was certain that Williams was the person she saw leaving the store on the night of the robbery. White explained that she knew Williams through her cousin but that she had not seen him in seven or eight years. Additionally, White testified that she could not remember Williams’s name when she saw him on the night of the robbery, but she recognized him by the birthmark on the left side of his face.

¶ 11. The State also presented testimony from Grenada Police Officer Doug Evans, who assisted in the investigation of the matter. Officer Evans testified that, on the evening of the robbery, he obtained a description of one of the suspects from Ward and White at the police station. Officer Evans recalled having had prior contact with an individual fitting that description, but he was unable to remember his name. Officer Evans contacted Officer Octavious Watt and provided him with a description of the suspect. Officer Watt knew an individual who matched the description and gave Williams’s name to Officer Evans. According to Officer Evans, he then “went to the jail and pulled up pictures on the computer” and later obtained a warrant for Williams’s arrest.

¶ 12. Officer Evans and another officer drove to Williams’s home to arrest him. However, as Officer Evans got out of the vehicle, he saw Williams and another individual running away. Other officers apprehended Williams approximately twenty minutes later. Officer Evans testified that when he asked Williams why he ran, Williams said that he “didn’t want to get caught.”

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Identification Evidence

¶ 14. Williams argues that the circuit court erred in denying his pretrial motion to suppress all pretrial identifications. Specifically, Williams maintains that the photographic lineup was impermissibly suggestive because his photograph clearly differed from the other individuals pictured in the lineup and that White’s and Ward’s in-court identifications were tainted by their initial identification of Williams by way of a single photograph.

1115. Our standard of review for a circuit court’s decision regarding pretrial identification is “whether or not substantial credible evidence supports the [circuit] court’s findings that, considering the totality of the circumstances, [the] in-court[-]identification testimony was not im-permissibly tainted.” Roche v. State, 913 So.2d 306, 310 (¶ 11) (Miss.2005) (quoting Ellis v. State, 667 So.2d 599, 605 (Miss.1995)). The circuit court’s decision generally will not be disturbed when it is supported by substantial, credible evidence supporting it. Id.

¶ 16. The Mississippi Supreme Court has held:

Only pretrial identifications which are suggestive, without necessity for conducting them in such a manner, are proscribed. A lineup or series of photographs in which the accused, when compared with the others, is conspicuously singled out in some manner from the others, either from appearance or statements by an officer, is impermissibly suggestive.
An impermissibly suggestive pretrial identification^ however,] does not preclude in-court identification by an eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances surrounding it (2) the identification was so impermis-sibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.

York v. State, 413 So.2d 1372, 1383 (Miss.1982) (internal citations and footnotes omitted). While, our supreme court has held that an initial identification by means of a single photograph is impermissibly suggestive, the inquiry does not end there. Christmas v. State, 10 So.3d 413, 419 (¶¶ 24-25) (Miss.2009). We must then “determine whether the identification was nonetheless reliable” after considering the Biggers factors. Id. at 419 (¶25) (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). The factors include: “the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Id. (quoting Roche, 913 So.2d at 311 (¶ 14)).

¶ 17. Williams’s motion to suppress claimed that he was “conspicuously singled out” in the photographic lineup used by law-enforcement officers. Williams explained that the lineup contained eight photographs, only four of which “could possibly fit” his general description. According to Williams’s motion, of these four photographs, only Williams’s photograph depicted an individual with his particular hair style and no facial hair.

¶ 18. Review of the photographic lineup shows that three other individuals had hairstyles similar to Williams’s, though in varying lengths. Additionally, even though Williams claims that no one else depicted in the lineup had facial hair similar to his, three other individuals had facial hair similar to Williams’s, and it is unclear from Williams’s photograph whether he had facial hair or not. Based on our review of the photographic lineup, Williams was not conspicuously singled out. Furthermore, the circuit court noted that both witnesses claimed to have recognized Williams by his birthmark, which was not clearly depicted in his photograph.

¶ 19. Williams also argues that Ward’s and White’s in-court identifications were tainted by their initial identifications of Williams by way of a single photograph. Our supreme court has consistently held that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup has been widely condemned.” Christmas, 10 So.Bd at 419 (¶ 22) (quoting Roche, 913 So.2d at 310-11 (¶ 12)). In Christmas, police officers showed a single photograph of Chancellor Christmas to a witness who was also a co-defendant. Id. at 418 (¶ 19). The witness identified Christmas as “the man with the gun” at the scene of the crime. Id. Our supreme court held that while the initial identification of Christmas was impermissibly suggestive, the identification was nonetheless reliable based on the Biggers factors. Id. at 420 (¶ 29).

¶20. Even though the lapse of time between the crime and the identification of Christmas as the suspect and the accuracy of the witness’s prior description weighed in Christmas’s favor, the additional Big-gers factors weighed in favor of admitting the identification testimony. Id. at 419 (¶ 27). The Court held that the witness “had ample opportunity to view [Christmas]” because he was “within only a few feet of [Christmas] for a significant period of time.” Id. at (¶ 28). Additionally, the witness’s testimony did not indicate hesitation when identifying Christmas as the suspect. Id.

¶ 21. In this case, both Ward and White testified at the suppression hearing that they identified Williams from a single photograph shown to them by police on the night of the robbery. The circuit court found that, while Ward’s and White’s initial identifications by way of a single photograph were impermissibly suggestive, their identifications of Williams were nonetheless reliable based on the Biggers factors. We agree.

¶22. Ward and. White testified that while they only saw Williams for a brief moment as he exited the Race Way, the area was well lit and both Ward and White were able to get a good look at his face. Additionally, both Ward and White claimed to have recognized Williams from previous encounters. While White stated with certainty that Williams was the man that she saw leaving the Race Way, Ward went only so far as to say that the man looked like Williams. However, “[a] witness does not have to be positive in his identification for his testimony to be competent before a jury.” York, 413 So.2d at 1373 n. 2 (citing Little v. State, 357 So.2d 379, 383 (Ala.Crim.App.1978)). Ward’s and White’s descriptions of Williams’s physical characteristics provided a degree of accuracy that permitted the authorities to find a suspect with the same characteristics within a few hours of the robbery. Finally, White identified Williams in a photographic lineup a few days after the robbery.

¶ 23. Based on the Biggers factors, we find that substantial, credible evidence exists to support the circuit court’s admission of the identification evidence at trial. This assignment of error is without merit.

2. Admission of 101(b) Evidence

¶ 24. Williams argues that Officer Evans’s testimony ran afoul of Mississippi Rule of Evidence 404(b). Williams contends that Officer Evans’s testimony—that he was familiar with Williams and had obtained a photograph of him from the “jail’s computer”—prejudiced the jury. Williams acknowledges that he did not object to this testimony at trial.

¶ 25. As our supreme court has stated many times, “[a]ny claim is waived for failure to raise a contemporaneous objection.” Wells v. State, 903 So.2d 739, 742 (¶ 6) (Miss.2005) (citing Ballenger v. State, 667 So.2d 1242, 1272 (Miss.1995)). Because Williams failed to object to Officer Evans’s testimony at trial, this issue is procedurally barred.

¶ 26. Procedural bar notwithstanding, the circuit court did not err in admitting Officer Evans’s testimony. This Court has previously considered this issue in Brooks v. State, 788 So.2d 794 (Miss.Ct.App.2001). In Brooks, Lennis Brooks argued that the circuit court should have granted his motion for a mistrial following Officer Bryan Bailey’s testimony that he “went into our jail photos and pulled up a photo of Brooks.” Id. at 796 (¶ 8). Brooks argued that such testimony constituted evidence of his prior bad acts. Id.

¶ 27. This Court agreed with the circuit court’s determination that the reference to the “jail photo” was used to identify Brooks, not to prove his character. Id. at 796-97 (¶ 9). Accordingly, the testimony fell within the proof-of-identify exception to Rule 404(b). Id. at 797 (¶ 11). Finally, this Court determined that the circuit court properly found that the probative value of Officer Bailey’s statement outweighed the statement’s potentially prejudicial impact. Id. at 798 (¶ 18).

¶ 28. In this case, Officer Evans’s testimony was substantially similar to Officer Bailey’s testimony in Brooks. Officer Evans referenced Williams’s “jail photo” only to describe how he identified Williams as the robbery suspect. Thus, Officer Evans’s testimony did not violate Rule 404(b).

¶ 29. However, even if evidence of prior bad acts falls within a 404(b) exception, its prejudicial effect must still be measured against its probative value to determine admissibility under Rule 403 of the Mississippi Rules of Evidence. Brooks, 788 So.2d at 798 (¶ 13). Based on our holding in Brooks, we find that the probative value of Officer Evans’s testimony outweighed its potential prejudicial effect—especially where Williams’s “jail photo” was not introduced into evidence, was not repeatedly referred to, and was used only to identify Williams. Id. This issue is without merit.

3. Flight Jury Instruction

¶ 30. Williams argues that the circuit court erred in giving a flight instruction. The State submitted jury instruction S-5, which reads:

The Court instructs the [j]ury that flight is a circumstance from which guilty knowledge and fear may be inferred. If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Markeith Williams, did flee from the law[-]enforcement officers, then the flight of the Defendant is to be considered with all other evidence in this case.
You will determine from all of the facts whether the flight was from a conscious sense of guilt or whether other things caused it, and give it such weight as you think it is entitled to in determining the guilt or innocence of Markeith Williams.

¶ 31. At the outset, we note that Williams did not object to this instruction at trial; therefore, he is procedurally barred from raising this issue on appeal. Goff v. State, 14 So.3d 625, 655 (¶ 118) (Miss.2005).

¶ 32. Procedural bar notwithstanding, we find no error in giving a flight instruction. Generally, “flight is admissible as evidence of consciousness of guilt.” Fuselier v. State, 702 So.2d 388, 390 (¶ 4) (Miss.1997) (citing Williams v. State, 667 So.2d 15, 23 (Miss.1996) (overruled on other grounds)). However, a flight instruction “is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge.” Id. (quoting Reynolds v. State, 658 So.2d 852, 856 (Miss.1995)). “Evidence of flight is inad-missable where there is an independent reason for [the] flight known by the court which cannot be explained to the jury because of its prejudicial effect upon the defendant.” Id. (quoting Williams, 667 So.2d at 23).

¶ 33. In Anderson v. State, 1 So.3d 905, 916 (¶ 34) (Miss.Ct.App.2008), this Court found no error with the circuit court’s decision to give a flight instruction. In Anderson, the police received a confidential-informant tip that Reginald Anderson had fled to Tennessee after committing aggravated assault. Id. at 909 (¶ 4). When Anderson returned to Mississippi, and the police went to arrest him, they found him hiding under a house. Id. Anderson stated that he was hiding underneath the house because he was “afraid of going back to jail.” Id. at 916 (¶ 33). We reasoned:

Anderson’s flight was never fully explained .... Anderson has failed to provide an independent explanation for why he was hiding under his house on the day of his arrest. Anderson attempts to argue on appeal that he was hiding because he feared he was being “set up.” However, there is nothing in the record to support this argument. The only reason that Anderson gave at trial for hiding under the house was that he was a convicted felon and afraid of going back to jail.

Id.

¶ 34. Here, Officer Evans testified that Williams stated that he ran from the police on the evening of October 7 because he “didn’t want to get caught.” The statement does not constitute a sufficient independent reason for fleeing and is probative of guilty knowledge. As such, the circuit court did not err in giving a flight instruction. This assignment of error is without merit.

Jp. Ineffective Assistance of Counsel

¶ 35. Williams argues that his trial counsel was ineffective for failing to renew objections to Ward’s, White’s, and Arora’s pretrial identifications of him, for failing to object to Officer Evans’s testimony, and for failing to object to the flight instruction. Generally, we do not consider claims of ineffective assistance of counsel on direct appeal unless there is sufficient evidence within the record to evaluate the claim. Harden v. State, 59 So.3d 594, 603-04 (¶ 21) (Miss.2011). However, we find such evidence in the record before us.

¶ 36. To succeed in a challenge to the effectiveness of counsel, Williams must show that his “counsel’s performance was deficient, and ... the deficient performance prejudiced [his defense] such that, but for counsel’s deficient performance, the result would have been different.” Id. at 603 (¶ 20) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Williams must overcome the “strong but rebuttable presumption ... that counsel’s decisions constituted reasonable trial strategy within ‘the wide range of reasonable professional assistance.’” Id. (quoting Strickland, 466 U.S. at 688,104 S.Ct. 2052).

A.Failure to Object to Identification Evidence

¶ 37. Williams’s trial counsel raised an objection at the suppression hearing because Ward and White identified Williams from a single photograph. However, the circuit court found that based on the Biggers factors, the identification procedures were not so impermissi-bly suggestive as to make the identification evidence unreliable. Consequently, there was no reason for trial counsel to make an additional objection to the identification evidence at trial. Arora’s pretrial identification of Williams via the photographic lineup was not entered into evidence, and the State did not seek an in-court identification of Williams from Arora. Thus, because the State did not admit any identification evidence through Arora’s testimony, there was no reason for Williams’s trial counsel to object. Accordingly, this issue is without merit.

B.Failure to Object to Officer Evans’s Testimony

¶ 38. Based on our previous discussion and conclusion that Officer Evans’s testimony was admissible and not prejudicial, Williams’s claim that his trial counsel was ineffective for failing to object to said testimony is without merit.

C.Failure to Object to Jury Instruction on Flight

¶ 39. Based on our previous discussion and conclusion that the circuit court did not err in giving the flight instruction to the jury, Williams’s claim that his trial counsel was ineffective for failing to object to the instruction is without merit.

5. Cumulative Error

¶40. Williams argues that, assuming this Court does not find any individual error sufficiently egregious to require reversal, the cumulation of errors in this case is cause for reversal. Having found no individual errors in this case, there can be no cumulative error. Osborne v. State, 54 So.3d 841, 848 (¶ 27) (Miss.2011). Thus, this issue is without merit.

¶ 41. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FORTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWENTY-FIVE YEARS TO SERVE, FIFTEEN YEARS SUSPENDED, AND FIFTEEN YEARS OF POST-RELEASE SUPERVISION, WITH FIVE YEARS SUPERVISED AND TEN YEARS UNSUPERVISED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR.

      . Rule 404(b) states:
      Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.


author: ISHEE, J.,

text:
    Roger A. CARROLL, Appellant v. Anna F. CARROLL, Appellee.
    No. 2010-CA-00823-COA.
    Court of Appeals of Mississippi.
    Feb. 28, 2012.
    Rehearing Denied June 12, 2012.
    Certiorari Denied Sept. 27, 2012.

      Ralph Stewart Guernsey, attorney for appellant.
    Carter Dobbs, Jr., attorney for appellee.
   ISHEE, J.,

for the Court:

¶ 1. This is Roger Carroll’s second appeal regarding his divorce; he again argues that the chancery court erred in its assessment of alimony and division of the marital property. He asks this Court to review the chancellor’s most recent judgment, arising on remand from this Court, wherein the chancellor ordered Roger to pay alimony to his ex-wife, Anna Carroll. Roger now challenges the equitable distribution of the marital property, and asserts that the alimony award is excessive and is impossible for him to pay. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Roger and Anna Carroll were married in 1988. They had one child during the marriage, Jennifer Lynn, who is now an emancipated adult. After accusing Roger of having an affair in 2003, the couple separated, and Anna filed for divorce shortly thereafter. Roger eventually married the woman with whom he had an affair and they have at least one child together.

¶ 3. At the time of the separation, Roger owned a sand and gravel business that he purchased from his parents for approximately $450,000. He sold the business in 2004, two months before the trial on his divorce from Anna, for $500,000. When he sold the business, Roger paid his mother, Verna Mae Carroll, $191,772.29 to satisfy a promissory note Verna Mae had extended to him to purchase the business.

¶ 4. Thereafter, Anna filed suit in Monroe County Chancery Court against Verna Mae to set aside the $191,772.29 payment as fraudulent, claiming the money was marital property and subject to division by the chancery court during the divorce proceedings. The chancery court found $153,274.65 of the sum paid to Verna Mae was fraudulently conveyed, and ordered her to pay the money to the chancery court so that it could consider the money for the division of marital property. Verna Mae appealed to this Court, and we reversed and rendered, ordering that the payment for the sale of the business was not subject to division as marital property.

¶ 5. The same month that Roger moved out of the marital home in 2003, he purchased a helicopter for $85,000, which later crashed and was destroyed. With no insurance on the helicopter, Roger was forced to pay the bank loan on the helicopter for $60,000 through a certificate of deposit.

¶ 6. Many legal entanglements ensued between the couple and their attorneys before the trial on the merits of the divorce. One issue involved Roger being incarcerated in contempt of court for failing to make certain payments to Anna as previously ordered by the chancery court. After firing one attorney and a second attorney withdrawing due to an ethical conflict, Roger represented himself pro se at trial in 2005.

¶ 7. At trial, evidence was introduced to show that Roger’s income from the sand and gravel business averaged $18,575.78 per month, which was paid to him by the corporation for his personal living expenses. He also received an additional income of $9,498.75 from unreported cash sales. Roger offered no proof to refute the evidence or to demonstrate his income potential or indebtedness. Roger also acknowledged at trial that his “business was doing okay.” The principal assets of the parties consisted of the marital home and its contents, and the sand and gravel business owned by Roger.

¶ 8. After a trial on the merits, the chancellor granted the divorce and issued the final decree for divorce on February 15, 2005. Roger purged himself of his contempt the next day by paying the required sums to Anna, and he was released from custody. In its order, the chancery court ordered:

1.Anna to have the exclusive use and possession of the marital home and all of the furniture and appliances in the home;
2. Legal title of the marital home divested from 100% in Roger to 50% in Roger and 50% in Anna;
3. Roger to pay all indebtedness secured by the marital home, including both the first and second mortgages;
4. Anna awarded one-half of the net proceeds of the sale of the sand and gravel business previously owned by Roger should the sale be set aside by the Court in another action;
5. Anna’s 2001 Nissan Xterra automobile to be Anna’s separate property;
6. Roger to pay alimony each month in the amount of $4,000;
7. Roger to pay $500 per month in child support;
8. Roger to pay all school tuition and expenses for Jennifer’s college;
9. Roger to pay Anna $42,890 for her attorney’s fees, court costs, and expenses.

Roger filed a motion to amend the decree for divorce and for a new trial and a motion to stay, all of which was denied. However, the chancery court did clarify its previous order regarding title to the marital home, and allowed Roger the right to sell the home.

¶ 9. In May 2005, Anna filed a complaint for contempt of court against Roger, alleging that he had not paid all of the alimony payments as ordered by the chancery court, nor the attorney’s fees and mortgage payments on the marital home. The chancery court considered the issues during a motion hearing, and a judgment was rendered on August 24, 2005. The chancery court found Roger delinquent in the amount of $8,235.10 in alimony and mortgage payments. Shortly thereafter, Roger paid the money to Anna and again purged himself of the contempt of court for failure to pay.

¶ 10. However, Anna filed another contempt citation a few months later in October 2005. Therein, Anna asserted Roger had failed to pay child support and alimony. After a hearing, the chancery court found Roger in contempt of court and ordered him to pay $16,000 for past due alimony payments, $20,000 for Anna’s previous attorney’s fees, and $1,000 for Anna’s current attorney’s fees. Roger’s incarceration for this contempt was stayed for a period of ten days.

¶ 11. During the stay, Roger filed a notice of appeal, challenging the divorce decree, as well as the order denying his motion to amend the divorce decree and the previous order of contempt in August 2005. This Court affirmed the chancery court’s judgment in part and reversed and remanded in part, on the issue of the chancellor’s award of alimony, ordering the chancery court to conduct a proper Armstrong analysis regarding alimony. Carroll v. Carroll, 976 So.2d 880, 888 (¶ 18) (Miss.Ct.App.2007).

¶ 12. After conducting a hearing, the chancery court issued a bench order requiring Roger to pay Anna $2,749.04 per month as periodic alimony, and to pay her lump-sum alimony in the amount of the first and second mortgages secured by the marital home. The chancellor also imposed a lien on Roger’s property to secure payment of the alimony. Roger appeals this judgment.

STANDARD OF REVIEW

¶ 13. We will not disturb a chancellor’s findings of fact unless they are found to be “manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” Id. at 885 (¶ 8) (citations omitted). We review the interpretation and application of law de novo. Id.

DISCUSSION

I. Armstrong Analysis

¶ 14. Roger first argues that the chancery court abused its discretion in finding that he has the ability to earn in excess of $13,000 per month. He asserts that on remand, the chancellor failed to consider any new evidence regarding Roger’s economic status, and improperly relied on the trial evidence, which showed that Roger had substantial assets and income. He also claims that the chancellor conducted an analysis of the alimony award using Davis v. Davis, 832 So.2d 492 (Miss.2002), instead of using Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993).

¶ 15. Our review of the record shows the chancellor noted that he would allow amendments as necessary to consider the parties’ financial situation on the date of the remand hearing, per Rainer v. Rainer, 393 So.2d 475 (Miss.1981). Roger’s amended 8.05 financial statement claims that he earns $0 in income each month, but has more than $3,000 in expenses. Yet it is clear that Roger earned substantial income in the past, and that he possessed substantial assets, which were considered during the division of the marital property. The record shows Roger’s income from his sand and gravel business totaled $13,575.78 per month. He also earned $9,498.74 per month in “off the books” income. In addition, the same month Roger left Anna, he purchased a helicopter for $85,000.

¶ 16. The record also shows Roger purchased the sand and gravel business from his mother for approximately $450,000, with a down payment of $150,000 and monthly payments of $3,483.25 for ten years. Although Verna Mae testified at trial that Roger was a mechanic, Anna presented evidence to demonstrate that Roger had earning potential significantly greater than what a mechanic would earn approximately each year. Roger argues on appeal that the recession from 2008 to the present has negatively affected his earning capacity. Again, he claims that he has no income, except what he makes by operating a track hoe machine.

¶ 17. The record reflects that the chancellor did, in fact, consider Roger’s amended 8.05 financial statement, in which Roger claimed to have $0 in income each month. However, the chancellor stated that he found it “incredible” that Roger would claim that he received no income each month, yet still had considerable living expenses.

¶ 18. While the chancellor was not required to do so on remand, he did conduct a Ferguson analysis concerning the division of the marital property to support his final judgment. Ferguson v. Ferguson, 639 So.2d 921 (Miss.1994). The chancellor also conducted an analysis regarding alimony, per the mandate of the remand.

¶ 19. On remand, this Court ordered the chancellor to conduct a proper Armstrong analysis “for a determination of whether permanent period alimony is justified.” Carroll, 976 So.2d at 888 (¶ 18). The Mississippi Supreme Court has held that the following factors are to be considered by the chancellor in arriving at findings and entering judgment for alimony:

1. The income and expenses of the parties;
2. The health and earning capacities of the parties;
3. The needs of each party;
4. The obligations and assets of each party;
5. The length of the marriage;
6. The presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care;
7. The age of the parties;
8. The standard of living of the parties, both during the marriage and at the time of the support determination;
9. The tax consequences of the spousal support order;
10. Fault or misconduct;
11. Wasteful dissipation of assets by either party; or,
12. Any other factor deemed by the court to be ‘just and equitable’ in connection with the setting of spousal support.

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

¶ 20. In determining whether to make an award of periodic alimony, the following factors must be considered:

1. [T]he health of the husband and his earning capacity;
2. [T]he health of the wife and her earning capacity;
3. [T]he entire sources of income and expenses of both parties;
4. [T]he reasonable needs of the wife;
5. [T]he reasonable needs of the child;
6. [T]he necessary living expenses of the husband;
7. [T]he estimated amount of income taxes the respective parties must pay on their incomes;
8. [T]he fact that the wife has the free use of the home, furnishings and automobile;
9. [T]he length of the marriage;
10. [T]he presence or absence of minor children in the home;
11. [T]he standard of living of the parties, both during the marriage and at the time of the support determination;
12. [Fjault or misconduct;
13. [Wasteful dissipation of assets;
14. [T]he obligations and assets of each party;
15. [T]he age of the parties;
16. [T]he tax consequences of the spousal support order; and
17. [S]uch other facts and circumstances bearing on the subject that might be shown by the evidence.

Davis v. Davis, 882 So.2d 492, 497 (¶ 19) (Miss.2002).

¶ 21. In his bench ruling on March 31, 2010, the chancellor gave a detailed factual account of his finding for alimony. Although the chancellor repeatedly refers to the Davis factors when conducting his analysis, he used the factors from both Davis and Armstrong. The chancellor’s analysis includes every factor required by both cases. Following the Armstrong factors outlined for the award of alimony, the chancellor found that:

(1) Roger has the ability to earn in excess of $13,000 per month. At one point, he also received over $9,000 per month in “off the books” income. In contrast, Anna works a maximum of thirty-two hours per week at a wage of $8.75 per hour. Additionally, Roger, in conjunction with his new bride, bought a $160,000 home. While Roger does not own the home, he has a lease purchase with the right to purchase, the house still requires a $1,200 payment each month.
(2) Both parties are in good health. As noted above, Roger’s past earnings have far exceeded Anna’s earnings. In addition, Anna has no specialized training or education. Therefore, the potential to increase her income is limited.
(3) Anna is favored with regard to her needs due to her age and skill set. In addition, the chancellor relied on Anna’s Rule 8.05 financial statement, which listed $2,321 as her combined monthly expenses.
(4) The parties have two debts secured by the marital home. Although Roger alleged he had additional indebtedness, no proof of this was elicited.
(5) The marriage lasted twenty-one years.
(6) There are no minor children in the home.
(7) Anna is forty-five years old and Roger is forty-nine years old.
(8) Anna does not have the earning capabilities to maintain the standard of living she enjoyed during the marriage.
(9) The alimony is deductible for tax purposes by Roger and considered taxable income to Anna. There are no other tax consequences of the alimony.
(10) This divorce was awarded on the basis of adultery. The chancellor clearly found the demise of the relationship was caused by Roger’s adultery.
(11) Roger sold the sand and gravel business for $500,000, but testified he could have possibly received a higher price. In addition, he did not consult Anna or the chancery court before selling the business. Roger also bought a helicopter during the marriage. The helicopter cost $85,000, was secured by a $60,000 certificate of deposit, and was not covered by insurance. Roger subsequently crashed the helicopter and was forced to pay the bank loan. It was also noted that in August 2002, Roger spent $11,412 on a helicopter engine.
(12) Roger has allowed both mortgages on the marital home to default. In addition, he has paid very little support to Anna as required by the chancery court.

¶ 22. The chancellor conducted a sufficient analysis of each of the Armstrong factors. We do not find that the chancellor was manifestly wrong or clearly erroneous in his award of periodic alimony. This issue is without merit.

II. Impossible Financial Dilemma

¶ 23. Roger argues the amount of alimony awarded creates an impossible financial dilemma. The facts of this case indicate Roger has the potential to earn in excess of $13,000 per month. Roger has offered no proof to refute the evidence or to demonstrate his income potential or indebtedness. Roger claims in his amended 8.05 financial statement that he has no income. However, he still has monthly expenses in excess of $3,000. It is improbable that Roger earns no income yet still has considerable living expenses. In addition, shortly before the divorce, Roger owned a sand and gravel business worth $500,000. He also purchased an $85,000 helicopter and an $11,412 helicopter engine. Additional evidence shows that Roger has been capable of paying the required sums to Anna when faced with contempt charges. We do not find that the chancellor was manifestly wrong or clearly erroneous in his decision to award the support. This issue is without merit.

III. Mortgage Costs

¶ 24. Roger argues the award of lump-sum alimony in addition to periodic alimony constitutes double recovery. Double recovery is a doctrine that prevents unjust enrichment by prohibiting recovery for the same damages multiple times. Medlin v. Hazlehurst Emergency Physicians, 889 So.2d 496, 499 (¶ 15) (Miss.2004) (citing Medley v. Webb, 288 So.2d 846, 848 (Miss.1974)). The theory of double recovery applies to property settlements. Ory v. Ory, 936 So.2d 405, 412 (¶ 19) (Miss.Ct.App.2006) (refusing to give double credit for contributions to the marital home).

¶ 25. In this case, the award of periodic and lump-sum alimony does not constitute double recovery. The lump-sum payment of $89,375 covers the two mortgages secured by the marital home. The chaneel-lor ordered the payment to be made within sixty days of March 31, 2010. Roger argues the award of lump-sum alimony constitutes double recovery because the payments of $2,749.04 per month in period alimony also includes the mortgage payments for the marital home. However, the chancellor clearly outlined in his ruling that once the lump-sum amount was paid, Roger could petition the chancery court for a reduction in periodic alimony payments. After the mortgage debt is paid, Anna’s periodic alimony amount will no longer include payments for the mortgage. The chancellor even credited Roger for past alimony payments totaling $17,465, which reduced the amount of his lump-sum payment. We find the alimony award does not constitute double recovery. This issue is without merit.

IV.Attorney’s Fees

¶ 26. Anna requests that this Court order Roger to pay her attorney’s fees and expenses on this appeal. When allowed, this Court has generally granted attorney’s fees in the amount of one-half of what was awarded in the chancery court. Lauro v. Lauro, 924 So.2d 584, 592 (¶ 33) (Miss.Ct.App.2006) (citing Monroe v. Monroe, 745 So.2d 249, 253 (¶ 17) (Miss.1999)). The award of attorney’s fees is based on necessity rather than entitlement. Id.

¶ 27. In the Decree for Divorce on February 10, 2005, the chancery court found Anna was unable to pay her attorney’s fees and awarded her $41,587.50. We grant Anna’s motion for attorney’s fees on appeal, but only in the amount of $9,750.

¶ 28. THE JUDGMENT OF THE MONROE COUNTY CHANCERY COURT IS AFFIRMED. THE APPEL-LEE IS AWARDED ATTORNEY’S FEES ON APPEAL IN THE AMOUNT OF $9,750. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING and GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR. FAIR, J., NOT PARTICIPATING.