author: BARNES, J.,

text:
    In the Matter of the Dissolution of Marriage: Frank A. SEGREE, III, Appellant v. Susan B. SEGREE, Appellee.
    No. 2009-CA-00757-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      R. Louis Field, Vicksburg, attorney for appellant.
    Mark W. Prewitt, Vicksburg, attorney for appellee.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   BARNES, J.,

for the Court:

¶ 1. Frank Segree III and Susan Segree were divorced on September 15, 2008. In the divorce action, Susan was awarded certain personal property, the exclusive use and possession of the marital home, child support, and periodic permanent alimony. Frank appeals, claiming that the chancellor erred in her distribution of the marital assets and her award of child support and periodic permanent alimony to Susan. We affirm the chancery court’s judgment ordering Frank to pay one daughter’s medical insurance and expenses and both daughters’ credit cards, and we affirm the award of attorney’s fees to Susan. However, as the chancellor’s award of marital assets was not supported by specific findings of fact, we reverse the chancellor’s judgment as it relates to the non-stipulated marital assets, alimony, and child support, and we remand the case for further proceedings in accordance with this opinion.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Frank and Susan were married on June 4, 1983, in Franklin County, Florida. The couple moved to Vicksburg, Mississippi, where they lived for approximately sixteen years. Three children were born of the marriage: Robert Segree, who is legally emancipated, and twin daughters, Rebecca and Jacquelyn Segree, whose date of birth is June 6, 1989. All three children still live in the marital home.

¶ 3. The couple had marital issues during their last years of marriage that resulted in both parties filing divorce complaints, which were later withdrawn. Finally, Frank told Susan that he was unhappy in the marriage, and the couple separated on June 12, 2007. Later that same month, Frank began dating another woman, Yolanda Davidson, and he occasionally stayed with Davidson on weekends when he was home from working in Memphis. Susan, who was forty-four years old at the time of the separation, is a high-school graduate, in good health, and works full time for Citi Financial. Frank, who was forty-one years old at the time of separation, has a G.E.D. and is a master pilot employed by the United States Corp of Engineers.

¶4. On July 17, 2007, Susan filed a complaint for divorce on the grounds of adultery and/or habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. A temporary order was entered by the chancery court on November 14, 2007, requiring Frank to pay all debts normally paid by him and $100 per month in child support. On June 16, 2008, Susan filed an amended complaint for divorce, with permission from the chancery court, which included a request for separate maintenance. A hearing on the divorce complaint was held on July 1, 2008.

¶5. At the hearing, the parties stipulated that Frank would receive two automobiles — a 2005 Mercury and a 2007 Dodge, a motorcycle, and a boat plus a motor. The parties also stipulated to the value of the marital home, the value of the couple’s retirement accounts, and that Susan would receive the household furnishings and lawnmower. The chancery court entered its final judgment on September 15, 2008, granting Susan a divorce on the ground of adultery. Frank was awarded the stipulated items of personal property, along with a travel trailer. Frank was also ordered to continue to pay Rebecca’s and Jacquelyn’s individual credit-card debt “in the amounts and manner he has previously provided,” and to pay $84,200 in outstanding debt on the marital home from his thrift savings plan (TSP). The judgment also awarded Susan: (1) permanent care and custody of her minor children, Rebecca and Jacquelyn, (2) ability to claim both minor children for tax purposes, (3) monthly child support of $825 for Rebecca, (4) use and ownership of the cemetery lots, (5) one-half of Frank’s retirement account (total value of $138,000), (6) her retirement account (total value of $20,868), (7) sole use and ownership of the marital home (valued at $100,000), (8) one-half of the remainder of Frank’s TSP, (9) $500 in monthly permanent periodic alimony (to commence upon cessation of child-support payments), and (10) $4,500 in attorney’s fees. Susan also received various personalty such as a late-model sedan and a Kubota tractor.

¶ 6. Susan and Frank each filed motions for reconsideration. Susan’s motion noted issues with federal compliance as it related to Frank’s TSP and complained that the court’s judgment failed to address medical insurance and payment of medical bills for the minor child or children. Frank’s motion argued that the chancery court’s division of the marital assets, and awards of child support, alimony, and attorney’s fees, were erroneous. On November 24, 2008, the chancery court, on its own motion, amended its judgment and ordered Frank to provide medical insurance and costs for Rebecca, awarded a portable generator to Frank, and awarded Susan ownership of certain tractor tires. On May 1, 2009, the chancellor entered an order overruling Frank’s and Susan’s motions for reconsideration. Frank timely appeals the denial of his motion.

¶ 7. We affirm the chancery court’s order requiring Frank to pay Rebecca’s medical insurance and expenses and both daughters’ credit-card debts, and we affirm the award of attorney’s fees to Susan. However, we find that the chancellor failed to provide the appropriate Ferguson test in the award of marital assets and reverse the judgment as it pertains to the equitable distribution of marital assets, the award of permanent periodic alimony, and the award of child support for Rebecca and remand for further proceedings consistent with this opinion.

STANDARD OF REVIEW

¶ 8. This Court “will not disturb a chancellor’s judgment when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Benal v. Benal, 22 So.3d 369, 372 (¶4) (Miss.Ct.App.2009) (quoting Chapel v. Chapel, 876 So.2d 290, 292 (¶ 8) (Miss.2004)). If the chancellor’s findings are supported by substantial evidence, then we will affirm. Minter v. Minter, 29 So.3d 840, 850 (¶ 36) (Miss.Ct. App.2009) (citation omitted).

I. Whether the chancery court erred in its allocation and division of marital assets and its award of permanent alimony and child support.

A. Marital Assets

¶ 9. Frank contends that the chancellor’s allocation of the marital assets, specifically the award of the marital home, was in error. When determining the equitable distribution of marital assets, a chancery court must review the “well-known factors established by Ferguson v. Ferguson, 689 So.2d 921, 928 (Miss.1994).” Smith v. Smith, 994 So.2d 882, 885 (¶ 9) (Miss.Ct.App.2008). Those factors are:

(1) contribution to the accumulation of property, (2) prior disposition of or distribution of assets, (3) market and emotional value of assets subject to distribution, (4) the value of non-marital assets, (5) taxes and other economic consequences of the proposed distribution, (6) the extent to which property division can eliminate the need for alimony, (7) the needs of the parties, and (8) any other equitable factors.

Smith, 994 So.2d at 885-86 (¶ 9). Here, although it does appear that the chancellor’s judgment awarded Susan a significantly greater portion of the marital assets, this is not necessarily an abuse of discretion. “[E]quitable distribution does not require equal distribution.” Morris v. Morris, 5 So.3d 476, 492 (¶39) (Miss.Ct. App.2008) (citing Bresnahan v. Bresnahan, 818 So.2d 1113, 1122 (¶11) (Miss.2002)).

¶ 10. However, “[t]he failure to consider all applicable Ferguson factors is error and mandates reversal.” Lowrey v. Lowrey, 25 So.3d 274, 286 (¶ 29) (Miss.2009). If the chancellor fails to provide “specific findings of fact and conclusions of law” in regard to the Ferguson factors, then the case should be reversed and remanded for such findings of fact. Johnson v. Johnson, 823 So.2d 1156, 1161 (¶ 12) (Miss.2002); see also Heigle v. Heigle, 771 So.2d 341, 348 (¶ 21) (Miss.2000) (reversed and remanded for further findings as “the chancellor made no conclusions of law to support the division of the marital estate.”); Baker v. Baker, 807 So.2d 476, 480 (¶ 13) (Miss.Ct.App.2001) (reversed and remanded as chancellor’s conclusory statements regarding contributions to the marriage, and the statement that he used the Ferguson factors, were not sufficient for the appellate court to understand factors considered in the chancellor’s determination).

¶ 11. In the chancellor’s final judgment, there are no findings of fact regarding the distribution of the non-stipulated marital assets. The court merely stated that it had “considered the testimony of witnesses, exhibits, and the law applicable thereto[.]” The chancellor does not even refer to Ferguson and provides no analysis or reasoning for the distribution and awards set forth in the judgment. A chancery court’s failure “to specifically address these issues on the record deprives an appellate court of the information necessary to undertake a meaningful review of the chancellor’s decision to determine whether an abuse of discretion has occurred that would require reversal.” Baker, 807 So.2d at 479 (¶ 12) (citing Kilpatrick v. Kilpatrick, 732 So.2d 876, 881 (¶ 19) (Miss.1999)).

¶ 12. Susan contends that both parties “stipulated as to all marital assets and their value”; therefore, a Ferguson analysis was not necessary. However, the parties merely stipulated as to majority of the personal property and the values of the marital home and retirement accounts. They did not stipulate as to the equitable distribution of the marital home, retirement accounts, or the tractor. The chan-eery court still had a duty to examine the marital property at issue and make a factual determination, using Ferguson, on the equitable distribution of those assets. This she failed to do on the record. Accordingly, as it pertains to the distribution of the marital assets, we must reverse the chancellor’s judgment and remand the case for specific findings of fact under Ferguson.

B. Alimony

¶ 18. The chancery court awarded Susan $500 in monthly periodic permanent alimony, which was to commence only upon the cessation of child support to Rebecca upon her emancipation. “Generally, permanent alimony should be considered if one spouse is left with a deficit after the division of marital assets.” Elliott v. Elliott, 11 So.3d 784, 786 (¶8) (Miss.Ct.App.2009). In assessing the fairness of the alimony award, we must consider the overall result “rather than a separate assessment of the different issues.” Baker, 807 So.2d at 481 (¶ 17) (citing Turpin v. Turpin, 699 So.2d 560, 564-65 (¶ 16) (Miss. 1997)). “Alimony and equitable distribution are distinct concepts, but together they command the entire field of financial settlement of divorce. Therefore, where one expands, the other must recede.” Daniels v. Daniels, 950 So.2d 1044, 1047 (¶ 10) (Miss.Ct.App.2007) (quoting Lauro v. Lauro, 847 So.2d 843, 849 (¶ 13) (Miss.2003)). The purpose of “equitable distribution is to alleviate the need for alimony.” Elliott, 11 So.3d at 786 (¶ 8) (citing Ferguson, 639 So.2d at 929). Thus, when a case is remanded for further consideration of the division of marital assets, this Court must also remand on the issue of alimony as the “proper distribution of the parties’ assets and debts may affect the amount of alimony ultimately awarded[.]” Fitzgerald v. Fitzgerald, 914 So.2d 193, 198 (¶¶ 26-27) (Miss.Ct.App.2005) (citing Lauro, 847 So.2d at 850 (¶ 17)). Accordingly, we must reverse and remand on this issue as well.

¶ 14. Furthermore, the chancellor failed to make specific findings of facts under Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993), in its award of periodic alimony. While this is not necessarily fatal to the consideration of an award of periodic alimony on appeal, we would recommend on remand that if the chancellor determines that periodic alimony is warranted, findings of fact should be provided to support the award. See Carroll v. Carroll, 976 So.2d 880, 888 (¶18) (Miss.Ct. App.2007) (“[w]hile an appellate court will affirm an award of alimony without a complete recitation on the record of an Armstrong analysis enunciating each factor, we must reverse if it is clear no such analysis occurred, or if the information in the record does not support a chancery court’s findings.”)

C. Child Support, Medical Insurance, Payment of Medical Bills and Credit Card Debt

¶ 15. Frank asserts that it was an abuse of discretion to order him to pay support for Rebecca, as she was the same age (nineteen years old), education level, and employment level as her sister, Jacquelyn, who was evidently considered by the chancellor to be emancipated as no child support was awarded on her behalf. Frank claims that Rebecca was employed full time and had her own car and bank account. Furthermore, neither daughter graduated from high school, and both daughters no longer attended school. There was also no testimony that either daughter was going to pursue a traditional college education.

¶ 16. “When reviewing child support awards, this Court examines the record to determine whether the chancellor’s award is supported by sufficient evidence.” Parker v. Miss. Dep’t. of Human Servs., 827 So.2d 18, 19 (¶ 3) (Miss.Ct.App.2002) (citing Powell v. Powell, 644 So.2d 269, 275 (Miss.1994)). It was undisputed that Jacquelyn had maintained a full-time job as a sales clerk for the previous year and one-half, although she was only making minimum wage. As to Rebecca’s employment status, the testimony reflects that Rebecca had two jobs: she had just started working at Klondyke’s the day prior to the hearing, making minimum wage, and she had part-time work on the weekends at the local skating rink. Susan claimed that Rebecca was not working full time at Klon-dyke’s. When questioned upon cross-examination, she stated:

A. [Rebecca] started yesterday at Klondyke’s.
Q. Full-time?
A. I don’t know that it’s full-time.
She told me that she was going to work when she was needed. I wouldn’t call that full-time.

Frank, however, refuted this testimony, claiming that Rebecca was working full time at Klondyke’s. He said that, to his knowledge, her work schedule was “six days a week from 10:30 to 6:30 every evening for fifty dollars a day.”

¶ 17. The chancellor made no conclusions or findings of fact to explain the reasoning for considering Jacquelyn emancipated and Rebecca a minor. Mississippi Code Annotated section 93-5-23 (Supp. 2006) states that the duty to support a child “terminates upon the emancipation of the child. The court may determine that emancipation has occurred pursuant to [sjection 93-11-65.” Mississippi Code Annotated section 93-ll-65(8)(a) (Supp. 2006) also states that “[t]he duty of support of a child terminates upon the emancipation of the child.” Further, the pertinent part of subsection 8(b)(i) states that “the court may determine that emancipation has occurred and no other support obligation exists when the child ... [discontinues full-time enrollment in school having attained the age of eighteen (18) years, unless the child is disabled[.]” Miss.Code Ann. § 93 — 11—65(8)(b)(i) (Supp. 2006). Prior to the 2006 amendment to this statute, the section provided that emancipation has occurred when the child “[discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years[.]” (Emphasis added). However, this prior version is not applicable to our present case as the final judgment was not entered until September 15, 2008. Thus, Frank is correct; the chancery court had the discretion to consider Rebecca emancipated, without having to consider whether she was employed full time. But, the chancellor also had the discretion to take into account that Rebecca had just starting work and was only earning minimum wage.

¶ 18. We are somewhat perplexed with this unique award of child support as it relates to the award of alimony. Susan’s alimony was to start only when the child support for Rebecca ceased, which makes us question whether a portion of the $825 monthly child support would be considered alimony. “Child support payments are for the benefit of the child, not the recipient parent.” Andres v. Andres, 22 So.3d 314, 319 (¶ 18) (Miss.Ct. App.2009) (quoting Strack v. Sticklin, 959 So.2d 1, 6 (¶ 15) (Miss.Ct.App.2006)). Yet, there is nothing in the judgment to explain the chancery court’s reasoning for structuring the awards in this manner.

¶ 19. Also, this Court must consider child support collectively, along with equitable division of marital assets and the periodic alimony. The supreme court held in Lauro, 847 So.2d at 848-49 (¶ 13), that “[a]ll property division, lump sum or periodic alimony payment, and mutual obligations for child support should be considered together.” Consequently, we reverse and remand on the issue of the child-support award.

IT 20. We find no error in the chancellor’s order for Frank to pay for Rebecca and Jacquelyn’s credit-card debt and medical expenses for Rebecca. At the hearing, upon cross-examination, Frank testified that he did not object to paying the girls’ medical insurance and expenses, stating:

Q. You intend to maintain the two girls on your medical insurance?
A. Absolutely.
Q. And you’ll pay the medical bills that are not covered? You need to answer aloud[.]
A. Yes.

Frank already had given Rebecca and Jacquelyn credit cards for their expenses since he worked out of town; the girls merely had to contact Frank and let him know approximately how much they had spent. This arrangement had been in place for approximately two years. Frank testified at the hearing that he did not mind continuing to help the girls with their expenses, stating:

Q. You’ve attributed two hundred and fifty dollars a month for both of your two girls or is that two fifty per child?
A. It’s whatever the girls need a month, Mr. Prewitt. I don’t care if it’s four thousand, if that’s what it takes.
Q. Okay. Then you acknowledge that your children still have current needs and need some kind of support or else you wouldn’t be doing it, Frank?
A. Correct. And I’ll also acknowledge that I want them to be full and gainfully employed and be productive citizens; correct.

Thus, we find that it was not an abuse of discretion for the chancellor to order Frank to pay for Rebecca’s medical expenses, medical insurance, and both daughter’s credit-card debt and affirm on this issue.

II. Whether the chancellor erred in awarding Susan attorney’s fees.

¶ 21. The chancellor ordered Frank to pay $4,500 to Susan for attorney’s fees. If the party requesting a divorce “establishes an inability to pay[,]” it is appropriate to award attorney’s fees. Stewart v. Stewart, 2 So.3d 770, 776 (¶ 18) (Miss.Ct.App.2009) (citing Gray v. Gray, 745 So.2d 234, 239 (¶ 26) (Miss.1999)). “As the issue of whether to award attorney’s fees in a divorce case is a discretionary matter left to the chancellor, this Court is ‘reluctant to disturb’ such a finding.” Id. (citing Young v. Young, 796 So.2d 264, 268 (¶ 11) (Miss.Ct.App.2001)).

¶ 22. This Court has stated that in cases where we reverse and remand “for the chancellor to make specific findings of fact and conclusions of law to support the equitable division of assets and the award of alimony, the Lauro decision also requires that we remand to allow the chancellor an opportunity to reconsider the award of attorney’s fees.” Gray v. Gray, 909 So.2d 108, 113 (¶ 22) (Miss.Ct.App.2005) (citing Lauro, 847 So.2d at 850 (¶ 18)). “On remand, the chancellor may indeed revisit the award of attorney’s fees.” Id. However, although Frank claims that there was no finding by the chancellor that Susan was financially unable to pay, there was clear evidence presented that Susan was unable to pay the attorney’s fees and that there was a “disparity in the relative financial positions of the parties[.]” See Owen v. Owen, 22 So.3d 386, 393 (¶25) (Miss.Ct.App.2009) (citation omitted). Frank’s income was significantly greater than Susan’s, and he was the one who had left the marriage. Therefore, we find that Frank’s argument lacks merit and affirm the chancellor’s award of attorney’s fees to Susan.

III. Whether the Court should award attorney’s fees to Susan on appeal.

¶ 23. In her brief to this Court, Susan included a motion requesting the payment of her attorney’s fees upon appeal. Attorney’s fees on appeal are generally awarded “in the amount of one-half of what was awarded in the lower court.” Scurlock v. Purser, 985 So.2d 362, 365 (¶ 9) (Miss.Ct.App.2008) (quoting Makamson v. Makamson, 928 So.2d 218, 222 (¶ 18) (Miss.Ct.App.2006)). “But ultimately, the decision whether to award attorney’s fees on appeal is discretionary with this Court.” Howard v. Howard, 968 So.2d 961, 980 (¶ 53) (Miss.Ct.App.2007) (citing Riddick v. Riddick, 906 So.2d 813, 829 (¶ 52) (Miss.Ct. App.2004)).

¶ 24. We are also “precluded from considering the issue” if no authority is cited “for entitlement to attorney’s fees for defending an appeal.” Larue v. Larue, 969 So.2d 99, 112-13 (¶ 45) (Miss.Ct.App.2007) (citing Lauro, 847 So.2d at 851 (¶ 21)). Nor has Susan provided this Court evidence of the fees charged by her attorney or the work involved in this appeal. See Monroe v. Monroe, 745 So.2d 249, 253 (¶ 18) (Miss. 1999). Moreover, as we are reversing on the issues of equitable distribution of marital assets, alimony, and child support, we decline to award attorney’s fees to Susan for her appeal.

CONCLUSION

¶ 25. We affirm the chancery court’s judgment ordering Frank to pay Rebecca’s medical insurance and expenses and both daughters’ credit-card debt, and we affirm the award of attorney’s fees to Susan. However, as the chancellor failed to provide the appropriate findings of fact pertaining to the equitable distribution of the marital assets (particularly the award of the marital home), the award of permanent periodic alimony, and the award of child support for Rebecca, we must reverse the chancellor’s judgment and remand for proceedings in accordance with this opinion.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND AP-PELLEE.

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

      . Since this action, the two daughters have become emancipated. See Miss.Code Ann. 93-1 l-65(8)(a)(i) (Supp.2009).

      . This portion of statute was amended in 2006. Previously, the statute specifically listed the factors in determining whether emancipation had occurred. However, the current amended statute is the one applicable to this case.


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    BURLINGTON INDUSTRIES, INC., and Reliance National Indemnity Company, Appellants v. Melinda PRINCE, Appellee.
    No. 2009-WC-01175-COA.
    Coui’t of Appeals of Mississippi.
    Nov. 2, 2010.
    Sandra Taylor Doty, Jackson, attorney for appellant.
    Henry P. Pate III, C. Ray Scales Jr., attorneys for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J.,

for the Court:

¶ 1. Melinda Prince suffered an on-the-job injury while employed by Burlington Industries, Incorporated (Burlington). The administrative judge (AJ) found that Prince had suffered a compensable, work-related injury and ordered Burlington to provide any total disability benefits, as well as all medical services and supplies required by the nature of her injury and in the process of recovery. Burlington appealed, and the Mississippi Workers’ Compensation Commission (Commission) dismissed the appeal on the ground that it was an interlocutory appeal, since the AJ’s order failed to dispose of all issues pending before the judge. Burlington and Prince entered into a joint stipulation, in which Burlington agreed that if the issue of com-pensability was upheld on appeal, Burlington would concede that Prince was permanently and totally disabled and pay Prince’s claim. The full Commission reinstated Burlington’s appeal, and it affirmed the AJ’s order. Burlington appealed to the Clarke County Circuit Court, which dismissed the appeal on the ground that both the order of the AJ and the Commission’s decision were interlocutory. Burlington filed a motion to reconsider, which the circuit court subsequently denied. Burlington now appeals, asking this Court to find that the circuit court erred in granting Prince’s motion to dismiss the appeal and also erred in denying Burlington’s motion to reconsider. We find no error and affirm.

FACTS

¶ 2. This appeal stems from a workers’ compensation claim that Prince asserted against Burlington on July 16, 1998. Prince had been employed by Burlington since 1993, and at the time of her injury, she held the position of cloth inspector. Prince was injured on March 24, 1998, after she fell off a loom and landed on her buttocks. She stated that when she fell, she hit her knee on the yard stand and immediately began to experience pain. Prince filed a workers’ compensation claim, which was denied on July 28, 1998. The parties proceeded to a hearing on the merits on the issue of compensability before an AJ. The AJ issued an order on May 30, 2007, finding that Prince had suffered a work-related injury, and the AJ held that the claim asserted was compen-sable. In the order, the AJ stated that “the parties agreed that there is one issue and no stipulations. The issue for decision is whether the claimant suffered a work-related injury to her back and/or a psychiatric disability.” The issues of mileage reimbursement; out-of-pocket medical expenses; nursing-care expenses; and past, present, and future medical expenses owed for Prince’s work-related injuries were not addressed at this hearing. Burlington filed a petition to review the AJ’s decision on June 15, 2007. Prince filed a motion to dismiss the petition for review on June 26, 2007. On July 11, 2007, the full Commission denied this appeal as interlocutory, ruling that the order of the AJ was not a final order because it only determined the issue of compensability and did not address the degree of disability that Prince had sustained due to the injury.

¶ 3. On April 1, 2008, the parties entered into a joint stipulation wherein Burlington conceded that if compensability was upheld on appeal, Prince would be entitled to the maximum benefit provided for her disability under the Workers’ Compensation Act. After the parties agreed to the joint stipulation, Burlington filed a motion to reinstate the appeal with the full Commission. Prince did not object to this motion or file a motion to dismiss on the ground that the appeal was a based on an interlocutory order. On April 25, 2008, the full Commission granted Burlington’s motion to reinstate the appeal. After oral argument, the full Commission rendered a 2-1 decision in favor of Prince on February 10, 2009. Burlington appealed this decision to the Clarke County Circuit Court.

¶4. Prince filed a motion to dismiss Burlington’s appeal to the circuit court, arguing that Burlington’s appeal from the full Commission’s order was interlocutory because issues such as the amount of medical expenses, mileage reimbursement, and nursing-care expenses had not been determined. Burlington filed a response, stating that the appeal was not interlocutory because no further issues remained to be determined at the AJ’s level due to the joint stipulation agreed upon by the parties. The circuit court granted Prince’s motion to dismiss the appeal after finding that the AJ’s order and full Commission’s decision had addressed only the issue of compensability. The circuit court noted that the Commission’s decision did not address a determination of the total amount of compensation to be paid to Prince because a specific amount of out-of-pocket medical expenses, mileage reimbursements, and nursing-care expenses had not been assigned, thereby making the appeal interlocutory in nature and leaving the circuit court without jurisdiction. Burlington filed a motion to reconsider, clarifying that the order that was being appealed was the full Commission’s decision entered on February 10, 2009, and not the full Commission decision entered on July 11, 2007, where the Commission first rejected the appeal on the ground that it was an interlocutory appeal. The circuit court denied this motion. This appeal followed.

STANDARD OF REVIEW

¶ 5. This Court adheres to a limited standard of review of decisions of the Workers’ Compensation Commission. Raytheon Aerospace Support Servs. v. Miller, 861 So.2d 330, 335 (¶ 9) (Miss.2003). The Commission sits as the finder of fact. Miss. Loggers Self Insured Fund, Inc. v. Andy Kaiser Logging, 992 So.2d 649, 654 (¶ 15) (Miss.Ct.App.2008). Thus, our review of Commission decisions is limited to determining whether the Commission erred as a matter of law, or made findings of fact contrary to the overwhelming weight of the evidence. Clements v. Welling Truck Serv., Inc., 739 So.2d 476, 478 (¶ 7) (Miss.Ct.App.1999) (citation omitted). “Reversal is proper only when a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶6) (Miss.2003). “Where no evidence or only a scintilla of evidence supports a Worker’s [sic] Compensation Commission decision, this Court does not hesitate to reverse.” Foamex Prods., Inc. v. Simons, 822 So.2d 1050, 1053 (¶ 11) (Miss.Ct.App.2002). However, if supported by substantial evidence, this Court holds the findings and order of the Commission as binding, “even though the evidence would convince [us] otherwise, were we the fact-finder.” Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988).

DISCUSSION

I. Whether the Circuit Court Relied on the Wrong Full Commission Decision in Dismissing the Appeal

¶ 6. Burlington argues that the circuit court relied on the incorrect decision from the full Commission in dismissing Burlington’s appeal. Burlington submits that the circuit court’s order dismissing the appeal cites the full Commission’s July 11, 2007, decision, which the circuit court finds as interlocutory in nature. Burlington argues that it is not appealing the July 11, 2007, full Commission decision; instead, Burlington submits that it is appealing the full Commission decision entered on February 10, 2009. Burlington argues that the decision issued on February 10, 2009, is not interlocutory, as evidenced by the fact that the full Commission granted the motion to reinstate the appeal brought by Burlington. This motion to reinstate the appeal was granted without objection from Prince after the Commission had first rejected the appeal on the ground that there were issues remaining to be determined by the AJ. Burlington asserts that the joint stipulation, when coupled with the AJ’s May 30, 2007 order, relieves the AJ of the need to hear any additional issues or make any additional findings. Therefore, Burlington submits that the May 30, 2007, decision and joint stipulation, when viewed together, constitute a final decision or award which can be appealed.

¶ 7. However, the record reflects that the circuit court’s order dismissing Burlington’s appeal states that Burlington “filed its Notice of Appeal to the Clarke County Circuit Court from the Full Workers’ Compensation Commission Order rendered on February 10, 2009.” (emphasis added). Thus, we note that the Commission was aware that Burlington was appealing the February 10, 2009, full Commission decision. The record further reflects that the February 10, 2009, full Commission decision affirmed the May 30, 2007, order of the AJ, where the AJ had held that the only matter to be decided at that time was the issue of compensability.

II. Whether the Circuit Court’s Dismissal of the Appeal as Interlocutory was Proper

¶ 8. Burlington asserts that the full Commission properly reinstated Burlington’s appeal of the AJ’s May 30, 2007, order via their April 25, 2008, order. Burlington argues that since the full Commission reinstated Burlington’s appeal, this shows that the full Commission agreed that the May 30, 2007 order addressing compensability, combined with the joint stipulation entered into between the parties, created a situation where no additional issues remained to be decided by the AJ; therefore, it was appealable.

¶9. Burlington claims that the circuit court erred by stating that a determination was required to be made at the AJ level of out-of-pocket medical expenses, mileage reimbursements, and nursing-care expenses before an appeal could proceed. Burlington asserts that in the May 30, 2007, order, the AJ stated that Burlington was required to provide: any temporary total disability benefits that might be owed regarding the back injury and related psychological condition, all medical services and supplies required by the nature of her injury, and services and supplies required by the process of her recovery and the medical-fee schedule. Burlington further submits that even if these areas had not been addressed via the order, a specific determination of these areas is not required by a judge. If such a determination were required, Burlington argues that it would be impossible for the AJ to make a definite finding as to a specific amount attributable for each of these categories due to the fact that the amounts would not be fixed, but rather, continual. Burlington also points out that the circuit court erred in finding that the joint stipulation entered into between the parties failed to address the issue of penalties and interest, thereby making the appeal improper.

¶ 10. Burlington submits that throughout the workers’ compensation section of the Mississippi Code, the term “award” is associated with the grant of a monetary sum. See Bullock v. AIU Ins. Co., 995 So.2d 717, 722 (¶ 17) (Miss.2008). Burlington submits that if the parties in the present case had returned to the AJ, the “award” rendered would have pertained to the amount of compensation Prince would have been owed based upon her disability. The parties signed a joint stipulation, conceding Prince’s benefits. Burlington asserts that this joint stipulation left no further issues to be decided by the AJ. Thus, Burlington claims that the order of the AJ, coupled with the joint stipulation, constituted an award and final order that were appealable.

¶ 11. However, in Bullock, 995 So.2d at 722 (¶ 18), the Mississippi Supreme Court held that a final award is a “final decision to grant or deny a specific amount of compensation.” A determination solely on the issue of liability, without deciding the amount of compensation, is not a final award. Id. Since no specific award was made in the AJ’s order in Bullock, the supreme court held that it did not constitute a final order. Id. Further, in the present case, the February 10, 2009, decision issued by the full Commission merely affirmed the AJ’s May 30, 2007, order, which specifically stated that it was not a final order.

¶ 12. Burlington further argues that had the full Commission determined that the joint stipulation was not a valid and binding document between the parties, the motion to reinstate the appeal would not have been granted. The supreme court has stated that while the parties may stipulate as to facts, they cannot, by stipulation, change the law. Board of Levee Comm’rs v. Parker, 187 Miss. 621, 193 So. 346, 348 (1940). Mississippi law requires a final order from a court before the parties can appeal. The parties’ stipulation in the present case, when coupled with the AJ’s May 30, 2007, order, does not constitute a final award or order from which an appeal may be taken. This issue is without merit.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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

      . In its brief, Burlington actually cites Mississippi Code Annotated section 71-3-3 (Rev. 2000) as the authority for this assertion, but we find that sections 71-3-17(c)(24), (26) (Rev.2000); 71-3-37(1), (5), (6), (9) (Supp. 2009); 71-3-38 (Rev.2000); 71-3-49(1), (2) (Rev.2000); 71-3-51 (Rev.2000); 71-3-53 (Rev.2000); 71-3-63 (Rev.2000); 71-3-67(4) (Rev.2000); 71-3-75(2) (Supp.2009); 71-3-89 (Rev.2000) contain references which associate an award with a grant of a monetary sum.


author: ISHEE, J„

text:
    M.L.R., Appellant v. PONTOTOC CITY SCHOOL DISTRICT BOARD OF TRUSTEES, Appellee.
    No. 2009-CA-00979-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      Edwin Hughes Priest, Tupelo, Jonathan W. Martin, attorneys for appellant.
    Phillip L. Tutor, Berkley N. Huskison, Columbus, attorneys for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   ISHEE, J„

for the Court:

¶ 1. A high-school student, who was expelled from school for a year for having drugs in her car on campus, attempted to appeal that expulsion to circuit court. The Circuit Court of Pontotoc County found that the appeal was not properly filed; therefore, the court lacked jurisdiction and dismissed the appeal. Finding no error, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. M.L.R., a minor, was an eleventh-grade student at Pontotoc City High School during the 2007-2008 school year. On September 24, 2007, school officials, along with officers with the Pontotoc Police Department and the Tupelo Police Department’s canine unit, conducted a search of the high school’s parking lot. Officer Nichole Doss’s drug dog, Caneek, alerted on a 1991 Mazda in the school’s parking lot. The school’s parking sticker showed that the car was brought to school by M.L.R. M.L.R. was called to the scene and asked by the law enforcement officials for permission to search the car’s interior; she voluntarily consented to the search. When asked before the search if there were drugs in the vehicle, she said no. During the search the officers found .6 gram of marijuana in the automobile. Immediately, M.L.R. denied knowledge of the marijuana and volunteered to take a drug test. She told the officers that she had lent the vehicle to other students over the weekend and that the bag in which the marijuana was found was not hers.

¶ 3. In accordance with the state’s zero-tolerance drug policy, Principal David Tudor, notified M.L.R. and her mother that M.L.R. was immediately subject to a ten-day suspension and that his recommendation to the Superintendent of Education, Conwell Duke, would be that she be expelled for the rest of the 2007-2008 school year. A charge for misdemeanor possession of marijuana inside a motor vehicle was lodged against her the same day by the Pontotoc City Police. The record does not reflect what, if any, resolution was made in that case. On September 25, 2007, Superintendent Duke sent a letter to M.L.R. and her mother, R.Y., notifying them that he had accepted the principal’s recommendation for a year-long suspension. The letter also advised them that they were entitled to a due-process hearing at which they could present “any evidence in rebuttal or mitigation of the allegations” made against M.L.R. and that they could question any witnesses having knowledge of the matter. R.Y. requested a hearing. By letter, Superintendent Duke advised R.Y. that a hearing before the Pontotoc City School District Board of Trustees would be held at 7:30 a.m. on October 8, 2007, to consider M.L.R.’s suspension.

¶4. Both the attorney for M.L.R. and for the Board agree that a hearing was, in fact, held. There is no transcription of the hearing in the record. According to the briefs, both sides attempted to record the due-process hearing, but each recording resulted in poor quality. According to both parties’ briefs, the following attended the hearing: M.L.R.; R.Y.; Superintendent Duke; school board members Charlotte Bass, Rene Simon, Thomas Chewe, Davis Ray; and school-board attorney, Phillip L. Tutor. The attorney for M.L.R. claims that no witnesses were called by the school-board attorney and that the police reports of the drug discovery were the only evidence presented. The school-board attorney asserts for the Board that Superintendent Duke was sworn and called as a witness for the school administration. The school board’s attorney contends that the police incident report and the student’s school record were admitted through Superintendent Duke’s testimony. The school-board attorney states that Superintendent Duke was cross-examined by R.Y. on behalf of M.L.R., after which R.Y. and M.L.R. were sworn, and both testified. M.L.R.’s potential expulsion was taken up near the end of a long meeting. Ultimately, the Board found that M.L.R. “did commit the offenses alleged in the notice sent to her” and found that she should be suspended until August 1, 2008, including exclusion from all extracurricular events. R.Y. was advised of her daughter’s expulsion by a letter dated October 11, 2007, from Superintendent Duke.

THE ATTEMPTED APPEAL

¶5. On October 18, 2007, R.Y. filed a twelve-page document in the Circuit Court of Pontotoc County styled “Bill of Exceptions,” which R.Y. signed on behalf of M.L.R. She also made an identical filing in the Pontotoc County Chancery Court. On the final page of her filing, there was a line for the signature of the president of the Pontotoc City School District, but there was no signature on the line. Attached to this filing were thirty-four “exhibits,” which included various letters and policies of the school district, and the final page was a handwritten document by R.Y. stating that she “tried diligently to get the president of the Pontotoc City School Board (Charlotte Bass) to sign the appeal document.” The document said that Bass “refused to sign until the attorney for the Board review[ed] the documents.” R.Y. then wrote that she delivered a copy of the documents to the school-board attorney.

¶ 6. The Board responded by filing a motion to strike R.Y.’s pleading or, in the alternative, to dismiss it. The Board argued that R.Y. had failed to file a proper appeal under Mississippi Code Annotated sections 37-7-115 (Rev.2007) (appeals from school board orders) and 11-51-75 (Rev. 2002) (appeal from decision of board of supervisors or municipal authorities). The school board argued that the bill of exceptions had not been signed by the appropriate official as required by section 11-51-75, and the documents attached to it were nothing more than an appellant’s brief with a recitation of her version of the “facts” and a summation of the argument. Interestingly, the Board attached to its motion to dismiss what it called a legally sufficient bill of exceptions which included various disciplinary notices against M.L.R.-most involving unexcused tardies. The Board’s sample bill of exceptions was also not signed by the president of the school board.

¶ 7. In January 2008, counsel of record for M.L.R. made an entry of appearance in the case and responded to the motion to strike. The circuit judge set the matter for hearing and allowed the parties to file appellate briefs, which each side did.

¶ 8. On May 15, 2009, the circuit court issued its order, which set out the facts in the first paragraph; then in the second paragraph, the court noted that M.L.R. had filed a pleading titled “bill of exception” in both the circuit and chancery courts. The circuit judge found that the bill of exceptions “did not comply with the statutory requirements for such causes of actions.”

¶ 9. The circuit court found that the bill of exceptions was improper; therefore, the court had no jurisdiction. However, notwithstanding its finding of a lack of jurisdiction, the circuit court in the next paragraph proceeded on and found that there was substantial evidence to support the decision of the Board and held that the Board’s decision to expel M.L.R. was not arbitrary and contained no errors of law. The final paragraph of the order reads: “It is therefore Ordered and Adjudged that this cause be and the same is hereby affirmed and shall be dismissed from the Circuit Court of Pontotoc County, Mississippi.” It is from this order that M.L.R. has appealed.

ANALYSIS

¶ 10. In Mississippi, superintendents and principals are given the power to suspend students for good cause. Miss.Code Ann. § 37-9-71 (Rev.2007). The state has codified infractions for which a student can be disciplined. One such infraction requiring automatic expulsion is the possession of a controlled substance in any school. Miss.Code Ann. § 37-11-18 (Rev.2007). Section 37-11-18 provides, in part, that the student who is expelled shall have the constitutional right to due process, which includes the right to appeal the expulsion to the local school board. M.L.R. went through this process and was expelled for a school year after marijuana was found in her car. However, we do not review the correctness of this expulsion because, as the circuit court found, M.L.R. did not file a proper bill of exceptions allowing a review in the circuit court.

¶ 11. Appeals from school-board orders are taken in the same manner as those of appeals from judgments of the board of supervisors pursuant to Mississippi Code Annotated section 11-51-75. Miss.Code Ann. § 37-7-115. Section 11-51-75 is straightforward in how to bring an appeal to circuit court. The statute provides that any person aggrieved by a judgment of, in this case the school board, may appeal to the circuit court within ten days from the date of adjournment of the session at which the school board rendered the judgment to be appealed. The statute continues: “Any person ... may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the [school board].” Id. (emphasis added). When a bill of exceptions is properly prepared and is signed by the person acting as the president of the school board, then the clerk thereof is directed to transmit the bill of exceptions to the circuit court “at once.” Id.

¶ 12. As a general rule the purpose of a bill of exceptions is to afford an appellate court a history of the proceedings below. Our supreme court has held that: “The circuit court can only consider the case as made by the bill of exceptions. This is the only record before the circuit court, as an appellate court.” Stewart v. City of Pascagoula, 206 So.2d 325, 328 (Miss.1968). “If the bill of exceptions is not complete and is fatally defective in that pertinent and important facts and documents are omitted therefrom, then the court does not have a record upon which it can intelligently act.” Id. Our supreme court has repeatedly held that, absent a bill of exceptions, the circuit court is not vested with subject-matter jurisdiction over the appeal. McIntosh v. Amacker, 592 So.2d 525, 527 (Miss.1991).

¶ 13. A plain reading of section 11 — 51— 75 shows that a bill of exceptions has two requirements. The first requirement is that the bill of exceptions is to embody the facts, judgment, and decisions of the body making the determination. The second requirement is that the bill is signed by the president of that body against which the bill of exceptions is brought. It is logical that the reason for having the president sign the bill of exceptions is to ensure that the record is correct. At this point, the school board may add whatever material it deems is needed. The appellant’s duty is to prepare the bill and gain the signature of the school board president, which will be the appellee. Such a procedure ensures the documents that are in the record embody the facts, judgments, and decisions which both parties agree are necessary to be before the circuit court. Without such a signature, a bill of exception must fail as the court has no record “upon which it can intelligently act.” Stewart, 206 So.2d at 328.

¶ 14. Without the signature of the president of the school board on the bill of exceptions filed by R.Y. on behalf of M.L.R., we must affirm the circuit court’s dismissal and find that M.L.R. failed to place her appeal before the circuit court. R.Y. wrote on her attempted bill of exceptions that the president of the school board would not sign the document until the school board attorney reviewed it. If this were true, and we do not say that it is, then the next action which R.Y. should have taken was to compel the school board president to sign the bill by filing a writ of mandamus. See Roach v. Tallahatchie County, 78 Miss. 303, 29 So. 93, 93 (1901).

¶ 15. The circuit court exceeded its authority when it went further in its opinion and reviewed the Board’s decision to expel M.L.R. for one school year, finding there was substantial evidence supporting such a finding. This ruling of the circuit court is a nullity as the court had just previously dismissed the appeal for lack of jurisdiction for failing to meet the requirements for a correct bill of exceptions.

¶ 16. Therefore, we affirm the decision of the Circuit Court of Pontotoc County to dismiss the bill of exceptions after finding that it lacked jurisdiction to hear the appeal.

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

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

      . Initials are used to protect the identity of the minor and her mother.

      . Later that day, she took a drug screen at her own expense and passed.

      . Miss.Code Ann. section 37-11-18 (Rev. 2007).


author: CARLTON, J.,

text:
    Rodney LAMEY, Appellant v. BOARD OF SUPERVISORS OF JACKSON COUNTY, Appellee.
    No. 2009-CA-00815-COA.
    Court of Appeals of Mississippi.
    Nov. 2, 2010.

      William Michael Kulick, Ocean Springs, attorney for appellant.
    Katherine B. Parker, attorney for appel-lee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Rodney Lamey appeals the judgment of the Circuit Court of Jackson County that upheld the Jackson County Board of Supervisors’ (Board) decision that Lamey no longer possessed the qualifications to continue as a commissioner of the West Jackson County Utility District (District). After careful review of the record, we find substantial evidence to support the Board’s decision, which was affirmed by the circuit court. Accordingly, we affirm.

FACTS

¶ 2. Lamey served as an appointed commissioner of the District, and at a hearing held on April 7, 2008, the Board found that Lamey no longer possessed the qualifications to hold the office of commissioner. Specifically, the Board determined that Lamey no longer resided within the district, as required of the District’s commissioner appointees under Mississippi Code Annotated section 19-5-171 (Supp. 2009). During the hearing, Lamey appeared before the Board and explained that he temporarily moved out of his Jackson County residence during the remodeling of his home. He further explained that during the temporary relocation, Hurricane Katrina destroyed the residence. Unfortunately, his new residence sat approximately one-hundred feet outside of the Jackson County line and no longer satisfied the county residency requirements of his appointment. Although Lamey’s new residence fell within the parameters of Harrison County, he still received water services from the District.

¶ 3. After the hearing, the Board issued a resolution stating that Lamey no longer met the residency requirements necessary to serve as a commissioner of the District and that Lamey had, therefore, vacated his office. Lamey submitted a bill of exceptions to the president of the Board, and then he filed the bill of exceptions and an appeal in the Jackson County Circuit Court. Lamey argued that the Board lacked the legal authority to remove a commissioner from office. The circuit court affirmed the Board’s decision to remove Lamey from his office as commissioner. Lamey now appeals, arguing that the circuit court had erroneously interpreted Mississippi Code Annotated section 19-5-167 (Rev.2003), and he asserts that the court and Board provided erroneous factual determinations regarding his removal from his position as commissioner.

STANDARD OF REVIEW

¶ 4. This Court adheres to a limited review of decisions rendered by an executive body. Precedent requires that the decision of an administrative agency not be disturbed on appeal “absent a finding that it was not supported by substantial evidence, was arbitrary or capricious, was beyond the power of the administrative agency to make, or violated some statutory or constitutional right of the complaining party.” Miss. Waste of Hancock County, Inc. v. Bd. of Sup’rs of Hancock County, 818 So.2d 326, 330 (¶ 6) (Miss.2001); Uniform Rule of Circuit and County Court 5.03. We also acknowledge that “[t]here is a rebuttable presumption in favor of the agency’s decision[,] and the burden of proving to the contrary is on the challenging party.” Id. Reflecting deference to the agency as the fact-finder, this Court “must not reweigh the facts of the case or insert its judgment for that of the agency.” Lewis v. Miss. Employment Sec. Comm’n, 767 So.2d 1029, 1030-31 (¶ 9) (Miss.Ct.App.2000).

DISCUSSION

I. Whether Mississippi Code Annotated section 19-5-167 was erroneously interpreted.

¶ 5. Lamey argues that the language of section 19-5-167 clearly mandates that after the creation of a county water district, the Board possesses no authority to interfere with the business of the district except to appoint commissioners upon the occurrence of a vacancy.

¶ 6. Section 19-5-167 states, in pertinent part, that:

Any vacancy occurring on a board of commissioners shall be filled by the board of supervisors at any regular meeting of the board of supervisors, and the board of supervisors shall have the authority to fill all unexpired terms of any commissioner or commissioners. Notwithstanding the appointive authority herein granted to the board of supervisors, its legal and actual responsibilities, authority and function, subsequent to the creation of any district, shall be specifically limited to the appointive function and responsibilities outlined in [sjections 19-5-179, 19-5-189 and 19-5-191. The operation, management, abolition or dissolution of such district, and all other matters in connection therewith, shall be vested solely and only in the board of commissioners to the specific exclusion of the board of supervisors, and the abolition, dissolution or termination of any district shall be ae-complished only by unanimous resolution of the board of commissioners.

Lamey asserts that the statute gives the District’s commissioners authority over all matters pertaining to the operation and management of the District. He argues that the statute limits the authority of the Board and prohibits its interference with the internal workings of the District. La-mey asserts this limitation prevents the Board from determining if a vacancy occurred. Lamey submits that the statutory language supports his argument that only the District, not the Board, possessed the authority to determine if a vacancy occurred.

¶ 7. The Board relies upon Mississippi Code Annotated section 25-1-59 (Rev. 2006) in ascertaining that since Lamey moved out of the boundaries of Jackson County, then he thereby vacated his office as commissioner. The Board found that the vacancy required Board action to fill the vacancy. Section 25-1-59 states that:

If any state, district, county, county district, or municipal officer during the term of his office shall remove out of the state, district, county, or municipality for which he was elected or appointed, such office shall thereby become vacant and the vacancy be supplied as by law directed. If any person who has been or shall be a collector or holder of public money is elected to either branch of the [L]eg-islature or to any office of profit or trust, and shall not have accounted for and paid into the treasury all sums for which he may be accountable on or before the day of the meeting of the [L]eg-islature to which he shall be chosen or the time for the commencement of his term of office, the seat of such person in the [L]egislature or the office to which he was elected shall be forthwith vacated thereby.

¶ 8. The Board concedes that the statute omits language specifying regarding who makes the factual determination as to the existence of a vacancy. However, the Board points to Mississippi Attorney General Opinion 2008-00231, 2008 WL 2687396, The Honorable Edward Seals (June 13, 2008), in which the Mississippi Attorney General found that the question of whether a school board member had vacated his office by his removal from the district should be determined by the appointing authority, and not the school board.

¶ 9. However, Lamey argues that since no ambiguity exists in the language of section 19-5-167, nothing requires the Board to look to section 25-1-59 to determine whether a commissioner lacks residency qualifications to hold his office. He also argues that the decision of when a vacancy occurs constitutes an internal matter that fundamentally pertains to the District’s operation; thus, it falls under the authority of the commissioners, not the Board.

¶ 10. We note that the circuit judge states in her opinion that the attorney general takes the position that the appointive authority must determine whether a person has “removed” himself from the district, and if by removing from the district, he thereby created a vacancy. See Miss. Atty. Gen. Op. 2008-00231, 2008 WL 2687396, Seals. As a result, the circuit court held that the action of the Board in declaring a vacancy based on Lamey’s removal from the district constituted appropriate action by the Board. Additionally, in Mississippi Attorney General Opinion 2006-00377, 2006 WL 2789807, Mayor Billy Skellie (Aug. 18, 2006), the attorney general stated that whether an official “removed” himself out of the jurisdiction for which he was elected or appointed consists of a question of fact. The attorney general further established that “[t]he municipal governing board has the responsibility to make the factual determination as to whether an officer has abandoned the municipality as his place of residence or whether he is only temporarily away from his residence.” Miss. Atty. Gen. Op. 94-0149, 1994 WL 175731, Alderman Brian Barcelona (April 13, 1994). We agree with the circuit court that the Board possessed the responsibility to determine factually whether an individual removed himself or herself from the district of appointment. If the Board determines that an individual indeed voluntarily removed from the district, then a vacancy necessarily occurred by operation of law according to statutory appointment requirements. Therefore, we agree with the circuit court’s judgment finding that substantial evidence exists to support the Board’s decision, and we also find that the Board’s decision was not arbitrary or capricious. See URCCC 5.03. This issue is without merit.

II. Whether the circuit court’s factual determination that Lamey had vacated his office as commissioner was erroneous.

¶ 11. Lamey next argues that the circuit court erred in its factual finding concluding that he had removed himself from the district. He cites Mississippi Code Annotated section 19 — 5—177(k) (Rev. 2003), which authorizes the District to “extend its services to areas beyond but within one (1) mile of the boundaries of such district.” Although he admits that he located his residence outside of Jackson County, Lamey asserts that he still lived within this one-mile zone authorized by the statute. In support of his position, he explained that he received his water services from the District. However, we note that the statutory language authorizes the District to extend its services, not its legal boundaries. As a result, section 19-5-177 fails to extend the legal boundaries of the District to include Lamey’s residence in Harrison County, a county different from the county of appointment.

¶ 12. Lamey also claims that section 19-5-171(1) supports his argument that he still possessed qualifications to serve as a commissioner, noting that this section provides that “the owner of land or the conductor of a business situated within the district ... shall be eligible to hold the office of commissioner.” Miss.Code Ann. § 19-5-171(1) (Rev.2003). Lamey disputes the factual findings of the Board in claiming that he owns and pays taxes for his homestead in Jackson County, as well as conducts business primarily within the general vicinity of the District’s boundaries. As a result, he asserts that despite the new Harrison County residence, no removal from Jackson County or the District occurred. Therefore, he argues no vacancy exists.

¶ 13. We note that in Mississippi Public Service Commission v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992), the Mississippi Supreme Court stated: “So long as substantial evidence exists, an agency’s fact finding must be allowed to stand 'even though there might be room for disagreement on that issue.’ ” With this limited standard in mind, upon review of the record, we agree with the circuit court that substantial evidence exists in support of the Board’s factual determination that Lamey no longer resides within the boundaries of the District; thus, a vacancy exists. We also agree with the circuit court that the Board’s decision finding that La-mey removed himself from the District was not arbitrary or capricious. See URCCC 5.0B. We, therefore, affirm the circuit court’s judgment.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MAXWELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, J., NOT PARTICIPATING.

      . Section 19-5-171 states that appointments to the District must come from the residents of the county in which the District is located.


author: WOODALL, Justice.

text:
    Ex parte Susan S. DEPAOLA, trustee in bankruptcy for Clifford H. Willcutt III. (In re Danny Clements Builder, Inc. v. Clifford H. Willcutt III).
    1071620.
    Supreme Court of Alabama.
    Feb. 12, 2010.
    Rehearing Denied April 9, 2010.
    Richard A. Lawrence, Montgomery; and Scott Johnson, Montgomery, for petitioner.
    Joseph Seawell Moore and John G. Smith of Balch & Bingham, LLP, Montgomery, for respondent.
   WOODALL, Justice.

Clifford H. Willcutt III petitioned this Court for a writ of mandamus, seeking relief from the trial court’s denial of Will-cutt’s motions to amend his answer and counterclaims in an action Danny Clements Builder, Inc. (“Clements Builder”), filed against Willcutt in the Montgomery Circuit Court. On September 10, 2008, Willcutt filed in this Court a suggestion of bankruptcy, and on September 15, 2008, this Court placed Willcutt’s petition on its administrative docket. On November 19, 2008, Susan S. DePaola, as Willcutt’s bankruptcy trustee, filed a notice of substitution of party, substituting the trustee for Willcutt as the petitioner. DePaola, as Willcutt’s trustee in bankruptcy, now pursues Willcutt’s petition for mandamus relief. We deny the petition.

Facts and Procedural History

In December 2005, Willcutt contracted with Clements Builder for the construction of a commercial building in Montgomery. In March 2007, after constructing the building, Clements Builder sued Willcutt, alleging that Willcutt owed it approximately $22,000 in unpaid construction costs. Willcutt answered the complaint and filed several counterclaims against Clements Builder. In his counterclaims, Willcutt alleged that Clements Builder (1) had been overpaid for its work; (2) had breached the contract by failing to follow the contract plans with respect to exterior wall studs, electrical panels, louver vents, and a driveway; (3) had fraudulently misrepresented facts regarding the elevation of the building; and (4) had fraudulently misrepresented facts related to the installation of a fireplug.

In May 2007, the trial court entered a scheduling order, setting the case for trial on November 26, 2007, and stating that discovery had to be completed by November 5, 2007. On November 16, 2007, after the close of discovery and only 10 days before the scheduled trial, Willcutt filed a “Second Amendment to Counterclaim,” seeking leave of court to add a demand for attorney fees. Three days later, on November 19, Willcutt filed a “Third Amendment to Counterclaim,” seeking leave of court to add a claim that Clements Builder had breached the contract in another manner by improperly installing anchor bolts in the building. On that same day, Will-cutt also sought to amend his answer to add a claim for attorney fees. Clements Builder moved the trial court to strike each of the requested amendments, arguing that Willcutt had not demonstrated good cause for the amendments and that Clements Builder “would be substantially prejudiced if it is forced to defend new claims that it did not have an opportunity to explore during the discovery process.” (Emphasis in original motion.)

On November 20, 2007, the trial court continued the trial date because of a scheduling conflict. On March 14, 2008, the trial court held a hearing on all the pending motions. At the hearing, the trial court orally denied Willcutt’s motions to amend his answer and counterclaims. The trial court stated that the amendments were untimely because discovery was closed and because Willcutt knew or should have known of his new counterclaims for attorney fees and alleging breach of contract well in advance of the time he filed his motions to amend.

In April 2008, Willcutt petitioned this Court for mandamus relief from the trial court’s ruling. This Court dismissed Will-cutt’s petition on the ground that the trial court’s oral ruling was not an “order,” under Rule 58(a), Ala. R. Civ. P. On August 19, 2008, the trial court entered a written order denying Willcutt’s motions to amend his answer and counterclaims. On August 29, 2008, Willcutt again petitioned this Court for a writ of mandamus directing the trial court to grant his motions for leave to amend his answer and counterclaims. DePaola, as Willcutt’s trustee in bankruptcy, now pursues Willcutt’s second petition for mandamus relief. We deny the petition.

Standard of Review

“Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (quoting Ex paite Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)). “A writ of mandamus, being a drastic and extraordinary remedy, will issue to correct a trial court’s ruling regarding the amendment of pleadings only when it is shown that the trial court has exceeded its discretion.” Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 952 (Ala.2003).

Analysis

This Court has stated:

“Rule 15(a), Ala. R. Civ. P., reflects Alabama’s liberal policy in favor of allowing amendments to pleadings:
“ ‘Unless a court has ordered otherwise, a party may amend a pleading without leave of court, but subject to disallowance on the court’s own motion or a motion to strike of an adverse party, at any time more than forty-two (42) days before the first setting of the case for trial, and such amendment shall be freely allowed when justice so requires. Thereafter, a party may amend a pleading only by leave of court, and leave shall be given only upon a showing of good cause.... ’
“We noted in Ex parte GRE Insurance Group, 822 So.2d 388, 390 (Ala.2001), that under Rule 15 amendments to pleadings are to be ‘freely allowed’ unless there exists some valid reason to deny them, such as ‘actual prejudice or undue delay[.]’
“When, as here, the amendment is sought within the 42-day window, the trial court is free to deny a party leave to amend his or her pleading unless the party can demonstrate ‘good cause.’ ... However, in light of the overarching liberal policy of allowing amendments under Rule 15, the appropriate way to view the request for leave to amend, if a party demonstrates ‘good cause,’ is as though the request had been brought more than 42 days before trial, when the trial court does not have ‘unbridled discretion’ to deny the leave to amend, but can do so only upon the basis of a ‘valid ground’ as stated above.”

Liberty National, 858 So.2d at 953-54.

In Blackmon v. Nexity Financial Corp., 953 So.2d 1180, 1189 (Ala.2006), this Court noted:

“Rule 15[, Ala. R. Civ. P.,] ‘ “is not carte blanche authority to amend ... at any time.” ’ Burkett v. American Gen. Fin., Inc., 607 So.2d 138, 141 (Ala.1992) (quoting Stallings v. Angelica Uniform Co., 388 So.2d 942, 947 (Ala.1980)).... The trial court can refuse to allow an amendment if allowing it would result in actual prejudice to the opposing party or for reasons of ‘undue delay.’ [Ex parte] GRE Ins. Group, 822 So.2d [388,] 390 [ (Ala.2001) ].
“Undue delay can have two different meanings in a case. First, the trial court has discretion to deny an amendment to a pleading if allowing the amendment would unduly delay the trial. Second, an unexplained undue delay in filing an amendment when the party has had sufficient opportunity to discover the facts necessary to file the amendment earlier is also sufficient grounds upon which to deny the amendment.”

The Court in Blackmon went on to say that the trial court had not exceeded its discretion in denying Blackmon’s motion to amend his complaint because the trial court had found that “Blackmon was aware of the facts justifying the amended complaint when he filed his original complaint,” and because the trial court had found that “the amendment would require additional discovery and would substantially delay the trial setting.” Id. at 1189-90.

DePaola argues that Willcutt demonstrated good cause for the delay in amending his answer and counterclaims and that Clements Builder would not be prejudiced if the trial court allowed the amendments. DePaola also argues that there is still time for discovery and that the facts regarding the new claims are within Clements Builder’s knowledge. However, at the hearing on Willcutt’s motions to amend, Clements Builder argued that it would “be prejudiced by [Willcutt’s] claims because [it had] not had an opportunity to conduct discovery in regard to [those claims].” The trial court agreed, stating:

“I think they’re right. I mean, discovery is closed. You know, I think they make a good point. We’ve already answered. We’ve already amended. I don’t think that it would be proper for me to grant that because discovery is closed....”

(Emphasis added.) With regard to Will-cutt’s new breach-of-contract claim, the trial court went on to say:

“You already know there’s problems. You can’t come in here and say, ‘Judge, we didn’t know [about the breach-of-contract claim] until [the anchor bolts] were dug up and we found out that it wasn’t done correctly.’
“Well, here’s evidence right here [from Willcutt’s October 1, 2007, deposition testimony] that it hadn’t been done correctly.... That they weren’t screwing things in right; that they were using the wrong size screw; that they weren’t lining up the plates; that they were using the torch to make them fit. What about all of this? Is this not a problem?”

The trial court concluded that Willcutt was “on notice that there were problems with the construction of that building,” such that Willcutt should have conducted discovery on that issue earlier, and that Will-cutt was “on notice about those attorney’s fees.... So y’all lose on those two issues.”

It appears that in this case, as in Black-mon, the trial court determined that Will-cutt “had sufficient opportunity to discover facts necessary to file the amendment[s] earlier,” Blackmon, 958 So.2d at 1189, and that Clements Builder would suffer prejudice if the motions to amend were granted. These reasons constitute “valid grounds” under Rule 15, Ala. R. Civ. P., and under our caselaw addressing motions to amend pleadings filed within 42 days of trial. See Liberty National, 858 So.2d at 953 (“[U]n-der Rule 15 amendments to pleadings are to be ‘freely allowed’ unless there exists some valid reason to deny them, such as ‘actual prejudice or undue delay1.... ”). Because the trial court’s decision was based on valid grounds adequately supported by the evidence before it, DePaola has not demonstrated that the trial court exceeded its discretion in denying Will-cutt’s motions. Therefore, we deny the petition for the writ of mandamus.

PETITION DENIED.

COBB, C.J., and SMITH, PARKER, and SHAW, JJ., concur.

      . Rule 58(a), Ala. R. Civ. P., provides:
      "A judge may render an order or a judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words ‘granted,’ ‘denied,’ ‘moot,’ or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by executing and transmitting an electronic document to the electronic-filing system.”