text:
    Gary C. MARTER, Appellant v. Celeste G. MARTER, Appellee. Gary C. Marter, Appellant v. Celeste G. Marter, Appellee.
    Nos. 2010-CA-01450-COA, 2011-CA-00391-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      Helen B. Kelly, Batesville, Lori M. Sol-inger, attorneys for appellant.
    James H. Powell III, M. Kevin Horan, attorneys for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Gary C. Marter and Celeste G. Mar-ter were married on June 1, 1978, in Grenada County, Mississippi. The Marters separated on March 8, 2008. Celeste filed for divorce on April 7, 2008, alleging habitual cruel and inhuman treatment or, in the alternative, irreconcilable differences. Gary filed a countercomplaint for divorce, alleging habitual cruel and inhuman treatment, adultery, habitual and excessive drug use, desertion, or, in the alternative, irreconcilable differences. Celeste then filed a motion to amend her complaint to include adultery as a ground for divorce. Ultimately, Gary and Celeste consented to a divorce on the ground of irreconcilable differences and asked the chancery court to decide the issues of property division, alimony, and attorneys’ fees.

¶ 2. The chancery court granted the couple a divorce on the ground of irreconcilable differences and divided the marital property. The court found that Celeste was not entitled to alimony and that neither party was entitled to attorneys’ fees. Celeste and Gary each filed motions to reconsider. Following the chancery court’s order regarding the motions, Gary filed a notice of appeal. Subsequently, Celeste filed a “Motion to Correct Judgment,” asking the court to address certain issues that it had omitted from its order on the motions to reconsider. In response, the chancery court amended its order on the motions to reconsider. Gary filed a motion to set aside the amended order, which the chancery court denied. Gary filed a second notice of appeal, and later a motion to consolidate his two appeals, which the Mississippi Supreme Court granted.

¶ 3. On appeal, Gary raises the following issues: (1) whether the chancery court erred in its classification of certain property as marital, (2) whether the chancery court erred in its valuation of certain property, and (3) whether the chancery court failed to comply with Rule 60 of the Mississippi Rules of Civil Procedure in amending its order regarding the motions to reconsider.

¶ 4. Because the chancery court’s valuation of certain property was not supported by substantial evidence, we reverse the chancery court’s judgment and remand this case for additional proceedings consistent with this opinion. Additionally, the chancery court lacked jurisdiction to consider Celeste’s motion to correct the judgment. As such, we vacate the chancery court’s amended order on the motions to reconsider. As to the remaining issue, we affirm.

FACTS

¶ 5. Gary and Celeste owned 120 acres of land in Grenada, Mississippi. Celeste had inherited an undivided one-half interest in the 120 acres from her grandfather sometime between the late 1980s and early 1990s. Celeste’s sister held the remaining one-half interest. During the marriage, the Marters purchased the sister’s one-half interest using marital funds. Gary testified that Celeste’s inherited interest and the interest purchased during the marriage were titled in Celeste’s name alone. However, in 2007, the Marters executed a deed conveying the 120 acres to themselves as “joint tenants with full rights of survivorship and not as tenants in common.” The chancery court determined that the 60 acres Celeste inherited was her separate property. The court found that the remaining 60 acres was marital property subject to equitable distribution.

¶ 6. Gary testified that there was a metal workshop located on the property. Gary valued the workshop at $16,050. The chancery court did not explicitly address the workshop in the divorce decree. However, in response to Celeste’s and Gary’s motions to reconsider, the chancery court found that the workshop constituted a fixture that passed with the property to Celeste.

¶ 7. Celeste and Gary also acquired several automobiles during the marriage. The chancery court awarded Celeste her personal vehicle, a 2007 Infiniti G35, and awarded Gary a 2006 Ford F-150, a 2005 Nissan Murano, and a 1997 Ford F-150. Gary testified that after he and Celeste separated, he withdrew money from the couple’s joint bank account to purchase the “2005 Infinity [sic].” Based on Gary’s testimony, the chancery court deducted the value of the Infiniti, $19,675, from the total cash assets subject to equitable distribution.

¶ 8. Both Gary and Celeste asked the chancery court to reconsider its calculation of the cash assets subject to equitable distribution. However, in its initial order regarding the motions to reconsider, the chancery court failed to address the issue. Sometime later, the parties determined that Gary was actually referring to his 2005 Murano, not Celeste’s 2007 Infiniti, in his testimony. Gary had withdrawn cash from the couple’s joint bank account to purchase the Murano, valued at $13,850.

¶ 9. Consequently, Celeste filed a motion to correct the judgment, arguing for the first time that the court had incorrectly deducted the value of the Infiniti instead of the Murano. The chancery court then entered an amended order on the motions to reconsider and ordered Gary to pay Celeste $9,837.50, or half of the value of the Infiniti.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Classification of Property

¶ 11. Gary argues that the chancery court erred in classifying Celeste’s 60 acres of inherited property as her separate property. Gary contends that the 60 acres converted to marital property by virtue of commingling.

¶ 12. For purposes of a divorce proceeding, marital property consists of “any and all property acquired or accumulated during the marriage.” Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994). Marital assets “are subject to an equitable distribution by the chancellor.” Id. However, “those assets attributable to a party’s separate estate prior to marriage are considered non-marital property [and are] not subject to equitable distribution.” Ory v. Ory, 936 So.2d 405, 411(¶ 13) (Miss.Ct.App. 2006) (citing Hankins v. Hankins, 866 So.2d 508, 511 (¶ 13) (Miss.Ct.App.2004)). “While this is the general rule, non-marital assets may lose their status as such if the party commingles the asset with marital property or uses [it] for familial benefit.” Id. (citing Johnson v. Johnson, 650 So.2d 1281,1286 (Miss.1994)).

¶ 13. It is undisputed that Gary maintained the property and paid the property taxes out of the couple’s joint checking account. At some point during the marriage, the Marters planted 49 acres of pine trees and 32 acres of hardwood trees on the property. The Marters enrolled in a Conservation Resource Program (CRP) with the federal government whereby they receive rental payments for the trees. However, the rental payments have always been directly deposited into Celeste’s separate checking account.

¶ 14. In support of his argument that the 60 acres Celeste inherited converted to marital property by virtue of commingling, Gary points to his maintenance of the property, the fact that the property is titled jointly, and the fact that he paid the property taxes from the couple’s joint checking account. As to Gary’s maintenance of the property, Celeste testified that Gary maintained the property, including occasional bush hogging. Additionally, Gary testified that he planted some trees on the property, although he acknowledged that Celeste’s brother planted the majority of the trees. Finally, Gary acknowledged that the rental payments for the trees were directly deposited into Celeste’s separate bank account. In a case with similar facts, our supreme court held that the husband’s act of planting trees on his wife’s inherited property did not convert the property to marital by virtue of commingling. Hankins v. Hankins, 729 So.2d 1283, 1286-87 (¶¶ 14-15) (Miss.1999); see also Ory, 936 So.2d at 411 (¶ 15) (rejecting husband’s argument that wife’s separate property converted to marital because he “cleared a portion of the land, hauled dirt onto the property, and had a large number of seedlings planted on the property”). We see no reason to hold differently here where Gary acknowledged that Celeste’s brother planted the majority of the trees, the rental payments for the trees were deposited into Celeste’s separate bank account, and Gary’s maintenance efforts on the property were de minimis.

¶ 15. Gary also contends that because the property is jointly titled, it converted from Celeste’s separate property to marital. However, our supreme court has rejected the “title theory” and has stated that “[t]he issue in divorce is which property is ‘marital property,’ subject to equitable distribution, and that determination proceeds absent any presumption based on title.” Pearson v. Pearson, 761 So.2d 157, 163 (¶ 16) (Miss.2000). Consequently, we are not persuaded that Celeste’s separate property converted to marital by virtue of joint titling.

¶ 16. Additionally, Gary argues that Celeste’s separate property converted to marital because he paid taxes on the property from the couple’s joint checking account. However, this Court has previously held that property-tax payments are traceable and do not transmute separate property into marital. Brock v. Brock, 906 So.2d 879, 888 (¶ 50) (Miss.Ct.App.2005). Based on the above, the chancery court did not err in classifying Celeste’s 60 acres of inherited property as separate. This issue is without merit.

2. Valuation of Property

¶ 17. Gary argues that the chancery court erred in its valuation of the 120 acres. Gary also contends that the chancery court erred in failing to assign a value to his workshop.

¶ 18. Gary’s original Uniform Chancery Court Rule 8.05 financial statement valued the 120 acres at $55,000. Gary did not assign a value to the pine trees and hardwood, but he did include a disclaimer that his assigned value of $55,000 excluded the value of “28 forest acres.” Celeste testified that she agreed with Gary’s valuation. In 2010, Gary had the 120 acres appraised, and he amended his 8.05 financial statement to reflect the appraised value of the property. In his amended 8.05 financial statement, Gary valued the 120 acres, exclusive of the trees, at $215,000. Additionally, he valued 49 acres of pine trees at $61,904 and 32 acres of hardwood at $30,924.96.

¶ 19. The chancery court valued the 120 acres at $110,000. Presumably, the chancery court intended this amount to account for the “forest acres” as well because it did not value them separately. However, there is no explanation in the chancery court’s order as to how the court arrived at its valuation for the 120 acres.

¶ 20. This Court has previously stated that “[i]t is the chancellor’s responsibility in a divorce proceeding to make an adequate investigation into the value of the marital property that is subject to division[.]” Jenkins v. Jenkins, 67 So.3d 5,13 (¶ 19) (Miss.Ct.App.2011). “Property division should be based upon a determination of [the] fair market value of the assets, and these valuations should be the initial step before determining division.” Id. (quoting King v. King, 946 So.2d 395, 403 (¶ 20) (Miss.Ct.App.2006)). Expert testimony regarding valuation is not required in every case, and a chancery court’s findings on valuation “may be accomplished by adopting the values cited in the parties’ 8.05 financial disclosures, in the testimony, or in other evidence.” Id. (quoting Horn v. Horn, 909 So.2d 1151,1165 (¶49) (Miss.Ct. App.2005)). However, there must be “some evidentiary support in the record” for the chancery court’s valuation judgments. Id. at 13 (¶ 20) (quoting Dunaway v. Dunaway, 749 So.2d 1112, 1121 (¶28) (Miss.Ct.App.1999)). Based on our careful review of the record, there is no evidence supporting the chancery court’s valuation of the 120 acres at $110,000.

¶ 21. Gary also argues that the chancery court erred in finding that his workshop constituted a fixture that passed with the 120 acres awarded to Celeste. Gary valued the workshop at $16,050 on his amended 8.05 financial statement. The chancery court did not account for the workshop or its value in the divorce decree. In her motion to reconsider, Celeste asked the court to address the ownership of the workshop, given that Gary had allegedly expressed an intent to remove it from the property. In its order regarding the motions to reconsider, the chancery court found that the workshop passed with the property awarded to Celeste, but the court did not assign any value to it. Therefore, we can only assume that the chancery court intended the $110,000 value assigned to the 120 acres to also encompass the value of the workshop. However, as stated previously, the chancery court provided no explanation as to how it arrived at the $110,000 value.

¶ 22. Accordingly, we reverse the chancery court’s judgment and remand this case for a valuation of the 120 acres that accounts for both the value of the trees and the workshop.

3. Motion to Correct Judgment

¶ 23. Gary argues that the chancery court failed to comply with Rule 60 in amending its order regarding the motions to reconsider. Specifically, Gary asserts that because the trial record had been transmitted to the supreme court, the chancery court was required to seek leave from the appellate court before entering its amended order. Because it failed to do so, Gary contends that the chancery court was without jurisdiction to amend its order. While we agree that the chancery court was without jurisdiction to amend its order, we do not agree with Gary’s reasoning.

¶ 24. In Celeste’s motion to correct, she sought to alter the chancery court’s judgment to properly reflect a deduction for Gary’s purchase of his Murano using the couple’s cash assets. We note that Celeste did not indicate in her motion what rule of civil procedure she was proceeding under. Our supreme court has previously stated that “it is ‘reasonable to consider a party’s motion for reconsideration as one under Rule 60(b)’ when the motion does not state that it was brought under Rule 59 [of the Mississippi Rules of Civil Procedure] and was filed more than ten days after the entry of [a] final judgment in the case.” Carlisle v. Allen, 40 So.3d 1252, 1260 (¶33) (Miss.2010) (quoting Cannon v. Cannon, 571 So.2d 976, 978 (Miss.1990)). Accordingly, “[h]ow a court treats a motion for reconsideration turns on the time at which the motion is served.” Id. (quoting Cannon, 571 So.2d at 978 n. 2). “If the motion is served within ten days of the rendition of judgment, the motion falls under Rule 59(e). If it is after that time, it falls under Rule 60(b).” Id. (quoting Cannon, 571 So.2d at 978 n. 2). Because Celeste’s motion to correct was filed more than ten days after the court entered its amended order regarding the motions to reconsider, it should be treated as a Rule 60 motion.

¶25. Gary’s argument regarding the jurisdictional limitations of Rule 60 ignores Rule 4(d) of the Mississippi Rules of Appellate Procedure. Under Rule 4(d), a timely notice of appeal is suspended pending the disposition of certain post-trial motions. See M.R.A.P. 4 cmt. Rule 4(d) provides in pertinent part:

If any party files a timely motion of a type specified immediately below[,] the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure (1) for [a] judgment under Rule 50(b); (2) under Rule 52(b) to amend or make additional findings of facts, whether or not granting the motion would alter the judgment; (3) under Rule 59 to alter or amend the judgment; (4) under Rule 59 for a new trial; or (5) for relief under Rule 60 if the motion is filed no later than 10 days after the entry of [the ] judgment. A notice of appeal filed after announcement or entry of the judgment but before disposition of any of the above motions is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the entry of the order disposing of the last such motion outstanding.

(Emphasis added). Consequently, under Rule 4(d), a trial court retains jurisdiction to grant a Rule 60 motion provided the motion is filed within ten days after the entry of the judgment, even though a notice of appeal has been filed. However, Celeste filed her Rule 60 motion nearly two months after the chancery court entered its order regarding the motions to reconsider; therefore, Rule 4(d) does not apply, and the chancery court lacked jurisdiction to grant the motion following Gary’s notice of appeal. As such, we vacate the chancery court’s amended order on the motions to reconsider.

¶ 26. THE JUDGMENT OF THE CHANCERY COURT OF GRENADA COUNTY IS AFFIRMED IN PART; REVERSED AND REMANDED IN PART; AND VACATED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEE.

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

      . The court awarded Celeste the remaining 60 acres of property in its equitable division of the assets. Therefore, Celeste received the entire 120 acres, 60 as a result of equitable distribution and 60 as a result of the court's finding that they were her separate property.

      . In his motion to reconsider, Gary argued that the chancery court erred in reducing the couple’s cash assets by the current value of Celeste’s Infiniti ($19,675) rather than the price paid for the Infiniti in cash ($38,000). In her motion, Celeste argued that the chan-eery court erred in deducting the value of the Infiniti because the Marters had purchased the car prior to their separation. Consequently, Celeste asked the court to return $19,675 to the marital cash assets and reconsider its equitable distribution of the marital assets.

      . Celeste’s 8.05 financial statement valued the 120 acres at $50,000 and did not include a valuation for the trees.

      . Gary did not value the workshop in his original 8.05 financial statement.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    Geraldstine MILLER on behalf of the Wrongful Death Heirs of Grover D. MILLER, Appellant v. ENGELHARD CORPORATION, Mearl Corporation, and Continental Mineral Processing, Appellees.
    No. 2011-CA-00986-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      William M. Cunningham Jr., Michael Espy, Jackson, Jack W. Harang, attorneys for appellant.
    Spence Flatgard, J. Chase Bryan, Colleen S. Welch, Jackson, attorneys for ap-pellees.
    Before IRVING, P.J., RUSSELL and FAIR, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Grover D. Miller died from injuries allegedly resulting from his exposure to silica, silica dust, and other toxic substances while employed at Cataphote, Inc. On December 30, 2002, Geraldstine Miller, Grover’s wife, filed a wrongful-death suit in the Copiah County Circuit Court. The lawsuit named 158 corporations as defendants and an unspecified number of “John Doe” defendants.

¶ 2. On July 19, 2005, Geraldstine filed an amended complaint. This complaint named 108 corporate defendants along with an unspecified number of John Doe defendants. Additionally, the complaint added defendants A-Z, AA-BB, AAA-ZZZ, and AAAA-ZZZZ. Numerous defendants from the original complaint were not named in the amended complaint. Consequently, the circuit court entered an order dismissing these defendants without prejudice on July 20, 2005. Of the remaining defendants, 58 were named for the first time in the amended complaint, including Engelhard Corporation, Mearl Corporation, and Continental Mineral Processing.

¶ 3. Several of the newly named defendants, including Engelhard, moved for summary judgment. The defendants argued that the claims against them did not relate back to the filing of the original complaint and, as a result, were barred by the statute of limitations. The circuit court agreed and granted summary judgment.

¶ 4. Feeling aggrieved, Geraldstine argues that the circuit court erred in granting summary judgment based on the expiration of the statute of limitations. Finding no error, we affirm.

FACTS

¶ 5. Grover worked at Cataphote from 1993 to 1996. Cataphote manufactured glass beads from a glass-dust mixture that allegedly contained silica and other toxic substances. According to the complaint filed by Geraldstine, Grover suffered from lung disease, pneumonitis, pulmonary fibrosis, and other respiratory conditions as a result of his exposure to silica and other harmful substances. Grover died on October 21, 2002.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. Geraldstine argues that the circuit court erred in granting summary judgment based on the expiration of the statute of limitations. She contends that Engel-hard was properly substituted in accordance with Rule 9(h) of the Mississippi Rules of Civil Procedure, and, therefore, her amended complaint relates back to December 31, 2002 — the date she filed her original complaint.

¶ 8. Rule 9(h) sets forth the procedure for naming fictitious parties:

When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.

The Mississippi Supreme Court has explained that “[t]he purpose of Rule 9(h) is to provide a mechanism to bring in responsible parties, known, but unidentified, who can only be ascertained through the use of judicial mechanisms such as discovery.” Bedford Health Props., LLC v. Estate of Williams, 946 So.2d 335, 341 (¶ 13) (Miss.2006) (quoting Doe v. Miss. Blood Servs., 704 So.2d 1016, 1019 (¶14) (Miss.1997)). However, Rule 9(h) does not permit a plaintiff to “include a fictitious party because the plaintiff suspects that there might be someone out there who might have engaged in conduct which might be actionable.” Veal v. J.P. Morgan Trust Co., N.A., 955 So.2d 843, 846 (¶ 10) (Miss.2007). “Rule 9(h) is not intended to serve as an insurance policy to plaintiffs who wish to protect themselves in case they discover new defendants in the course of litigation.” Id. at 845 (¶ 9).

¶ 9. A proper amendment under Rule 9(h) “relates back to the date of the original pleading.” M.R.C.P. 15(c)(2). However, a plaintiff may not “characterize the joinder of a new party after the running of the statute of limitations as a substitution for a fictitious party.” Doe, 704 So.2d at 1018 (¶ 10).

¶ 10. In Doe, the plaintiff filed a wrongful-death action against United Blood Services of Mississippi (United), American Association of Blood Banks, and John Does 1-50. Id. at 1017 (¶ 4). Later, the plaintiff moved to dismiss United and to join Mississippi Blood Services, Inc. (MBS). Id. at (¶ 5). The plaintiff then filed an amended complaint naming MBS as a defendant. Id. The supreme court held that “[t]he plaintiff [had] failed to properly substitute [MBS] for a fictitious party.” Id. at 1017-18 (¶ 7). The court noted that “[t]he amended complaint simply replaced all references to [United] with [MBS]. All fifty unnamed fictitious defendants remained.” Id. at 1018 (¶ 8).

¶ 11. Geraldstine has attempted to add new defendants in the same manner as the plaintiff in Doe. On December 30, 2002, Geraldstine filed her original complaint, which named 158 corporations as defendants and an unspecified number of John Doe defendants. On July 19, 2005, Gerald-stine filed an amended complaint, which named 108 corporate defendants and an unspecified number of John Doe defendants. The amended complaint also added defendants A-Z, AA-BB, AAA-ZZZ, and AAAA-ZZZZ. While numerous defendants from the original complaint were not named in the amended complaint, 53 defendants, including Engelhard, were named for-the first time. Geraldstine did not substitute any newly named defendant for a fictitious one. Her amended complaint contained the same reference to an unspecified number of John Does and added the alphabetical fictitious defendants. Geraldstine simply substituted a set of new defendants for some of the named defendants in the original complaint without omitting any fictitious party. The addition of new parties in this manner in not a proper substitution under Rule 9(h). Therefore, the circuit court did not err in finding that Engelhard was not properly substituted pursuant to Rule 9(h).

¶ 12. Because Engelhard was not properly substituted, Rule 15(c)’s relation-back provision for Rule 9(h) substitutions does not apply. However, an amended complaint may relate back, notwithstanding an improper substitution, where Rule 15(c)’s other requirements are met. Wil-ner v. White, 929 So.2d 315, 323 (¶ 8) (Miss.2006). Those requirements are:

(1) the claim in the amended complaint must arise out of the same conduct, transaction, or occurrence as that set forth in the original complaint; (2) the newly named defendant must have received notice of the action within the period provided by [Rule] 4(h) [of the Mississippi Rules of Civil Procedure] such that the party will not be prejudiced; and (3) the newly named defendant must have or should have known that an action would be brought against him but for a mistake existing as to the parties’ identities.

Id. (citing M.R.C.P. 15(c)). Geraldstine has made no attempt to argue that she complied with any of these Rule 15(c) requirements. Therefore, the circuit court did not err in determining that her amended complaint did not relate back to her original complaint.

¶ 13. Because Geraldstine’s amended complaint did not relate back, her claims against Engelhard are barred by the three-year statute of limitations. It is uncontested that the limitations period began to run on March 16, 2001. On that day, Grover executed an affidavit in connection with his workers’ compensation claim against Cataphote. In his affidavit, Grover averred that he knew what harmful substances had injured him:

Catophote, Inc. [sic], produced glass beads of various sizes from a fine glass[-]dust mixture of which I now have knowledge that its principle component was silica. Cataphote, Inc. also used other chemicals, [of] which I now have knowledge that they are toxic and included[,] but are not limited to[,] toxic chlorides, dioxides, benzenes, and lead.
I am now aware that products I was exposed to at Cataphote, Inc. contributed to the symptoms described due to absorption of their products into my skin through ingestion and inhalation of the products and fumes.

Geraldstine filed her amended complaint, naming Engelhard as a defendant, on July 19, 2005 — over one year past the expiration of the limitations period. Consequently, the circuit court did not err in granting summary judgment in favor of Engelhard. This issue is without merit.

¶ 14. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT 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.

      . For purposes of this opinion, we will refer to Engelhard, Mearl, and Continental collectively as "Engelhard.”

      . In its order, the circuit court included a certification under Rule 54(b) of the Mississippi Rules of Civil Procedure, finding that there was no just reason for delay and directing a final judgment as to some of the defendants. Consequently, the circuit court's order is a final appealable judgment and properly before this Court.

      . The July 19, 2005 complaint was actually Geraldstine’s second amended complaint. She filed her first amended complaint on June 26, 2003. However, that complaint was amended solely for the purpose of making more specific factual allegations. The named defendants remained unchanged from the original complaint.


author: BARNES, J.,

text:
    Phillip BROWN, II, Brenda Brown Gordon, Dorothy Jean Love, Rosalynn Naylor, Charles Naylor, Crystal Naylor, and Glen Brown, Appellants v. John V. TATE, Jr., Successor in Interest to Ponta Properties, Inc., Appellee.
    No. 2011-CA-00335-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.
    Leslie C. Gates, attorney for appellants.
    J. Michael Corrigan, attorney for appel-lee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. This case arose when Ponta Properties Inc. (Ponta) filed a complaint in the Lauderdale County Chancery Court in May 2005 for a partition of real property against A. Phillip Brown II (A.P. Brown), Charles Naylor, Crystal Naylor, Rosalynn Naylor, Glen Brown, Brenda Brown Gordon, Billy Jean Brown, Dorothy Jean Love, Arthur Love, and Alfreda King (Defendants), who each owned an interest in the subject property. Tate contends that all of the Defendants but one, Brenda Gordon, were properly served with process under Mississippi Rule of Civil Procedure 81, either personally or by notice of publication, and summoned to appear at the chancery court for a hearing in July 2005. However, only one Defendant appeared at the hearing. No action was taken at the hearing, and no order of continuance was filed. Five years later, in August 2010, realizing Brenda Gordon had mistakenly not been served with a summons, Tate personally served her with a summons to appear at a hearing on November 22, 2010. She appeared pro se and claimed the hearing was unfair; so the chancellor continued the hearing until January 81, 2011. In January, neither Brenda Gordon nor any of the other Defendants appeared at the hearing to contest the action; therefore, the chancery court entered a judgment against them, ordering the property partitioned by sale. The remaining Defendants in the action filed a motion to reconsider, objecting to the chancellor’s ordering a partition by sale instead of a partition in kind. Additionally, they claimed that they had not been properly served or given notice of the proceedings. The chancery court overruled the motion, and the Defendants appealed.

¶ 2. Rule 81 provides special procedures for certain types of proceedings enumerated in Rule 81(d)(l)-(2), which includes partition actions. For these special proceedings, Rule 81(d)(3)-(4) provides: “Complaints and petitions filed ... shall not be taken as confessed.... No answer shall be required ... but any defendant or respondent may file an answer or other pleading or the court may require an answer if it deems it necessary to properly develop the issues.” Regarding the proper procedure for a summons, Rule 81(d)(5) provides that upon filing the action:

summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent. The court may by order or rule authorize its clerk to set such actions or matters for original hearing and to continue the same for hearing on a later date.

(Emphasis added.) We find the entry of judgment against these Defendants was in error as no new Rule 81 summons was issued; accordingly, we reverse the judgment and remand the case to the chancery court for further proceedings consistent with this opinion.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 3. On May 20, 2005, Ponta filed a complaint for partition of real property against the Defendants, each of whom at that time owned an undivided interest in the subject property. Ponta claimed that the property was not susceptible to partition in kind; instead, a partition by sale should be ordered, whereby the court would sell the property and partition the proceeds among the owners in accordance with their various ownership interests.

¶ 4. On June 1, 2005, a summons was issued under Rule 81 for the out-of-state Defendants, A.P. Brown, Glen Brown, Billy Jean Brown, Dorothy Jean Love, Arthur Love, and Alfreda King, who were given notice to appear and defend at the Lauderdale County Chancery Court on July 20, 2005. Notice of the action was also published in a local newspaper, The Meridian Star, three times in June 2005. Also, on June 1, Rule 81 summonses for the July hearing were issued to in-state Defendants Charles Naylor, Crystal Nay-lor, and Rosalynn Naylor as well. The record indicates that all of the in-state Defendants were served with process on June 3, 2005. Because of a mistake later admitted by Tate, another in-state Defendant, Brenda Brown Gordon, was not issued a summons for the July 20 hearing. On July 20, 2005, the hearing was held on the partition, but the only defendant to appear was A.P. Brown, who was represented by counsel. However, no action was taken at the hearing, and no continuance was filed.

¶ 5. The chancery court docket shows no activity in the case for over five years, until August 2010, when a Rule 81 summons was personally served on Brenda Gordon, advising her of a hearing on November 22, 2010. Additionally, on October 5, 2010, a certified letter was sent to A.P. Brown from counsel for John Tate Jr., notifying Brown that Tate had purchased Ponta’s interest in the property, as well as the interests of Arthur Love, Billy Brown, and Alfreda King, giving Tate an undivided two-thirds ownership interest in the property. The letter also advised A.P. Brown, as well as three other defendants, that there would be a hearing on November 22, 2010 in the chancery court, where Tate would seek to obtain an order to sell the property at the courthouse to the highest bidder, and for the proceeds to be divided among the owners. But, Tate issued no formal summonses for this hearing to any of the other Defendants except Brenda Gordon.

¶ 6. At the November 22, 2010 hearing, Brenda Gordon was the only defendant to appear. An agreed order was entered continuing the November 2010 hearing until January 31, 2011. Also, Tate filed motions, applications, and supporting affidavits for default judgments against Defendant A.P. Brown for failure to appear at the November 22, 2010 hearing, and against Defendants Dorothy Love and Glen Brown for failing to appear at the July 20, 2005 hearing. The chancery clerk made an entry of default against these Defendants under Mississippi Rule of Civil Procedure 55(a).

¶ 7. The record shows no formal summonses were issued to any Defendants for the January 31, 2011 hearing, and not surprisingly, no Defendants appeared. The chancellor entered a judgment ordering partition of the property by sale on March 25, 2011. He found that the remaining Defendants — A.P. Brown, Glen Brown, Brenda Gordon, Charles Naylor, Crystal Naylor, Rosalynn Naylor, and Dorothy Love — had been properly served with process, and that the only objection to the sale was by Brenda Gordon during her court appearance in November 2010. On February 11, 2011, Brenda Gordon filed a pro se motion for reconsideration because the order “was unfair and unconstitutional.” The chancellor overruled her motion as untimely under Mississippi Rule of Civil Procedure 59.

¶ 8. On February 22, 2011, Leslie Gates, counsel on behalf of all of the Defendants, filed a “motion to set aside default and default judgment,” and for relief from the January 2011 judgment under Mississippi Rule of Civil Procedure 60, arguing that, under the circumstances, a partition in kind would be more practical than a partition by sale. Also, out-of-state Defendants A.P. Brown, Glen Brown, and Dorothy Love “specially appeared” in the motion, contending that they had not been properly served with a summons; thus, the chancery court did not have jurisdiction to enter judgment against them. These Defendants argued that Mississippi law authorizing publication summonses in this case was unconstitutional, and that although copies of the summonses were mailed to them, they did not receive actual notice of the action. Also, regarding the alleged default of these three Defendants, it was noted that while Tate published notice for them to appear in chancery court in July 2005, the action was not heard at that time, and there was no order of continuance entered in July 2005. Further, the motion noted that there were no additional court notices to Dorothy Love or Glen Brown, though A.P. Brown did receive notice to appear in court on November 22, 2010. The Defendants argued that under Rule 81, the original summonses lapsed when there was no order entered and no continuance granted on the original hearing date of July 20, 2005; thus, in the absence of another summons, the chancery court lost jurisdiction over Dorothy Love, Glen Brown, and A.P. Brown.

¶ 9. A hearing was held, and on March 1, 2011, the chancery court overruled the motion to set aside the default judgment and other relief, finding that all of the Defendants were properly served with process. The Defendants appealed. On March 3, 2011, the property was sold at public auction to Tate, who was the highest bidder, for the sum of $48,350.

ANALYSIS

¶ 10. The Defendants make several arguments against the propriety of the chancery court ordering the property’s partition by sale. However, because we reverse and remand in favor of the Defendants, we do not find it necessary to discuss each of their arguments. Generally, the Defendants argue that the final judgment was actually a “form of’ default judgment against them, in particular Dorothy Love, Glen Brown, and A.P. Brown. They claim it was fundamentally unfair to enter a default in this situation because no answer is required under Rule 81, and they were not summoned to appear on a certain return date. Additionally, there was no evidence that at the July 20, 2005 hearing the Defendants were called in court, the hearing was continued, or any action was taken. Furthermore, Tate requested the default judgment five years later. The pertinent issue, however, is whether, in the absence of an order entered at the hearing or a continuance after a Rule 81 summons has been issued, the Defendants should have been reserved with a new Rule 81 summons. We find that they should have been.

¶ 11. First, we note the chancellor’s final judgment was not a default judgment, but a judgment on the merits. Partition actions are governed by the special procedures of Rule 81(d). For Rule 81 matters, complaints and petitions may not be taken as confessed, and no answer is required unless ordered by the court. M.R.C.P. 81(d)(3)-(4). In Saddler v. Saddler, 556 So.2d 344, 345 (Miss.1990), the Mississippi Supreme Court noted that in Rule 81 cases a default judgment is improper because no answer is required to be filed. Additionally, Rule 81(d)(5) requires the issuance of a summons commanding the defendant to appear and defend at a time and place that the action is to be heard, thereby precluding default judgment. Saddler, 556 So.2d at 346. Here, there was no “default” language in the order. Regardless, a default judgment is not allowed in this case, even though Tate completed the first of a two-step procedure for default against Dorothy Love, Glen Brown, and A.P. Brown in October and November 2010.

¶ 12. Second, Tate should have served a new Rule 81 summons on the remaining Defendants for the November 22, 2010 hearing. Instead, the only notice of the hearing was a letter dated October 5, 2010, from Tate’s counsel to A.P. Brown, who appeared pro se. It was also intended that the letter give notice to Deborah Brown, Glen Brown, and Brenda Gordon, all of whom Tate’s counsel said A.P. Brown “represented.” However, the notice does not comply with Rule 81’s procedures for summons. It was necessary that another formal Rule 81 summons be issued against all of the remaining Defendants.

¶ 13. Rule 81(d)(5) provides that “[i]f such action or matter is not heard on the day set for hearing, it may by order signed on that day be continued to a later day for hearing without additional summons on the defendant or respondent.” However, the Mississippi Supreme Court has held that a central consideration under Rule 81 is the adequacy of the notice of the date, time, and place of the hearing. Vincent v. Griffin, 872 So.2d 676, 678 (¶ 5) (Miss.2004). In Vincent, a former wife filed a motion for contempt, seeking to enforce past due child support. Id. at 677 (¶ 1). A Rule 81 summons was issued for David Vincent informing him of the time and date of the hearing. Vincent appeared (pro se), but the case was continued twice, after which Joan Griffin’s counsel sent Vincent a letter and agreed order to set a trial date. Vincent, 872 So.2d at 677 (¶¶ 2-3). Vincent never responded to this letter. Id. at (¶ 3). Griffin’s attorney filed a motion for notice of the trial date, and the chancellor set the date. Id. at (¶¶ 3-4). Vincent claimed he never received notice of the trial date, and he did not appear at trial. Id. at (¶ 4). A contempt judgment was entered against Vincent. Id. This Court originally affirmed the chancellor’s judgment, and interpreted Rule 81(d)(5) to suggest that “no further notice is required once a defendant has been served with a Rule 81 summons.” Id. at 678 (¶ 5) (quoting Vincent v. Griffin, 852 So.2d 620, 623 (¶6) (Miss.Ct.App. 2003)). The supreme court reversed, holding that in that Rule 81 action, service on Vincent by mail of notice of the hearing did not satisfy the requirements of due process under the circumstances, and an additional Rule 81 summons for Vincent was necessary. Vincent, 872 So.2d at 678 (¶¶ 6, 8). Importantly, the supreme court noted that Vincent “was not given notice of a definite hearing date at the time of the last continuance.” Id. at (¶ 6). He did not appear, and a judgment was entered against him; but he was denied the opportunity to challenge the ruling. Id. The supreme court concluded that “[t]he more reasonable interpretation of [Rule] 81(d)(5) is that an additional summons is not required where by order entered that day the proceedings are continued to a later date certain.” Id. at (¶ 8) (emphasis added).

¶ 14. The supreme court in Vincent cited to Caples v. Caples, 686 So.2d 1071 (Miss.1996), in support of its holding. Vincent, 872 So.2d at 678 (¶ 7). In Capíes, the supreme court also ruled that “[t]he proper procedure under Rule 81 would have been to serve [the respondent] an additional Rule 81 summons.” Capíes, 686 So.2d at 1074. Capíes dealt with a motion for modification of joint child custody. Id. at 1072. Even though the respondent/husband was served with an improper Rule 81(d) summons that did not contain the time and place of the hearing and required a written answer to the complaint, he did initially appear in court. Id. at 1074. However, the hearing was recessed indefinitely due to a pending jurisdictional decision in another court, and there was no discussion of the merits. Id. at 1072,1074. Several months later, the matter was reconvened; but the husband did not appear, and the chancellor entered judgment against him. Id. at 1072. On appeal, the husband argued that he was not given notice, resulting in a denial of due process. The supreme court found there was no order setting a specific date for further proceedings entered on the date the hearing was continued; thus, the husband should have been served with another Rule 81 summons. Id. at 1074.

¶ 15. Additionally, in Serton v. Serton, 819 So.2d 15, 21 (¶24) (Miss.Ct.App.2002), this Court applied the precedent set in Capíes and stated: “Service by mail, without an accompanying summons issued in accordance with the dictates of Rule 81(d)(5), does not provide the requisite service of process which will enable the court to act.” (Citing Capíes, 686 So.2d at 1074). Relatedly, this Court reiterated the holding of Vincent in its discussion of the special requirements of a Rule 81 summons in Bailey v. Fischer, 946 So.2d 404, 407 (¶ 11) (Miss.Ct.App.2006), stating: “If no such order is entered [on the day of the initially scheduled hearing], there should be a new Rule 81 summons.” (Citing Vin cent, 872 So.2d at 678 (¶8)). “The clear purpose of Rule 81 is to give notice of new proceedings in dormant litigation in the manner that the state Supreme Court views as proper form and procedure to satisfy constitutional due process.” Bailey, 946 So.2d at 408 (¶ 18).

¶ 16. As in Vincent and Capíes, here, initial Rule 81 summonses were served on all of the Defendants, and one Defendant appeared. However, the initial hearing was continued or recessed without addressing the merits of the case and without entry of an order or continuance. Thus, the appearing Defendant would have no further notice of another hearing date. Additionally, in Vincent, as here, opposing counsel sent a letter to the respondent/defendant as notice of a new trial/hearing date. However, notice by letter is inadequate under the formal summons procedures of Rule 81(d)(5).

¶ 17. If the July 20, 2005 hearing had gone forward, or an order had been entered continuing the hearing to a later date certain, no additional Rule 81 summonses would have been necessary, and the January 2011 judgment would stand. However, when the case was not addressed on the merits, and there was no type of order or continuance entered, the chancellor should have required additional service of Rule 81 summonses on all of the remaining Defendants before holding the November 22, 2010 hearing. Because of the lack of notice to the remaining Defendants, the judgment for partition by sale must be reversed, and the case remanded to the chancery court.

CONCLUSION

¶ 18. For the above reasons, we reverse the judgment, and remand the case to the chancery court for proceedings consistent ■with this opinion.

¶ 19. THE JUDGMENT OF THE LAUDERDALE COUNTY CHANCERY COURT IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

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

      . John Tate Jr. later bought Ponta’s interest in the property.

      . The record indicates that the notices were sent via certified mail, postmarked June 1, 2005, from the Lauderdale County Chancery Clerk’s Office to each of the Defendants. Glen Brown’s and A.P. Brown’s notices were returned "not deliverable as addressed.” Dorothy Love’s and Arthur Love's notices were stamped "unclaimed." However, Defendants Billy Brown and Alfreda King accepted delivery of their mailing. Ponta claims that all service of process for the nonresident Defendants was completed by July 6, 2005.

      . As indicated in the chancery court’s March 2, 2011 order, there are no transcripts of this hearing or any of the other subsequent proceedings.

      . The record shows A.P. Brown signed for receipt of this letter on October 8, 2010.

      . Since selling their interests in the property to Tate, these three individuals are no longer a part of this action.

      .The letter stated that A.P. Brown had advised Tate that he was representing himself, as well as Defendants Glen Brown, Brenda Gordon, and Deborah Naylor. In their brief, the Defendants in this appeal explained that Deborah Naylor, who is also mentioned in some other motions by mistake, had no interest in the subject property because she was deceased before the complaint was filed. She was not named as a Defendant in the complaint because at the time of the complaint’s filing, Deborah’s interest had passed to her husband, Charles Naylor, and her children, Rosalynn and Crystal Naylor.

      . Tate admits no formal Rule 81 summons was issued to A.P. Brown for this hearing, as he had already made a personal appearance in court at the July 20, 2005 hearing.

      . Tate claims Brenda Gordon appeared at this hearing pro se and requested time to obtain an attorney to represent her in the case, hence the continuance.

      . Brenda Gordon and the three Defendants who had already sold their interest in the property to Tate — Billy Brown, Arthur Love, and Alfreda Bang — did not have a motion for a default judgment filed against them.

      . In the January 2011 order, the chancellor did not specifically enter a default judgment against any of the Defendants, but the Defendants considered it as one.

      .As stated earlier, the record shows these three Defendants' notices were by certified mail and returned undelivered to the chancery court.

      . Obtaining a default judgment under Mississippi Rule of Civil Procedure 55 is a two-step process. Billy G. Bridges & James W. Shelson, Warner’s Griffith, Mississippi Chancery Practice § 256b (2000 ed.). "First, entry of default must be entered by the clerk of the court,” which is obtained through a motion and supporting affidavits. Then, "the plaintiff must obtain a default judgment from the court.” Id. Here, while Tate filed the proper motions and affidavits, the chancery court never entered a default judgment.

      . There is no evidence that A.P. Brown was an attorney, and that he could represent anyone in court other than himself.


author: GRIFFIS, P.J., CARLTON, J., MAXWELL, J.,

text:
    Carolyn JONES, Appellant v. Anthony GRAPHIA, Appellee.
    No. 2011-CA-00984-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      George W. Healy IV, Gulfport, Cassidy Lee Anderson, attorneys for appellant.
    W. Stewart Robinson, attorney for ap-pellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Two unmarried, romantically involved people bought a house together as joint tenants. The man paid the purchase price for the home, and the woman paid nothing. Later when the relationship soured, he filed suit in chancery court to partite the property. The chancellor awarded him the entire amount he had paid for the house, giving his former lover and joint tenant nothing. She appeals. Finding no error in the chancellor’s judgment, we affirm.

FACTS

¶ 2. Anthony Graphia and Carolyn Jones were romantically involved, but never married. Each lived in Louisiana. On March 26, 2010, they purchased a home in Dia-mondhead in Hancock County, Mississippi, as joint tenants with the right of survivor-ship, and not as tenants in common. Graphia and Jones had dated for two years prior to buying the home. It was their intention at the time to marry and live in the Mississippi home.

¶ 3. It was undisputed that the purchase price of the home, $274,000, was paid entirely by Graphia. He also paid all the utilities, the insurance, the taxes, and the dues for the property owners’ association. Jones testified that she helped decorate the home, hung draperies, and used some of her furnishings in the home.

¶ 4. The relationship waned, after which Graphia filed suit in Hancock County Chancery Court to partition the property. Graphia contended that the property was incapable of division in kind, and that even if it were, that he should be allowed an equitable adjustment since he alone purchased the property. Jones answered denying the allegations. Jones filed a motion for summary judgment claiming that the parol-evidence rule would not allow a court to look beyond the language of the deed, which names the parties as joint tenants with rights of survivorship.

¶ 5. In her motion for summary judgment, Jones argued that as a joint tenant she was entitled to a share of the funds from the sale of the home. She cited Thornhill v. Chapman, 748 So.2d 819 (Miss.Ct.App.1999), for the proposition that the chancellor should not have allowed Graphia to testify about how much he paid for the property, as that was a violation of the parol-evidence rule. The summary-judgment motion was denied, and a trial was held, after which the chancellor ruled that he could adjust the equities between the parties pursuant to Mississippi Code Annotated section 11-21-9 (Rev.2004). Further, the chancellor applied Mississippi Code Annotated section 11-21-33 (Rev. 2004), which allows the chancellor to use owelty in a partition action, and awarded Graphia $274,000, the amount of the purchase price. The chancellor allowed Jones to retrieve any personal belongings remaining in the home.

STANDARD OF REVIEW

¶ 6. This Court has a limited standard of review in appeals from the chancery court. Tucker v. Prisock, 791 So.2d 190, 192 (¶ 10) (Miss.2001). The standard of review of a chancellor’s decision is abuse of discretion. Creely v. Hosemann, 910 So.2d 512, 516 (¶ 11) (Miss.2005). An appellate court “will not disturb the factual findings of a chancellor when supported by substantial evidence unless we can say with reasonable certainty that the chancellor abused his discretion, was manifestly wrong, clearly erroneous[,] or applied an erroneous legal standard.” Biglane v. Under the Hill Corp., 949 So.2d 9, 13-14 (¶ 17) (Miss.2007) (quoting Cummings v. Benderman, 681 So.2d 97, 100 (Miss.1996)). However, on questions of law, appellate courts employ a de novo standard of review. Id.; Tucker, 791 So.2d at 192 (¶ 10).

ANALYSIS

¶ 7. Before we address the issues in this appeal, we must discuss the peculiarities of the joint tenancy. The Mississippi Supreme Court has held that “the distinguishing characteristic of a joint tenancy is the right of survivorship.” In re Admin. of Estate of Abernathy, 778 So.2d 123, 129 (¶ 24) (Miss.2001) (citing Vaughn v. Vaughn, 238 Miss. 342, 349, 118 So.2d 620, 622 (1960)). By virtue of survivor-ship, the property descends outside of probate from the deceased joint tenant to the surviving joint tenant. John E. Cribbet, Principles of the Law of Property 99 (1975). The requirements for the creation of a joint tenancy with right of survivor-ship in land are governed by statute. Ownership of the whole and then taking the whole by survivorship are the outstanding features of owning property as joint tenants. Id. at 99. The decedent’s share does not have to pass to the survivor because the survivor already owns the whole. The usefulness of the joint tenancy as one property-law expert explained is that it serves as a “poor man’s probate.” Id. at 102.

¶ 8. With the above said about joint tenancy and its feature of survivorship, one point becomes clear about this case: Jones owned the whole along with Graphia while they were joint owners. However, when Graphia filed to partite the property, as joint tenants are allowed to do, then Jones’s interest was subject to division by the chancellor. Prior to the chancery proceeding, Jones enjoyed the ownership of the whole. Jones lost this enjoyment when Graphia, her joint tenant, filed for partition. Had Graphia died, Jones, as the only other joint owner, would have owned the whole by herself. But since there was no death, the joint tenants had to give testimony during the partition hearing concerning their contributions to buying the house.

¶ 9. We next turn to the decision of the chancellor to partite the property and give all of the sale proceeds to Graphia. Jones cites Johnson v. Johnson, 550 So.2d 416, 420 (Miss.1989), for the proposition that when a property owner agrees to own property jointly with another, the common law presumes that the owner intended to gift the one-half interest to the other property owner. First and foremost, Johnson was abrogated in Pearson v. Pearson, 761 So.2d 157, 163 (¶ 16) (Miss.2000), when the court noted that Johnson was pre-Fergu-son and that the Johnson holding was just an equitable way for a court to divide marital property. The Pearson court held that consideration of the Ferguson factors would now serve that function. Secondly, Pearson involved married individuals who had collected assets together for seventeen years, rather than an unmarried couple in a short relationship as in this case.

¶ 10. Jones argues that the chancellor erred when he found that Jones would be unjustly enriched if she were awarded any part of the partition sale.

¶ 11. The chancellor, as an alternative ground to his decision, found that awarding Jones an equal share of the purchase price, to which she contributed no purchase funds and very little sweat equity in the property, would unjustly enrich her. The chancellor found that Jones contributed nothing to the acquisition of the property and that she had no equity interest in the property. The chancellor cited Mississippi Code Annotated section 11-21-9, which allows him to determine all questions concerning title. “The court may adjust the equities between and determine all claims of the several cotenants as well as the equities and claims of encumbranc-ers.” Id.

¶ 12. We remain mindful of our limited standard of review with regard to a chancellor’s findings. Here we find no error of law or of fact. As joint tenants, either party could have filed for partition after the relationship soured. Graphia did so. Then, the duty fell to the chancellor to adjust the equities and determine the claims of the joint tenants. Here, we have two unmarried adults who titled property as joint tenants with the right of survivor-ship, and not as tenants in common. It was undisputed that Graphia paid the $274,000 purchase price for the home, plus utilities, insurance, club dues, and taxes. It was undisputed that Jones paid nothing. Had Graphia died, Jones would have bene-fitted from the joint tenancy and become the sole owner. However, as joint tenants are allowed to do, Graphia sought partition and allowed the chancellor to decide the issues. The chancellor found that Graphia should receive the total purchase price since he had paid it and that Jones should receive nothing since she had made no contribution. We find no error in the chancellor’s decision.

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

LEE, C.J., BARNES, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY FAIR, J.; IRVING, P.J., AND MAXWELL, J., JOIN IN PART. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

dissenting:

¶ 14. I respectfully dissent from the majority opinion wherein the majority allows the trial court to deviate from the statutory procedure in dividing the joint interest in real property upon the filing of a petition to partition. See Walker v. Williams, 84 Miss. 392, 36 So. 450, 451-52 (1904); see also Murphree v. Cook, 822 So.2d 1092, 1098-99 (¶21) (Miss.Ct.App. 2002) (This Court found the chancellor erred in divesting a co-tenant of his interest in property using such factors as original cost and subsequent cost of maintaining the property. The Court held that the right of partition created by statute is an absolute right of a tenant in common); see also Miss.Code Ann. § 11-21-11 (When considering partition in kind, the court may order a sale of the lands or any part thereof if sale would better promote the interest of all parties than a partition in kind or court may order sale when determining that equal division of the lands cannot be made.); Cox v. Kyle, 75 Miss. 667, 23 So. 518, 519 (1898) (Applying strict construction of partition statute).

¶ 15. The decision by this Court in Murphree, 822 So.2d at 1098-99 (¶¶21-22) is helpful to the resolution of the case before us today. In Murphree, this Court explained that the chancellor abused his discretion in attempting to fashion a unique remedy to sever a co-tenancy by ignoring statutes of the state defining the only lawful method available to accomplish that purpose. Id. In the case before us, if the chancellor determined that the lands were not subject to equal partition in kind or that the interest of the parties were served by a sale, then the chancellor should have equally divided any sale proceeds in accordance with each co-tenant’s respective joint interest. See generally MSPRAC-ENC § 60:100 (explaining that the equities that may be adjusted between the parties upon partition and cancellation of the joint title include adjustments such as rent, improvements to the property, payment of taxes, and other related expenses). The equities that may be adjusted upon partition of the property constitute equities that arise out of the cancellation of that joint title in the partition action. Hudson v. Strickland, 58 Miss. 186, 1880 WL 4849, 4-5 (1880); see also Moorer v. Willis, 239 Miss. 118, 129-30, 121 So.2d 127, 132 (1960) (The equities arising out of the cancellation of the title concern matters such as the collection of rents, payment of taxes, and costs of maintenance and upkeep.).

¶ 16. In this case, the chancellor considered disputes between the parties that exceeded those equities arising out of the cancellation of the title upon partition. The original purchase price related to the formation of the title, but it did not constitute an equity arising out of the cancellation of the title or partition after formation of the joint title. Graphia’s testimony that Jones agreed to give him fifty percent ownership of her town home in exchange for including her as a joint tenant on the property in dispute relates to a matter arising prior to formation of the joint title. I submit that nothing in the title of joint ownership provides that Jones’s joint interest was contingent upon some other such conveyance. However, Mississippi Code Annotated § 11-21-9 and precedent all recognize the chancellor’s authority to consider the equities arising out of the cancellation of the title in partition actions. The chancellor, and majority, properly recognized the chancellor’s authority in making adjustments relating to the maintenance of the property, such as taxes. Dailey v. Houston, 246 Miss. 667, 151 So.2d 919 (Miss.1963); see Miss.Code Ann. § 11-21-11. I submit that the chancellor exceeded the equities of the claims between the parties arising out of the cancellation of the title; therefore, I would reverse and remand for a new partition division by the chancellor. See Walker, 84 Miss, at 392, 36 So. at 451-52; Murphree, 822 So.2d at 1098-99 (¶¶ 21-22).

FAIR, J., JOINS THIS OPINION. IRVING, P.J., AND MAXWELL, J., JOIN THIS OPINION IN PART.

MAXWELL, J.,

dissenting:

¶ 17. This case concerns a partition sale of a house that Jones and Graphia owned as joint tenants with the right of survivor-ship. But instead of partitioning the property, the chancellor essentially performed an equitable distribution of the house, justifying his decision to award one joint tenant all the proceeds of a partition sale based primarily on the “putative-spouse doctrine.” Because Graphia was not a “putative spouse” — and was, thus, not entitled to an equitable distribution of the property he jointly owned with his girlfriend — I dissent.

¶ 18. The chancellor relied on Chrismond v. ChHsmond, 211 Miss. 746, 757, 52 So.2d 624, 629 (1951), Pickens v. Pickens, 490 So.2d 872 (Miss.1986), and Cotton v. Cotton, 44 So.3d 371 (Miss.Ct.App.2010), to hold he could look beyond joint ownership and consider each owner’s contribution to the accumulation of the property. But the Mississippi Supreme Court has made clear the equity power in Chrismond and Pick-ens does not extend to cohabitants, like Jones and Graphia, who never attempted a valid marriage. See Davis v. Davis, 643 So.2d 931, 934-36 (Miss.1994). While Jones and Graphia had intended to marry when they purchased the home as joint tenants, they were never married or ceremonially married. Thus, equitable distribution — which authorizes a chancellor to look beyond title and consider disparity in contribution to divest a joint owner of his or her interest in marital property, e.g., Ferguson v. Ferguson, 639 So.2d 921, 927 (Miss.1994) — simply was unavailable to the unmarried Graphia in his statutory partition action. And it was error for the chancellor to distribute the proceeds of the partition sale based on this doctrine.

¶ 19. The majority justifies the chancellor’s award on an alternative basis — the language in Mississippi Code Annotated section 11-21-9 (Rev.2004) that a chancellor “may adjust the equities between and determine all claims of the several coten-ants.” According to Graphia, this language authorized the chancellor to divest Jones of her right to equal ownership of the home or proceeds. I disagree. Section 11-21-9 does not, as the majority suggests, authorize chancellors to look beyond title when a joint tenant initiates a partition action. Rather, this statute concerns jurisdiction — allowing the chancellor to decide all ancillary issues between co-tenants to the partition action. See id.

¶ 20. I agree with Judge Carlton that “adjustment] of the equities,” as contemplated by section 11-21-9, authorizes chancellors to use a cotenant’s otherwise equal share of proceeds to offset what he owes his cotenant for rent, improvement costs, taxes, or other similar debts. However, this language does not grant chancellors authority to disregard title and to divide sale proceeds based solely on equity. Thus, the chancellor in this ease could not rely on section 11-21-9 to deny Jones her equal share of the partition-sale proceeds.

¶ 21. Because title showed Jones was a joint tenant with Graphia, both were entitled to an equal share of the jointly owned home upon severance, by either partition in kind or partition by sale. And the chancellor erred by denying Jones this right. I would reverse the judgment and remand this partition case for an equal distribution of the partition-sale proceeds.

      . Graphia testified that Jones wanted to be a joint owner and that she agreed to give him fifty percent ownership of her town home in Baton Rogue, Louisiana, in return for including her as a joint tenant of the Mississippi property. However, Graphia testified that this never happened.

      . Mississippi Code Annotated section 89-1-7 (Rev.2011) provides:
      All conveyances or devises of land made to two (2) or more persons, including conveyances or devises to husband and wife, shall be construed to create estates in common and not in joint tenancy or entirety, unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of survivorship. But an estate in joint tenancy or entirety with right of survivorship may be created by such conveyance from the owner or owners to himself, themselves or others, or to himself, themselves and others. An estate in joint tenancy or entirety with right of survivorship between spouses may be terminated by deed of one spouse to the other without necessity of joinder of the grantee spouse and without regard to whether the property constitutes any part of the homestead of the spouses.
      (Emphasis added).

      . See Miss.Code Ann. § 11-21-3 (Rev.2011). In addition to partitioning real property, a chancellor may adjust the equities between cotenants by, for example, adjusting the amount paid by one cotenant for improvements made to the property, or for taxes paid and other related expenses. Miss.Code Ann. §§ 11-21-11, 11-21-27 (Rev.2004).


author: ROBERTS, J.,

text:
    Dominique KEYES, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee. Donnell Keyes, Appellant v. Mississippi Department of Employment Security, Appellee.
    Nos. 2011-CC-01445-COA, 2011-CC-01446-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2012.

      Dominique Keyes, appellant, pro se.
    Donnell Keyes, appellant, pro se.
    Albert B. White, Leanne Franklin Brady, attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Dominique Keyes was an employee at Sanderson Farms, but, according to Keyes, his employment was terminated on January 3, 2011. Keyes filed for unemployment benefits; however, he was disqualified from receiving these benefits. He appealed the decision to. the Mississippi Department of Employment Security (MDES) Board of Review. The Board of Review affirmed the disqualification of Keyes’s unemployment benefits and mailed its decision to Keyes on July 29, 2011. In its decision, the Board of Review informed Keyes he had twenty days from July 29, 2011, to appeal the decision to the circuit court. The last day to file timely was August 18, 2011. Keyes filed his appeal in the circuit court on August 19, 2011. On September 7, 2011, the circuit court dismissed Keyes’s appeal because it was untimely filed. Keyes now appeals.

FACTS AND PROCEDURAL HISTORY

¶ 2. Keyes began working at Sanderson Farms on July 23, 2009, but after his shift on January 3, 2011, Keyes claimed he was informed by his direct supervisor that his employment was terminated because he violated Sanderson Farms’s absenteeism policy. Sanderson Farms disputed Keyes’s assertion that he was terminated on January 3, 2011, but instead asserted that he was actually terminated on January 7, 2011, after failing to come to work for three consecutive days without giving notice. Keyes filed for unemployment benefits, and MDES concluded that Keyes voluntarily left employment and was disqualified from receiving unemployment benefits. Keyes appealed this finding to an administrative law judge (ALJ). The ALJ conducted a telephonic hearing on May 24, 2011. Keyes, his attorney, and a representative of Sanderson Farms participated in the hearing. The ALJ disqualified Keyes from receiving unemployment benefits. Keyes then appealed the ALJ’s decision to the MDES Board of Review. On July 27, 2011, the Board of Review issued its decision adopting the ALJ’s findings of fact and affirming the ALJ’s decision to disqualify Keyes from receiving unemployment benefits. This decision was mailed to Keyes on July 29, 2011, and informed him that “[a]n appeal may be filed in the [c]ircuit [c]ourt in the county in which you reside by [August 18, 2011], which is [twenty] calendar days from the date this decision was mailed.”

¶ 8. Keyes filed his appeal on August 19, 2011, one day after the statutory deadline. On August 29, 2011, MDES filed a motion to dismiss Keyes’s appeal, arguing that it was untimely filed. The circuit judge granted MDES’s motion to dismiss on September 7, 2011. Keyes now appeals and raises the following issue: “Whether [Keyes] was entitled to benefits on the reason for separation from employment[,] and whether the employer’s experience rating is chargeable for benefits which may be paid to the claimant.”

ANALYSIS

¶ 4. Although Keyes attempts to argue the merits of the denial of his unemployment benefits, the current appeal stems from the circuit court’s decision to grant MDES’s motion to dismiss Keyes’s appeal as untimely. This Court’s standard of review when examining a circuit court’s grant of a motion to dismiss is de novo. Smith v. City of Saltillo, 44 So.3d 488, 440 (¶ 5) (Miss.2010) (citing Spencer v. State, 880 So.2d 1044,1045 (¶ 6) (Miss.2004)).

¶ 5. On September 7, 2011, the circuit court entered an order dismissing Keyes’s motion to appeal the Board of Review’s decision, finding as the basis for its decision to dismiss that Keyes’s appeal was untimely filed. We affirm the circuit court’s judgment.

¶ 6. According to Mississippi Code Annotated section 71-5-529 (Rev.2011), in an unemployment-benefits case, the Board of Review’s decision becomes final ten days after the date of notification. Thus, in the current case, the Board of Review’s decision became final on August 8, 2011. Mississippi Code Annotated section 71-5-531 (Rev.2011) provides that “[w]ithin ten (10) days after the decision of the Board of Review has become final, any party aggrieved thereby may secure judicial review thereof by commencing an action, in the circuit court of the county in which the plaintiff resides, against the department for the review of such decision[.]” Under section 71-5-531, Keyes had an additional ten days to appeal the Board of Review’s decision to the circuit court. Sections 71-5-529 and 71-5-531 provided Keyes a total of twenty days from July 29, 2011. Since the Board of Review’s decision became final on August 8, 2011, Keyes’s appeal should have been filed by August 18, 2011; Keyes filed his appeal on August 19, 2011, which was one day too late.

¶ 7. In Mississippi Employment Security Commission v. Powell, 787 So.2d 1277, 1281 (¶ 15) (Miss.2001) (citing Wilkerson v. Mississippi Employment Security Commission, 630 So.2d 1000,1002 (Miss.1994)), the Mississippi Supreme Court held that although there were no cases specifically dealing with the statutory deadlines found in sections 71-5-529 and 71-5-531, other statutory deadlines, such as those in Mississippi Code Annotated section 71-5-517 (Rev.2011), were strictly construed and could not be expanded absent a showing of good cause, such as an event affecting a party’s right through no fault of the party. The supreme court found that the circuit court erred in allowing Kim Powell to reopen her appeal after the circuit court had previously dismissed the appeal as untimely since she filed her appeal over two months after the statutory deadline. Powell, 787 So.2d at 1281-82 (¶¶ 15, 17). The previous circuit court judgment dismissing Powell’s motion as untimely was reinstated. Id. at 1282 (¶ 17).

¶ 8. The case before us today is distinguishable from Cummings v. Mississippi Department of Employment Security, 980 So.2d 340, 345-46 (¶ 16) (Miss.Ct.App. 2008), in which this Court found that Theresa Cummings had demonstrated good cause sufficient to extend the statutory deadline and allow her appeal. In that case, Cummings timely filed her appeal but failed to file the required civil cover sheet until after the statutory deadline. Id. at 344 (¶ 11). The circuit court dismissed her appeal finding that it was untimely filed. Id. at (¶ 12). This Court found that Cummings demonstrated good cause sufficient to extend the statutory deadline because her notice of appeal was timely filed and none of the applicable statutes, rules of procedure, or documents from the Board of Review informed Cummings that a civil cover sheet was required to perfect her appeal. Id. at 345-46 (¶¶ 16-17). In the current case, Keyes filed his appeal one day too late and has presented insufficient evidence of good cause that the circuit court or this Court should expand the statutory deadline and allow him to file his appeal.

¶ 9. Because we strictly construe the statutory deadlines found in sections 71-5-529 and 71-5-531, and cannot find good cause sufficient to expand them, we hold that the circuit court properly dismissed Keyes’s appeal as untimely.

¶ 10. THE JUDGMENT OF THE CO-PIAH COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . The Mississippi Supreme Court entered an order on January 25, 2012, consolidating Dominique Keyes v. Mississippi Department of Employment Security, No. 2011-CC-01445 with Donnell Keyes v. Mississippi Department of Employment Security, No. 2011-CC-01446 for appeal.


author: CARLTON, J.,

text:
    Charles Sylvester BELL a/k/a Charles S. Bell, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00645-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2012.

      Charles Sylvester Bell, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Charles Sylvester Bell appeals the Forrest County Circuit Court’s order summarily dismissing his motion for post-conviction relief (PCR) as time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2011). On appeal, Bell argues that the trial court erred by: (1) denying his PCR motion as time-barred under section 99-39-5(2); (2) denying his PCR motion in light of an illegal sentence; (3) denying his PCR motion in light of a fundamental constitutional right when it re-indicted him on the same armed-robbery charge, and whether this violated the protection against double jeopardy; (4) denying him relief by re-sentencing him pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), a statute not in existence when the crime was committed, and whether such sentencing violated public policy; and (5) allowing him to plead guilty to a charge previously used to convict him.

¶ 2. The record and the law of this case show that Bell was convicted of capital murder and sentenced to death. Following the overturning of Bell’s death sentence for his capital-murder conviction by the United States Court of Appeals for the Fifth Circuit, the State re-indicted Bell for armed robbery as a habitual offender. Bell pled guilty to the offense charged in the new indictment, and the trial court sentenced him to twenty-five years for his armed-robbery conviction. The trial court also sentenced Bell to life imprisonment, rather than the death penalty, for his capital-murder conviction. Bell now, as set forth above, asserts the re-indictment constituted error, and that the trial court erred in allowing him to plead guilty. Finding Bell’s PCR motion to be both time-barred and procedurally barred as a successive writ, we affirm the trial court’s dismissal.

FACTS

¶ 3. In 1977, Bell was indicted for capital murder under Mississippi Code Annotated section 97 — 3—19(2)(e) (Rev.2006) for killing D.C. Haden while engaged in the commission of the crimes of armed robbery and kidnapping. Bell was subsequently convicted of capital murder and sentenced to death. On appeal, the Mississippi Supreme Court upheld his conviction and sentence. See Bell v. State, 360 So.2d 1206,1215 (Miss.1978).

¶ 4. Subsequently, in 1982, the United States Court of Appeals for the Fifth Circuit overturned Bell’s death sentence. See Bell v. Watkins, 692 F.2d 999, 1014 (5th Cir.1982). Following the overturning of his death sentence, Bell was re-indicted for armed robbery as a habitual offender under Mississippi Code Annotated section 99-19-81 in July 1984. Then, in August 1984, Bell pled guilty to the offense in the new indictment of armed robbery as a habitual offender, and he was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. At that same time, the trial court sentenced Bell to life imprisonment for the capital-murder conviction. In Bell v. State, 751 So.2d 1035, 1037-38 (¶ 11) (Miss.1999), the Mississippi Supreme Court acknowledged that the record reflected that Bell knowingly and voluntarily pled guilty to armed robbery as a habitual offender to avoid the death penalty. The supreme court explained that the trial court thoroughly questioned Bell about his desire to plead guilty to armed robbery as a habitual offender, and the opinion reflects that Bell had been advised of his statutory and constitutional rights, including his ex post facto rights, and voluntarily waived these rights to avoid receiving the death penalty. Id. at (¶¶ 8-17).

¶ 5. Bell has filed numerous pleadings seeking review of his convictions and sentences through the years. See Bell, 692 F.2d at 999, cert. denied sub. nom. Bell v. Thigpen, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983); Bell, 751 So.2d at 1035; Bell v. State, 726 So.2d 93 (Miss.1998); Bell v. Watkins, 381 So.2d 118 (Miss.1980); Bell, 360 So.2d at 1206; Bell v. State, 886 So.2d 739 (Miss.Ct.App.2004); Bell v. Miss. Dep’t of Corr., 290 Fed.Appx. 649 (5th Cir.2008); Bell v. Miss. Dep’t of Corr., 118 Fed.Appx. 874 (5th Cir.2005).

¶ 6. Most recently, Bell filed a “Petition for Post[-]Conviction Relief’ on July 19, 2010, and a “Motion to Amend and/or Supplement Pending Post[-]Conviction” on September 10, 2010, which the trial court collectively treated as a PCR motion. On April 5, 2011, the Circuit Court of Forrest County summarily dismissed Bell’s PCR motion as time-barred under section 99-39-5(2).

STANDARD OF REVIEW

¶ 7. This Court employs a well-stated standard of review when reviewing a trial court’s dismissal of a motion for post-conviction relief. “We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004).

DISCUSSION

I. PROCEDURAL BARS

¶ 8. “Under the Uniform Post^Conviction Collateral Relief Act [ (UPCCRA) ], successive motions are generally barred from our review.” White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011); see Miss.Code Ann. § 99-39-23(6) (Supp.2011). Additionally, “a three-year limitations period applies to claims for relief under the UPCCRA.” Id. (citing Miss.Code Ann. § 99-39-5(2)).

¶ 9. Upon review, we find that Bell’s present PCR motion constitutes a successive writ because it is at least his fourth PCR motion. He has also alleged in prior PCR motions the same issues asserted in this appeal — violations of the Ex Post Facto and Double Jeopardy Clauses. See Bell, 726 So.2d at 94 (¶ 4); Bell, 751 So.2d at 1036 (¶ 1); Bell,. 886 So.2d at 739 (¶ 1). Further, because he is challenging a 1984 conviction, his PCR motion was filed well outside the three-year statute of limitations.

¶ 10. Accordingly, we must look to see whether an exception to these procedural bars applies. The movant bears the burden of showing he has met a statutory exception. White, 59 So.3d at 635 (¶ 8). Further, as discussed below, we recognize that “[ejrrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Id. (citation omitted).

II. EXCEPTION FOR INTERVENING DECISIONS

¶ 11. In an attempt to circumvent the procedural bars, Bell argues that the Mississippi Supreme Court’s decision in Rowland v. State, 42 So.3d 503 (Miss.2010), is an intervening decision that, if applied, would cause a different result in his case.

¶ 12. In Rowland, Defendant Robert Rowland and his two codefendants pled guilty to two counts of armed robbery and two counts of capital murder stemming from an incident that occurred in 1979. Id. at 504 (¶1). Rowland filed a PCR motion in 2007, claiming that his convictions and sentences for armed robbery violated his fundamental constitutional rights against double jeopardy, since they were the underlying felonies for the capital-murder convictions. Id. The trial court dismissed Rowland’s petition as time-barred, and this Court affirmed. Id. The Mississippi Supreme Court subsequently granted certiorari and reversed and remanded the case for an evidentiary hearing. Id. In doing so, the supreme court stated: “Errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA. The right to be free from double jeopardy is a fundamental right.” Id. at 508 (¶ 16). This case differs from Rowland, however, in that in Rowland, the record failed to reflect that the defendant had been advised of his constitutional rights, specifically his Fifth Amendment right against double jeopardy. Id. at 508 (¶¶ 15-16). Therefore, the Rowland court remanded the case for an evi-dentiary hearing to determine if Rowland’s plea was voluntary and knowing or made without a waiver of his right against double jeopardy. Id. Bell’s claims differ because Bell, 751 So.2d at 1037-38 (¶¶8-17), shows that the supreme court had already determined that the trial court thoroughly questioned Bell regarding his desire to plead guilty and that his attorneys had advised him of his constitutional and statutory rights, which he waived. The court found that Bell pled guilty to avoid the death penalty. Id.

¶ 13. In this case, Bell again maintains that his guilty plea to armed robbery as a habitual offender constitutes a violation of his ex post facto rights and his double jeopardy rights. Bell also contends that his constitutional claims should be excepted from the procedural bars of the UPCCRA. We agree with Bell that, in accordance with recent supreme court precedent as set forth in Rowland, his constitutional claims are excepted from the procedural bars of the UPCCRA.

¶ 14. However, Bell’s claims must be supported by the evidence in the record. See Chandler v. State, 44 So.3d 442, 444 (¶ 8) (Miss.Ct.App.2010) (“[T]he mere assertion of a constitutional right violation is not sufficient to overcome the time bar. There must at least appear to be some basis for the truth of the claim before the limitation period will be waived.”); see also Miss.Code Ann. § 99-39-11(2) (Supp.2011). In Rowland, the record on appeal failed to show whether Rowland voluntarily waived his right against double jeopardy, and remand of the case for an evidentiary hearing was appropriately ordered. Rowland, 42 So.3d at 508 (¶¶ 15-16). In Bell, 751 So.2d at 1037 (¶ 9), the supreme court found that upon prior remand from the supreme court, the trial court thoroughly questioned Bell as to his desire to plead guilty to armed robbery as a habitual offender. The supreme court further found that the trial court explained to Bell that he was pleading guilty as a habitual offender to the crime of armed robbery, and the court noted that Bell’s attorneys informed him of all of his constitutional and statutory rights. Id. In fact, at the eviden-tiary hearing on remand, then-District Attorney Glenn White “testified that Bell’s attorneys indicated that Bell would waive any and all rights in order to effectuate this particular plea agreement, including his ex post facto rights.” Id. at (¶ 10). In conclusion, after reviewing the record after an evidentiary hearing on remand, the supreme court recognized that Bell voluntarily and knowingly entered his guilty plea to avoid the possibility of receiving the death penalty. Id. at 1037-38 (¶¶ 11-17). Therefore, Rowland does not affect the outcome of Bell’s convictions and sentences. This issue is without merit.

CONCLUSION

¶ 15. We find that none of the statutory exceptions under sections 99-39-5(2) and 99-39-23(6) apply to Bell’s case. We further find that nothing in Bell’s PCR motion excepted it from the procedural bars of sections 99-39-5(2) and 99-39-23(6). We find no abuse of discretion in the trial court’s dismissal of Bell’s PCR motion as time-barred, and we also find that Bell’s PCR motion is barred as a successive writ.

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, RUSSELL AND FAIR, JJ„ CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . Bell's crime occurred on June 22, 1976. Section 99-19-81, which provides for the sentencing of habitual criminals to maximum terms of imprisonment, was enacted by the 1976 Legislature, effective from and after January 1, 1977. Bell v. State, 751 So.2d 1035, 1036 (¶ 3) (Miss.1999).


text:
    William Antonio AVERY a/k/a William Avery, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01078-COA.
    Court of Appeals of Mississippi.
    Aug. 14, 2012.

      William Antonio Avery, appellant, pro se.
    Stephanie Breland Wood, attorney for Appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   BARNES, J.,

for the Court:

¶ 1. William Antonio Avery pleaded guilty to selling cocaine within 1500 feet of a church and was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty-nine years and three hundred fifty-nine days suspended and five years of reporting post-release supervision, to be followed by five years of non-reporting post-release supervision. Avery violated the conditions of his post-release supervision, and his post-release supervision was revoked. He was returned to MDOC custody to serve the remainder of his sentence. Avery filed a motion for post-conviction relief, which the Lauderdale County Circuit Court denied. On appeal, we affirm the circuit court’s judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 2007, Avery was indicted for the sale of cocaine within 1500 feet of a church. After several continuances, Avery entered an Alford guilty plea on June 8, 2009. He was sentenced to thirty years in the custody of the MDOC, with twenty-nine years and three hundred fifty-nine days suspended, five years of reporting post-release supervision, and five years of non-reporting post-release supervision. A year later, Avery violated the terms of his post-release supervision by committing “the offense[s] of sale of cocaine and felon fleeing in Lauderdale County Cause No. 439-10.” On October 13, 2010, Avery’s post-release supervision was revoked by order of the circuit court, and he was ordered into the custody of the MDOC to serve the remainder of his sentence.

¶ 3. Avery filed a motion for post-conviction relief on March 31, 2011, which the circuit court denied. Appealing the circuit court’s denial of his motion, Avery contends that defense counsel’s performance was deficient, and he was denied his right to a speedy trial. Finding no error, we affirm the circuit court’s judgment.

STANDARD OF REVIEW

¶ 4. This Court will not disturb a circuit court’s denial of a motion for post-conviction relief unless the findings “are found to be clearly erroneous.” Turner v. State, 78 So.3d 347, 348 (¶ 6) (Miss.Ct.App.2011) (quoting Presley v. State, 48 So.3d 526, 529 (¶ 10) (Miss.2010)). Questions of law, however, are review de novo. Id.

I. Whether Avery was denied effective assistance of counsel.

¶ 5. Avery argues that his attorney “forged” his name to several motions for continuance, which he claims were “instrumental in the denial of [Avery’s] right to a speedy trial.” He alleges these continuances also cost him several thousand dollars in attorney’s fees and constituted extortion. Avery further alleges that counsel failed to conduct any pretrial investigation, and counsel’s advice to plead guilty constituted ineffective assistance of counsel.

¶ 6. This Court has held:

In order to demonstrate ineffective assistance of counsel, a petitioner must satisfy the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the convicted defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006) (internal citations omitted).

Mitchell v. State, 58 So.3d 59, 62 (¶14) (Miss.Ct.App.2011). As this case involves a guilty plea, Avery must show that, but for counsel’s performance, he would have gone to trial, and the outcome would have been different. See id. at (¶ 15).

¶ 7. On the morning of his trial, Avery agreed to enter an Alford guilty plea and testified that he was satisfied with his counsel’s representation.

Q. Now, you have gone over those facts that led to this charge on August 8 of 2006 where it is alleged you sold the cocaine in detail with your attorney, Mr. Wright, correct?
A. Yes, sir.
Q. Yes?
A. Yes, sir.
Q. And he’s explained to you exactly what the State would have to prove to find you guilty there. He’s gone over with you, I know, in detail defenses you have. You’ve considered lesser included offenses; you are pleading to a lesser included offense?
A. Yes, sir.
Q. And after considering all of that, you are satisfied with the legal counsel that Mr. Wright has given you as your attorney?
A. Yes, sir.

Furthermore, the “Petition to Enter Plea of Guilty,” that Avery signed and initialed, stated:

I believe that my lawyer has done all that anyone could do to counsel and assist me, and I am satisfied with the advice and help he has given me. After consulting with my lawyer, I am entering my plea of “GUILTY” freely and voluntarily and of my own accord and with full understanding of the matters set forth in the indictment and in this petition and in the certificate of my lawyer which follows.

¶ 8. Counsel had the authority to represent Avery in all matters before the court, including the filing of motions for continuance. Further, when the attorney signed the documents that Avery alleges were forged, the attorney clearly noted he was signing as counsel on Avery’s behalf. There was no representation that Avery actually signed the documents. The record also shows that sufficient pretrial discovery and investigation was conducted. Counsel filed a motion for discovery, requesting that the State provide all “documents, pictures and articles” prior to trial. Avery’s attorney also employed a private investigator to interview a possible wifi ness. Accordingly, we find nothing to support Avery’s claim of ineffective assistance of counsel.

II. Whether Avery was denied his right to a speedy trial.

¶ 9. Avery argues that he was denied his right to a speedy trial. However, as this Court has consistently noted, “a valid ‘guilty plea waives the right to a speedy trial, whether that right is of constitutional or statutory origin.’ ” Carroll v. State, 3 So.3d 767, 774 (¶ 14) (Miss.Ct.App. 2008) (quoting Rowe v. State, 735 So.2d 399, 400 (¶3) (Miss.1999)). At the plea hearing, the circuit judge informed Avery he was waiving his “right to a speedy and public trial”; Avery indicated that he understood. Thus, Avery is procedurally barred from raising this argument.

¶ 10. Notwithstanding the procedural bar, we find no merit to Avery’s claim. Defense counsel sent Avery a letter on October 4, 2007, noting that there had been previous discussion to delay the matter for two reasons. First, Avery was currently serving a separate sentence, so expediting the matter would not release him from custody. Second, Avery’s case was based on a purchase of drugs by a confidential informant, and delaying the trial would be beneficial, as informants can be unreliable. There was also a hope that the informant might move from the area. Counsel stated: “The continuances were a tactical position to assist in defending your case.” Defense counsel did provide Avery with a motion for a speedy trial and agreed to file it with Avery’s signature and approval. Avery claims that he returned the motion, but his counsel never filed it. Furthermore, Avery signed three orders dated September 22, 2008, January 28, 2009, and May 18, 2009, resetting the cause for trial, and each order stated that “the Defendant waives the right to a speedy trial.” We find no merit to this argument.

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

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

      . An Alford plea, also known as a “best-interest” guilty plea, is based on the United States Supreme Court's ruling in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) that allows a defendant to avoid the risk of conviction at trial by pleading guilty without admitting to actual guilt of the crime charged.