author: LEE, C.J., ISHEE, J.,

text:
    Khari Kamau ALEXANDER, Appellant v. Amanda Green ALEXANDER, Appellee.
    No. 2010-CA-01765-COA.
    Court of Appeals of Mississippi.
    March 27, 2012.
    Rehearing Denied Aug. 14, 2012.

      Everett T. Sanders, attorney for appellant.
    David Neil McCarty, attorney for appel-lee.
    Before LEE, C.J., ROBERTS and RUSSELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Khari Alexander and Amanda Green Alexander were married in October 2001, and separated in March 2009. One child was born of the marriage. Amanda filed for divorce in the Hinds County Chancery Court after she suspected Khari was having an extra-marital affair. The chancellor found Amanda failed to prove adultery, but he granted a divorce based on habitual cruel and inhuman treatment.

¶ 2. Khari now appeals, asserting the following issues: (1) the chancellor was biased; (2) the chancellor abused his discretion and applied an erroneous legal standard in granting the divorce based on habitual cruel and inhuman treatment; and (3) the award of attorney’s fees was not supported by the record. We find reversible error as to issues two and three.

FACTS

¶ 3. Amanda accused Khari of adultery after discovering e-mails from other women on his computer. Khari admitted to being attracted to other women and having relationships with women other than his wife, but he denied that any of the relationships were sexual in nature. He wrote some of these women love poems. Khari admitted to being alone with another woman in a hotel room at night, but he denied that he committed adultery. Reverend Melvin Chapman testified he spoke with Khari about his relationship with Amanda. According to Chapman, Khari had an encounter with a female in which he put on a condom, but Khari insisted that he and the female did not have intercourse. Chapman testified that he did not believe Khari.

¶ 4. Amanda testified that, during the marriage, Khari would threaten her and use profane language. Amanda stated on one occasion, when Khari became violent, she attempted to call the police, but Khari slapped the phone away from her. Amanda tried to run to a neighbor’s house, and Khari chased Amanda down the street. She eventually fled in her car. On another occasion, Khari took Amanda’s keys out of her car while he was picking their child up for visitation. Amanda sought the help of law enforcement to get her keys back.

STANDARD OF REVIEW

¶ 5. “A chancellor’s findings of fact will not be disturbed unless manifestly wrong or clearly erroneous. This Court will not disturb the findings of a chancellor when supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, [was] clearly erroneous!,] or an erroneous legal standard was applied.” Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶8) (Miss.2002) (internal and citations quotations omitted).

DISCUSSION

I. HABITUAL CRUEL AND INHUMAN TREATMENT

¶ 6. Khari argues the chancellor erred in granting Amanda a divorce based on habitual cruel and inhuman treatment. First, Khari asserts that Amanda only pled for a divorce based on adultery. Second, he argues that even if habitual cruel and inhuman treatment was pled, it was not proven.

¶ 7. At the conclusion of the divorce proceedings based on adultery, the chancellor made the following statement:

THE COURT: All right. We are to the end of the case. I have heard all the testimony pertaining to the charged grounds for divorce, and I think particularly as to the grounds for adultery, uncondoned adultery, that the plaintiff has not met her proof. She has requested in an amended complaint for a divorce on the grounds of irreconcilable differences, but she’s prayed for a divorce on the grounds of habitual cruel and inhuman treatment. That’s not been charged. I’m helping her, I know, [Khari’s counsel], but under the new rules an amendment can be made right up to the final order. And, [Amanda’s counsel], if you will conform to the statute and the rules, I can possibly grant a divorce on other grounds, but that’s as far as I can go with you. You have prayed for all three grounds but you haven’t charged that in the complaint.

Amanda’s attorney immediately made an oral motion to modify the complaint to include habitual cruel and inhuman treatment. Khari’s attorney objected on the ground that he had no notice that habitual cruel and inhuman treatment was being pled. His objection was overruled, and Amanda was granted a divorce based on habitual cruel and inhuman treatment.

¶ 8. Mississippi Rules of Civil Procedure Rule 15(b) states that “when issues not raised by the pleadings are tried by expressed or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” We find the ground of habitual cruel and inhuman treatment was not pled by express or implied consent of the parties. The bulk of the testimony in this case centered around Khari’s e-mails to other women from his personal computer. Acts of adultery may be used as a factor to prove habitual cruel and inhuman treatment. Fisher v. Fisher, 771 So.2d 364, 368 (¶ 13) (Miss.2000). However, the chancellor found Amanda failed to prove adultery.

¶ 9. Further, even if habitual cruel and inhuman treatment was tried by express or implied consent of the parties, the evidence does not support a divorce on this ground. In order to establish the basis for a divorce on the ground of habitual cruel and inhuman treatment, the claimant must show by a preponderance of the evidence conduct that:

either endangerfs] life, limb, or health, or create[s] a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or in the alternative, be so unnatural and infamous as to make the marriage revolting to the offending spouse and render it impossible for that spouse to discharge the duties of the marriage, thus destroying the basis for its continuance.

S. Hand, Mississippi Divorce, Alimony and Child Custody § 4-12 (2d ed. Supp.1991); Gardner v. Gardner, 618 So.2d 108,113-14 (Miss.1993). A causal connection between the treatment and separation must exist. Foumet v. Foumet, 481 So.2d 326, 329 (Miss.1985). “It is an extreme set of facts that will prove a divorce based upon habitual cruel and inhuman treatment.” Moses v. Moses, 879 So.2d 1043, 1047 (¶ 9) (Miss. Ct.App.2004) (quoting Keller v. Keller, 763 So.2d 902, 908 (¶29) (Miss.Ct.App.2000)).

¶ 10. Amanda testified on cross-examination as to two incidents during the marriage: once when she fled the marital home and once when Khari came at her forcefully. She testified Khari came home late one night in 2003 and tried to talk to her. When she would not get up, he pulled the covers off the bed and used vulgar language. She attempted to call the police, but Khari knocked the phone out of her hand, and the phone hit her face. He chased her out of the house, and she fled in her car to her brother’s home. Amanda was not sure when the second incident occurred. She testified they were living in Rankin County at the time, and it may have been in 2007. She stated: “He came towards me in a very forceful nature and began shouting and screaming at me. He ... referred to me for the first time I think I’ve ever been referred to, certainly by him, as a b-, and that didn’t go over very well.” She testified he did not physically touch her. She later sought a temporary restraining order.

¶ 11. When asked during trial what ground she was alleging in her complaint for divorce, Amanda responded “adultery.” When asked why she and Khari separated, Amanda responded: “I discovered that he had in fact had inappropriate relationships with other women during our marriage.” The Mississippi Supreme Court stated in Foumet that “[t]here is a necessity for [a] causal relationship [between the cruel treatment and separation] to be proved when relying on the ground of habitual cruel and inhuman treatment, and it must be related in point of time to the separation.” Foumet, 481 So.2d at 329. Later cases have held that this is not to be interpreted as a strict requirement that a specific act cause the separation. Peters v. Peters, 906 So.2d 64, 70 (¶ 24) (Miss.Ct.App.2004). Instead, the claimant must show “habitual or continuous behavior over a period of time, close in proximity to the separation, or continuing after a separation occurs” in order to prove habitual cruel and inhuman treatment. Id. (quoting Richard v. Richard, 711 So.2d 884, 890 (¶ 23) (Miss.1998)).

¶ 12. We cannot find Amanda proved the ground of habitual cruel and inhuman treatment. The evidence presented by Amanda focused on adultery. It was only during cross-examination that the other incidents were mentioned. We find the chancellor erred in granting a divorce based on habitual cruel and inhuman treatment as his findings were not supported by substantial evidence. We reverse the judgment of the chancellor and remand this case for a new trial.

II. ATTORNEY’S FEES

¶ 13. The chancellor ordered Khari to pay Amanda’s $31,705.45 in attorney’s fees. Khari argues this award should be overturned because the chancellor failed to make any findings of fact regarding Amanda’s inability to pay the fees or the reasonableness of the fees.

¶ 14. “An award of attorney[’s] fees is a matter largely within the sound discretion of the chancellor.” Dickerson v. Dickerson, 34 So.3d 637, 648 (¶ 43) (Miss. Ct.App.2010) (citing Smith v. Smith, .614 So.2d 394, 398 (Miss.1993)). “Attorney[’s] fees should only be awarded in an amount that compensates for services rendered.” Id. at (¶ 44) (citing McKee v. McKee, 418 So.2d 764, 767 (Miss.1982)). The factors to be analyzed in determining whether to award attorney’s fees include: (1) “the relative financial ability of the parties;” (2) “the skill and standing of the attorney employed,” (3) the novelty and difficulty of issues in the case, (4) the responsibility required in managing the case, (5) “the time and labor required,” (6) “the usual and customary charge in the community,” and (7) whether the attorney was precluded from undertaking other employment by accepting the case. McKee, 418 So.2d at 767.

¶ 15. The testimony showed Khari earned approximately $90,000 a year; however, Khari did not file a financial statement pursuant to Uniform Chancery Court Rule 8.05. Amanda asserts that her inability to pay her attorney’s fees was proven because the chancellor found her household expenses exceeded her income. The chancellor made no findings of fact on the issue of her inability to pay or Khari’s ability to pay. An itemized bill from Amanda’s attorney is included in the record; however, the chancellor did not examine the reasonableness of the fees. Before attorney’s fees are awarded, the chancellor must determine if the fees were fair, reasonable, and necessary. Dickerson, 34 So.3d at 648 (¶ 44) (citing McKee, 418 So.2d at 767). Since the chancellor failed to make findings pursuant to the McKee factors, we also reverse and remand on this issue.

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

GRIFFIS, P.J., ROBERTS, RUSSELL AND FAIR, JJ., CONCUR. ISHEE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLTON, J. IRVING, P.J., BARNES AND MAXWELL, JJ., NOT PARTICIPATING.

ISHEE, J.,

dissenting:

¶ 17. I respectfully dissent from the majority’s opinion. I find the chancery court did not abuse its discretion in granting the divorce based on cruel and inhuman treatment. Therefore, I would affirm the chancellor’s decision.

¶ 18. “Under our standard of review, we view the facts of a divorce decree in a light most favorable to the appellee, and may not disturb the chancellor’s decision unless we find that decision to be manifes^ ly wrong or unsupported by substantial evidence.” Serton v. Serton, 819 So.2d 15, 18 (¶ 10) (Miss.Ct.App.2002) (citing Mullins v. Ratcliff, 515 So.2d 1183,1189 (Miss.1987)).

¶ 19. In situations similar to the one at hand, it is often difficult to discern what rises to the level of cruel and inhuman treatment and what is considered mere unkindness, rudeness, and incompatibility. Accordingly, “the chancellor as the trier of fact evaluates the sufficiency of the proof based on the credibility of the witnesses and the weight of their testimony.” Id. at 18 (¶ 12) (citing Richard v. Richard, 711 So.2d 884, 888 (¶ 13) (Miss.1988)). While it is possible that a different trier of fact could' have reached an alternate conclusion based on the facts of this case, I nonetheless find the chancellor did not abuse his discretion by granting a divorce on the ground of cruel and inhuman treatment.

1120. Amanda testified to several occasions where force or attempted force was used against her by Khari. In one instance, Khari knocked a telephone out of Amanda’s hand, and the telephone hit her in the face. Khari then chased her, at which point she ran from the house and ultimately escaped in her car. In a separate incident, Khari came towards her in a forceful manner and called her a derogatory name. During a different heated event, the sheriffs department was called to their house. When questioned, Khari admitted “words were exchanged,” but insisted he did not hit Amanda. Finally, after the couple had separated, Khari took the keys out of Amanda’s car and refused to return them. Ultimately, the police had to be summoned to retrieve the keys.

¶ 21. Based on the foregoing acts taken together, I find it was reasonable for the chancellor who heard the evidence to determine the elements of cruel and inhuman treatment were sufficiently established and corroborated. Furthermore, although Amanda cited adultery as the basis of her complaint for divorce, I find that she sufficiently pleaded the elements of cruel and inhuman treatment at trial such that it was not an abuse of discretion to grant the divorce on that ground. Accordingly, I would affirm the chancellor’s grant of the divorce based on cruel and inhuman treatment.

CARLTON, J., JOINS THIS OPINION.


source: Caselaw Access Project

author: BARNES, J., CARLTON, J.,

license: Public Domain

text:
    Arnetria L. AULTMAN, Appellant v. LAWRENCE COUNTY, Mississippi, Appellee.
    No. 2011-CA-00540-COA.
    Court of Appeals of Mississippi.
    July 17, 2012.

      C.E. Sorey II, attorney for appellant.
    Roy A. Smith Jr., Jackson, Steven James Griffin, Flowood, attorneys for ap-pellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. Arnetria Aultman appeals the Lawrence County Circuit Court’s grant of summary judgment in favor of Lawrence County, Mississippi, under the Mississippi Torts Claims Act (MTCA). Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On April 13, 2009, just after midnight, Aultman was injured when her vehicle plunged into a huge crevasse that was approximately twenty feet wide and ten feet deep. The crevasse formed when a section of Oak Grove Road was washed out following heavy rainfall in Lawrence County, Mississippi. Another vehicle, driven by Angelean Ball, had fallen into the crevasse a few hours earlier when the road initially gave way. Immediately after the first accident involving Ball, Lawrence County Supervisors Archie Ross and Steve Garrett placed warning barricades that bore three horizontal orange and white planks at the accident site. The barricades were placed at the intersection of F.E. Sellers Highway and Oak Grove Road, and the intersection of John Peyton Lane and Oak Grove Road. Ross stated that when he left the site at approximately 11:30 p.m., the barricades were properly in place. According to sworn affidavits from a sheriffs deputy, Jonathan Alford, and a fireman, John Fuller, construction barrels were also placed on each side of the crevasse where the road was washed out. Aultman and the two passengers in her vehicle at the time of the accident stated that they saw an orange and white barricade sitting off to the side of the road about twelve to fifteen car lengths before the huge crevasse, but they claimed no other warning signs were present. However, Fuller stated that construction barrels had been knocked into the crevasse, and the tow truck driver stated that Aultman admitted to him that she had driven around a barricade.

¶ 3. On June 15, 2010, Aultman filed an action against Lawrence County, alleging that it failed to warn the public of the washed-out portion of Oak Grove Road. Lawrence County responded with a motion for summary judgment, claiming it was immune from liability under the MTCA’s discretionary-function exemption found in Mississippi Code Annotated section 11-46-9(l)(d) (Rev.2002).

¶ 4. On March 9, 2011, the circuit court granted summary judgment, finding that no triable issue existed since Lawrence County had immunity under the exception enumerated in section 11^46-9(l)(d). The circuit court also concluded that Lawrence County had immunity under Mississippi Code Annotated section 11^6-9(l)(v) (Rev.2002), as the crevasse in the middle of the road “would be obvious to one exercising due care.” Aultman now appeals, and finding no error, we affirm the circuit court’s grant of summary judgment for Lawrence County.

DISCUSSION

¶ 5. Review of a governmental entity’s immunity under the MTCA is a question of law. City of Jackson v. Harris, 44 So.3d 927, 931 (¶19) (Miss.2010). “This Court analyzes the [circuit] court’s grant or denial of summary judgment, as well as the application of the MTCA, de novo.” Wiltshire v. Miss. Fairgrounds Comm’n, 75 So.3d 563, 566 (¶ 9) (Miss.Ct.App.2011) (citing Price v. Clark, 21 So.3d 509, 517 (¶ 10) (Miss.2009)). Rule 56 of the Mississippi Rules of Civil Procedure provides that summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file,, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

I. Whether the placement of traffic control devices is a discretionary function under Mississippi Code Annotated section 11 — 46—9(l)(d).

¶ 6. Mississippi Code Annotated section 11 — 46—9(l)(d) provides immunity for government entities and its employees from claims that are “[bjased upon the' exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a government entity or employee thereof, whether or not the discretion be abused[.]” “Discretionary governmental functions are protected by the MTCA and are immune from liability.” Barrentine v. Miss. Dep’t. of Transp., 913 So.2d 391, 393 (¶ 8) (Miss.Ct. App.2005) (citing Miss. Code Ann. § 11-46-9(l)(d)). A two-part public-policy-function test is used to determine whether the governmental conduct constitutes a discretionary function. Wiltshire, 75 So.3d at 567 (¶ 10). First, it must be determined “whether the activity involved an element of choice or judgment.” Id. (citing Jones v. Miss. Dep’t of Transp., 744 So.2d 256, 260 (¶ 11) (Miss.1999) (overruled on other grounds) (quotations omitted)). “If so, it must then be determined ‘whether the choice or judgment involved social, economic, or political policy.’ ” Id. (quoting Jones, 744 So.2d at 260 (¶ 10)).

¶ 7. As to the test’s first prong, “a duty is discretionary if it requires an official to use her own judgment and discretion in the performance thereof.” Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16 (¶ 19) (Miss.2006) (citation omitted). Conversely, an act is considered ministerial if the duty is one that has been “positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.” Miss. Transp. Comm’n v. Montgomery, 80 So.3d 789, 795 (¶ 19) (Miss.2012) (citing Covington County Sch. Dist. v. Magee, 29 So.3d 1, 5 (¶8) (Miss.2010)). Aultman contends that the placement of warning signs is a ministerial function. However, Mississippi Code Annotated section 63-3-305 (Rev.2004) states that officials “shall place and maintain such traffic control devices upon highways ... as they may deem necessary ... to regulate, warn or guide traffic.” (Emphasis added). As the circuit court acknowledges in its order, it is well-settled law in Mississippi that the “placement or non-placement of traffic control devices or signs is a discretionary governmental function.” Barrentine, 913 So.2d at 393 (¶ 8) (citing Webb v. County of Lincoln, 536 So.2d 1356, 1359 (Miss.1988)); see also Montgomery, 80 So.3d at 798 (¶ 33) (“[T]he placement or nonplacement of traffic-control devices to warn of dangerous conditions involves choice and judgment and is not ministerial.”); Wright v. Lee County, 71 So.3d 1246, 1249 (¶ 13) (Miss. Ct.App.2011) (“[R]oad maintenance is a discretionary function.”) (citation omitted). Since Lawrence County officials used their judgment in deciding when and where to place the traffic control devices, the act is considered a discretionary function.

¶ 8. Under the test’s second prong, “only those functions which by nature are policy decisions, whether made at the operational or planning level,” will be afforded immunity. Montgomery, 80 So.3d at 799 (¶ 34) (quoting Dancy, 944 So.2d at 16 (¶ 17)). “The purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” Id. In analyzing the public-policy function test, the Mississippi Supreme Court has stated that the focus is not on the decision maker’s “subjective intent in exercising the discretion conferred by statute^] but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Id. (quoting United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267,113 L.Ed.2d 335 (1991)).

¶ 9. In Simpson County v. McElroy, 82 So.3d 621, 626 (¶22) (Miss.Ct.App.2011), this Court recently held that a county employee’s decision to use signs in his truck to warn drivers of a washed-out portion of a road involved an exercise of judgment, and his “actions were discretionary, not ministerial.” Furthermore, the use of the “homemade” signs for temporary road situations “involved economic policy.” Id. at (¶ 24). Consequently, we held that the county’s actions were “shielded from liability under Mississippi Code Annotated section 11 — 46—9(l)(d).” Id. at (¶ 25).

¶ 10. Aultman argues that the circuit court erred by failing to make a determination of whether Lawrence County’s choice or judgment-to place warning barricades on Oak Grove Road, to alert motorists of the dangerous condition-involved social, economic, or political policy. While Aultman is correct that the circuit court did not specifically discuss the second prong of the test regarding the policy behind Lawrence County’s decision, neither party introduced this issue in any of its motions or arguments to the circuit court. See III. Cent. R.R. Co. v. Byrd, 44 So.3d 943, 948 (¶ 14) (Miss.2010) (“unless substantial rights are affected, issues not presented to the trial judge are procedurally barred from being raised for the first time on appeal.” (citing Dora v. State, 986 So.2d 917, 925 (¶ 18) (Miss.2008))). Regardless, while it would have been better practice for the circuit court to discuss the two-part public-policy-function test specifically in its grant of summary judgment, we find that the comprehensive language in the court’s order, indicating that “Lawrence County’s decision to place barricades and barrels (traffic control devices or warning signs) at or near the crevasse was therefore a discretionary function for which ordinary care is not required,” is sufficient for this Court to presume that the appropriate standard was employed. Accordingly, we find no error in the circuit court’s analysis and conclusions regarding Lawrence County’s discretionary immunity-

¶ 11. Additionally, there is a presumption that when a governmental agency, through “statute, regulation, or agency guidelines, allows a government agent to exercise discretion,” those acts “are grounded in policy when exercising that discretion.” Montgomery, 80 So.3d at 800 (¶ 39) (quoting Dancy, 944 So.2d at 18 (¶ 23)). It was Aultman’s responsibility to rebut the presumption that the discretion exercised by Lawrence County officials in placing the warning signs was grounded in public policy. See id. Other than her broad assertion on appeal that the circuit court failed to address the issue of policy, she has provided neither the circuit court, nor this Court, with any specific facts to rebut the presumption that the county’s actions were “grounded in policy.” On the other hand, Lawrence County contends that its decision “to place warning signs at both ends of the road” until a crew could repair it the next morning “was a reasonable decision based upon economic and social policy,” especially considering its “limited resources and the flash flooding” that had occurred.

¶ 12. We conclude that the circuit court did not err in finding that Lawrence County’s placement of the warning devices constituted a discretionary function for which it has immunity under Mississippi Code Annotated section 11 — 46—9(l)(d).

II. Whether Lawrence County was entitled to immunity under Mississippi Code Annotated section ll-46-9(l)(v).

¶ 18. Aultman argues that -there is a genuine issue of material fact as to whether the crevasse in Oak Grove Road was “open and obvious” under the requirements of Mississippi Code Annotated section 11 — 46—9(l)(v), which provides that a governmental entity shall not be liable for any claim:

[a]rising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.

(Emphasis added). Aultman contends that since she had no prior knowledge that the crevasse existed and it was very dark at the time of the accident, the dangerous condition was not “open and obvious.” She does not dispute that Lawrence County placed barricades at or near the site of the dangerous condition. In fact, Aultman and her two passengers stated that they saw an orange and white barricade sitting off to the side of the road approximately twelve to fifteen car lengths from the crevasse. However, Aultman claims that her affidavit and those of her passengers indicated that they “only saw one barricade at the side of the roadway, not blocking the entrance nor blocking passage over the washed out area of the road,” then the condition was not obvious.

¶ 14. For argument’s sake, the circuit court stated in its order that even if Lawrence County was not immune under section 11 — 46—9(l)(d), it would be immune under section 11-46 — 9(l)(v). The circuit court noted that the affidavits indicated that “there was a ‘huge’ crevasse in the center of the road” and concluded that this condition “would be obvious to one exercising due care.” The circuit court also submitted that Lawrence County warned the public of the condition by placing traffic control devices near the crevasse.

¶ 15. Furthermore, this Court has held that when summary judgment is found to be “appropriate as to section 11 — 46—9(l)(d), we need not engage in any analysis regarding [an] Appellant’s] claim as to section ll-46-9(l)(v).” Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 971 (¶ 33) (Miss.Ct.App.2009). Consequently, “where any of the immunities enumerated in section 11 — 46-9(1) apply, the government is completely immune from the claims arising from the act or omission complained of.” Id. (quoting Willing v. Benz, 958 So.2d 1240, 1255 (¶40) (Miss.Ct. App.2007)). Since no genuine issue of material fact existed regarding Lawrence County’s immunity under section 11-46-9(l)(d), it is unnecessary to conduct an analysis of its immunity under section 11-46-9(l)(v).

III. Whether Lawrence County was entitled to immunity under Mississippi Code Annotated section ll-46-9(l)(w).

¶ 16. Although not addressed by the circuit court or Aultman, Lawrence County submitted a credible argument in its answer and on appeal regarding immunity under section ll-46-9(l)(w), which states that a governmental entity is not liable for injuries:

[a]rising out of the absence, condition, malfunction or removal by third parties of any sign, signal, warning device, illumination device, guardrail or median barrier, unless the absence, condition, malfunction or removal is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice[.]

As stated, since we found immunity under other provisions of the statute, it is unnecessary to analyze whether immunity existed under section ll-46-9(l)(w). Notwithstanding, the record supports immunity under section ll-46-9(l)(w).

¶ 17. According to Supervisor Ross’s affidavit, the warning barricades were placed blocking the entrance to Oak Grove Road at approximately 9:00 p.m., and they were still in place when he left the area at 11:30 p.m. Aultman’s incident occurred less than one hour later. Aultman claims that the only barricade she saw at the time of her accident was “12-15 car lengths back from the huge crevasse.” However, Ault-man has failed to create a genuine issue of material fact as to whether the barricades had been placed as represented by Lawrence County. Even if the warning signs were moved to the side of the road and the barrels knocked into the crevasse as was claimed in the other affidavits, logic would dictate that a third party was responsible. Moreover, as Lawrence County argues: “[I]t cannot be said that enough time had passed to place Defendant on constructive notice that the barricade had been moved, if they were even moved as [Aultman] contends.” Therefore, as an alternative means of affirmance, Lawrence County would also have immunity under section ll-46-9(l)(w).

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

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION. RUSSELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.

CARLTON, J.,

concurring in result only:

¶ 19. I concur in the result reached by the majority but do so upon a different rationale than the majority.

¶ 20. In granting summary judgment, the trial court found that no triable issue existed since Lawrence County possessed immunity under the exception enumerated in Mississippi Code Annotated section 11-46 — 9(l)(d) (Supp.2011). However, the trial court further provided that Lawrence County possessed immunity under Mississippi Code Annotated section 11^6-9(l)(v) (Supp.2011), since the crevasse in the middle of the road “would be obvious to one exercising due care.” I concur in the result reached by the majority and the trial court based upon this latter ground.

¶ 21. The majority finds no error, even though neither the trial court nor this Court utilized the second part of the two-prong discretionary-function test, which involves a determination of whether the choice or judgment by Lawrence County constituted social, economic, or political alternatives. The majority finds the comprehensive language in the trial court’s order was sufficient to indicate that Lawrence County’s decision to place barricades and barrels at or near the crevasse was a discretionary function for which ordinary care is not required. I disagree, and respectfully submit that such determination requires a full analysis in accordance with the two-prong test set forth by the Mississippi Supreme Court. See Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 968 (¶ 19) (Miss.Ct.App.2009) (citing Dancy v. E. Miss. State Hosp., 944 So.2d 10, 16 (¶ 18) (Miss.2006)) (To determine whether governmental conduct is discretionary, a court must address two questions: “(1) whether the activity involved an element of choice or judgment; and if so, (2) whether the choice or judgment in supervision involves social, economic or political policy alternatives.”).

¶ 22. This case reflects no determination by this Court nor the trial court of whether Lawrence County’s decision in issue constituted a discretionary function by utilizing both parts of the two-prong test. I respectfully submit that we should decide this case in accordance with the second basis of immunity under section 11-46-9(l)(v), set forth by the trial court in support of its grant of summary judgment. I therefore concur in result with the majority.

      . The method for determining whether an act is discretionary or ministerial has been clearly established. See Covington County Sch. Dist. v. Magee, 29 So.3d 1, 5-6 (¶ 8) (Miss. 2010); Dancy v. East Miss. State Hosp., 944 So.2d 10, 16 (¶ 19) (Miss.2006) (finding that a duty .is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee); Miss. Dep’t of Mental Health v. Hall, 936 So.2d 917, 924-25 (¶ 17) (Miss.2006) (explaining that a duty is ministerial if positively imposed by law and required to be performed at a specific time and place, removing the duty from an officer’s or entity's choice or judgment).


author: MAXWELL, J., CARLTON, J.,

text:
    Dennis JEFFERSON a/k/a Dennis E. Jefferson, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-00265-COA.
    Court of Appeals of Mississippi.
    July 31, 2012.

      Dennis Jefferson, appellant, pro se.
    Office of the Attorney General by Roger Googe Jr., attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In 2009, the Mississippi Legislature created a statutory right to compensation by the State for “innocent people” wrongfully convicted and imprisoned. The following year, Dennis Jefferson petitioned for statutory compensation. Jefferson claimed he was entitled to compensation because this court reversed his burglary conviction in 2008 and, under the direct-remand rule, remanded his case to the circuit court for resentencing for the lesser-included crime of willful trespass. Because the Legislature did not expressly provide for compensation when reversal of a conviction results in a direct remand for sentencing on a lesser-included crime, we affirm the circuit court’s dismissal of Jefferson’s compensation claim.

BACKGROUND

I. Mississippi’s Compensation Act for Wrongful Conviction and Imprisonment

¶ 2. In 2009, the Legislature enacted a civil procedure for “innocent people” wrongfully convicted and imprisoned to be financially compensated for “the particular and substantial horror of being imprisoned for a crime one did not commit.” Miss. Code Ann. § 11-A4-1 (Supp.2011). Jurisdiction lies in the circuit court where the conviction occurred, and the defendant is the State, represented by the Attorney General’s Office. Miss.Code Ann. § 11-44-5 (Supp.2011). “Persons convicted, incarcerated and released from custody pri- or to July 1, 2009, shall commence an action under this chapter not later than June 30, 2012.” Miss.Code Ann. § 11-44-9(1) (Supp.2011). Otherwise, an action “shall be commenced within three (3) years after either the grant of a pardon or the grant of judicial relief and satisfaction of other conditions described in [sjection 11-44-3(1).” Id.

¶ 3. Pursuit of a claim under this statute is in lieu of a claim under the Mississippi Tort Claims Act (MTCA) and is not subject to the same immunities or notice provisions of the MTCA. Miss.Code Ann. §§ ll-14-7(4)-(5), 11-14-9(2) (Supp.2011). But “[a]ny claimant who receives compensation under this chapter shall sign a release from all claims against the state regarding the incarceration for which the claimant receives compensation.” Miss. Code. Ann. § 11-44-15 (Supp.2011).

¶ 4. Mississippi Code Annotated section 11-44-3 (Supp.2011) sets forth what a claimant must establish in order to survive dismissal by the circuit court. If a claimant establishes a claim under section 11-44-3, he must then meet the burden of proof under Mississippi Code Annotated section 11-14-7(1) (Supp.2011). If a claimant meets this burden, he or she is entitled to “Fifty Thousand Dollars ($50,000.00) for each year of incarceration regardless of the number of felonies for which a claimant was convicted” and reasonable attorney’s fees. Miss.Code Ann. § 11-44-7(2) (Supp.2011).

II. Jefferson’s Burglary Conviction and Appeal

¶ 5. Jefferson was charged with violating Mississippi Code Annotated section 97-17-23(1) (Rev.2006), which criminalizes “burglary of a dwelling house.” Jefferson v. State, 977 So.2d 431, 435 (¶10) (Miss.Ct. App.2008). After a jury trial, he was found guilty of burglary of a building other than a dwelling under Mississippi Code Annotated section 97-17-33 (Rev.2006), which the State incorrectly argued was a lesser-included offense. Jefferson, 977 So.2d at 435 (¶ 10) & n. 2. Jefferson was sentenced to seven years’ imprisonment and ordered to pay a $10,000 fíne. Id. at 436 (¶ 11).

¶ 6. On direct appeal, this court reversed Jefferson’s conviction and sentence because the evidence was not legally sufficient to convict Jefferson of either dwelling-house or non-dwelling-house burglary. Id. at 437 (¶¶ 14-16). We found it was “clear there was a theft from an open, freestanding structure, and a possible entry of a freestanding shed.” Id. at 457 (¶ 16). But because the shed was not attached to the house, we held there could be no “burglary of a dwelling.” Id. at 438 (¶ 18). We also found the evidence insufficient to establish a burglary of a “non-dwelling house” because there was no evidence of a breaking and entering. Id. at 437 (¶ 16).

¶ 7. However, because “[i]mplicit in every conviction of burglary ... is a finding that the defendant committed a trespass,” this court, under the direct-remand rule, remanded the case to the Yazoo County Circuit Court for resentencing for willful trespass. Id. at 437-38 (¶¶ 17-18). We held:

Viewing the proof in a light most favorable to the prosecution, we find that the evidence presented at trial was sufficient to uphold a finding of guilty upon a charge of trespass. This conclusion stems from either Jefferson’s participation as a principle in the trespass, which could be gleaned from Coleman’s testimony, or as an aider and abetter as a result of Huffman’s testimony.

Id. at (¶ 18).

III. Jefferson’s Petition for Compensation

¶ 8. On June 23, 2010, Jefferson filed pro se a “Petition Pursuant to SB 3024” in the Yazoo County Circuit Court, the court where he had been convicted of burglary. Senate Bill 3024 was codified as Mississippi Code Annotated sections 11 — 44-1 to 11-44-15. The circuit court correctly recognized that Jefferson had filed a petition for compensation for wrongful conviction.

¶ 9. Jefferson named as defendants the State of Mississippi, Yazoo County, the Yazoo County District Attorney, and an unspecified Yazoo County supervisor. But there is no evidence these entities or persons were served with process, and none filed a response. Jefferson attached no exhibits to his petition, but he did specifically reference this court’s published opinion that reversed his sentence for burglary and directly remanded the case for him to be sentenced for criminal trespass. Jefferson alleged he had served approximately twenty months in the custody of the Mississippi Department of Corrections before his release on April 16, 2006, two weeks after the mandate to resentence him was issued.

¶ 10. Jefferson claimed he was wrongfully convicted and sentenced. He requested $50,000 in compensation and a declaratory judgment that his due-process rights were violated. He also requested appointed counsel and permission to amend his complaint.

¶ 11. On November 22, 2010, the circuit court issued an order finding Jefferson’s petition failed to comply with section 11-44-3. The circuit court dismissed the entire petition as improper.

¶ 12. Though no motion for reconsideration appears on the circuit court’s docket or in the record, the circuit court did enter an order denying Jefferson’s motion for reconsideration on January 20, 2011. Jefferson timely appealed this order.

¶ 13. We note that the circuit court incorrectly granted Jefferson leave to file his appeal in forma pauperis. Jefferson’s compensation claim is a civil matter. And “the right to appear in forma pauperis in a civil matter exists at the trial level only.” Ivy v. Merchant, 666 So.2d 445, 450 (Miss.1995) (citing Moreno v. State, 637 So.2d 200, 202 (Miss.1994); Nelson v. Bank of Miss., 498 So.2d 365, 366 (Miss.1986)). In contrast to Mississippi Code Annotated section 99-39-25 (Rev. 2007), which expressly permits a claimant under the Uniform Post-Conviction Collateral Relief Act to appeal “on such terms and conditions as are provided for in criminal cases,” Mississippi Code Annotated section 11-44-11 (Supp.2011) entitles a compensation claimant “to appeal the decision as in other civil cases.” (Emphasis added). The compensation statute gave the circuit court no authority to grant Jefferson’s motion to proceed in forma pauperis. Consequently, the citizens of Yazoo County are unduly burdened to pay the costs of this appeal.

DISCUSSION

¶ 14. On appeal, Jefferson argues the circuit court erroneously dismissed his compensation claim against the State. Specifically, Jefferson claims the circuit court dismissed his petition with prejudice without permitting him ninety days to refile.

¶ 15. The record clearly shows Jefferson’s petition was dismissed without prejudice. Section 11 — 44—3(1)—(2) lists specific requirements to establish a claim for compensation. And section 11-44-3(3) expressly authorizes the circuit court “on its own motion” to dismiss a claim “[i]f the court finds after reading the claim that the claimant has not demonstrated” the requirements of section 11 — 44—3(1)—(2). A dismissal under section 11-44-3(3) “shall be without prejudice to allow adequate refiling within ninety (90) days.”

¶ 16. The statute gave Jefferson the right to refile within ninety days. Nowhere in its order did the circuit court restrict this right by dismissing the petition with prejudice. And nowhere in the record did the circuit court deny Jefferson’s attempt to refile his petition. After dismissal, Jefferson chose not to refile his petition but instead filed an unsuccessful motion for reconsideration, followed by this appeal. Thus, it was his own ae-tions — and not the circuit court’s erroneous application of section 11-44-3(3) — that led to him not refiling a petition within ninety days.

¶ 17. This leaves us with the more salient issue — whether Jefferson’s petition, as filed, failed to meet the requirements of section 11 — 44—3(1)—(2) and, consequently, was properly dismissed under section 11-44-3(3). We review the circuit court’s dismissal of Jefferson’s claim de novo. See Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶ 6) (Miss.2006) (reviewing motion to dismiss de novo). Further, this particular dismissal required interpreting a statute, which is a question of law that we likewise review de novo. See Coleman v. State, 947 So.2d 878, 880 (¶ 9) (Miss.2006).

¶ 18. Under section 11-44-3(1):

In order to present an actionable claim for wrongful conviction and imprisonment under this section, a claimant must establish by documentary evidence that:
(a) The claimant has been convicted of one or more felonies and subsequently sentenced to a term of imprisonment and has served all or any part of the sentence;
(b) On grounds not inconsistent with innocence:
(i) The claimant was pardoned for the felony or felonies for which sentenced and which are the grounds for the complaint and the pardon is based on the innocence of the claimant which must be affirmatively stated in the pardon; or
(ii) The judgment of conviction was vacated and/or reversed;
(c) If there was a vacatur or reversal, either the accusatory instrument was dismissed or nol prossed; or if a new trial was held, the defendant was found not guilty;
(d) The claimant’s claim is not time-barred by the provisions of this chapter; and
(e) The claimant did not intentionally waive any appellate or post-conviction remedy otherwise available in order to benefit under this chapter.

And under section 11-44-3(2), “the claim shall be verified by the claimant.”

¶ 19. After review, we agree with the circuit court that Jefferson’s petition was deficient. While the circuit judge did not explain in her order why Jefferson’s petition failed to comply with section 11^14-3, we specifically find Jefferson failed to establish he met the requirements of section ll-44-3(l)(c).

¶ 20. As a preliminary matter, Jefferson attached no documentary evidence to his petition. See Miss.Code Ann. § 11-44-3(1). While this omission is a failure to strictly comply with the statute, we do take judicial notice of this court’s own published opinion — which Jefferson referenced in his petition — that states Jefferson was convicted of the felony of burglary and sentenced, and that his burglary conviction was reversed by this court. See Miss. Code Ann. §§ ll-44-3(l)(a), 11-44-3(l)(b)(ii).

¶ 21. Even assuming this court’s opinion was enough to establish the requirements of section 11^44-3(l)(a), we find this court’s exercise of the direct-remand rale and mandate that Jefferson be resen-tenced for a lesser-included crime does not fit within the plain language of section 11-44 — 3(l)(c). This section makes clear that having a conviction vacated or reversed is not enough — just as the mere receipt of a pardon is not enough but, instead, the pardon must also expressly state it is based on the claimant’s innocence. Miss. Code. Ann. § ll-44-3(l)(b)(i).

¶ 22. Section 11^44-3(l)(c) clearly and unambiguously requires, “[i]f there was a vacatur or reversal,” the claimant must also establish by documentary evidence that “either the accusatory instrument was dismissed or nol prossed[,] or if a new trial was held, the defendant was found not guilty[.]” As written, this is an express additional requirement that Jefferson has failed to meet.

¶ 23. Jefferson argues because the effect of this court’s exercise of the direct-remand rale was that his indictment was nol prossed, he has met the statute’s requirements. Indeed, our goal in applying section 11-44-3(1) is “to give effect to the intent of the Legislature.” Lawson v. Honeywell Int’l, Inc., 75 So.3d 1024, 1027 (¶ 7) (Miss.2011) (citing City of Natchez, Miss. v. Sullivan, 612 So.2d 1087, 1089 (Miss.1992)). But we do this by looking to the language of the statute and applying its plain meaning when the words are clear and unambiguous. Id. It is not our function “to decide what a statute should provide, but to determine what it does provide.” Id. (citing Russell v. State, 231 Miss. 176, 181, 94 So.2d 916, 917 (1957)) (emphasis added). And while section 11-44 — 3(l)(c) does provide a viable claim for compensation when an accusatory instrument was nol prossed following reversal or a not-guilty verdict was obtained, it does not provide for a viable claim when a reversal was part of a direct remand for sentencing on a lesser-included crime.

¶ 24. This court is without authority to broaden the statute beyond its plain language. Lawson, 75 So.3d at 1027 (¶ 7) (citing Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (¶ 13) (Miss.2008)). Therefore, we decline to create a claim where statutory requirements have not been met and criminal acts were still prevalent and sufficient for direct remand on a lesser criminal offense. We thus affirm the circuit court’s dismissal of Jefferson’s claim.

¶ 25. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. CARLTON, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION. IRVING, P.J., AND RUSSELL, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION.

CARLTON, J.,

specially concurring:

¶ 26. I specially concur with the majority’s result to affirm the trial court’s dismissal of Jefferson’s entire complaint. I write separately to address the requirements set forth in Mississippi Code Annotated section 11-44-3(1), the statute under which Jefferson seeks relief on appeal.

¶27. Even though this Court, on appeal, overturned Jefferson’s conviction for the greater offense of burglary of a building other than a dwelling due to legal insufficiency, Jefferson was found guilty of a lesser-included offense, willful trespass, based upon the same set of facts. His case was remanded for sentencing for the lesser-included offense of trespass, which arose out of the same set of facts as the burglary of a building offense. Therefore, Jefferson failed to meet his burden to show factual innocence as required by section 11 — 44—3 (1) .

¶28. Mississippi Code Annotated sections 11-44-1 through 11-44-15 apply to innocent persons who have been wrongfully convicted. Jefferson’s complaint fails to demonstrate factual innocence; therefore, I concur with the majority’s decision to affirm the trial court’s dismissal of Jefferson’s claim for compensation for failure to state a claim. The plain language of the statute reflects the Legislature’s intent to require proof of actual innocence. See § 11-44-1; see also State ex rel. Abbott v. Young, 265 S.W.3d 697, 701 (Tex.App.2008) (finding statutory language required factual innocence, not legal innocence, in dismissed claim of former prisoner who obtained reversal of his appeal and acquittal on direct appeal based upon legal insufficiency of evidence). In finding more is required than showing a conviction was overturned or vacated, the Louisiana Appeals court addressed the distinction of factual innocence from a finding of legal innocence in the case of In re Williams, 984 So.2d 789, 793-94 (La.Ct.App.2008).

¶ 29. The In re Williams court explained that to show factual innocence, the claimant must prove “that he did not commit the crime for which he was convicted or any crime based on the same set of facts used in that conviction.” Id. at 793. In the present case, Jefferson’s conviction for the greater offense of burglary of a building was set aside based upon legal insufficiency. However, the case was remanded for re-sentencing on the lesser-included offense of trespass, which was clearly supported by the evidence in the record and clearly supported by the same set of facts for a lesser-included offense. Since Jefferson was not granted relief based upon actual innocence, his claim is barred by sovereign immunity. See Miss. Code Ann. § 11-46-1 et seq. (Rev.2002).

¶ 30. Section 11-44-1 provides:

The Legislature finds that innocent persons who have been wrongly convicted of felony crimes and subsequently imprisoned have been uniquely victimized, have distinct problems reentering society, and should be compensated. In light of the particular and substantial horror of being imprisoned for a crime one did not commit, the Legislature intends by enactment of the provisions of this chapter that innocent people who are wrongfully convicted be able to receive monetary compensation.

¶ 31. In conclusion and as set forth above, since Jefferson failed in his burden of showing innocence, I concur with the majority’s decision to affirm the trial court’s dismissal. Jefferson’s claim should be dismissed for failure to state a claim cognizable under section 11-44-1. Additionally, since Jefferson’s claim exceeds the waiver set forth in sections 11-44-1 through 11^44-15, I further submit that the claim is barred by sovereign immunity.

      . 2009 Miss. Laws Ch. 472.

      . Wilful trespass is a misdemeanor punishable by imprisonment in the county jail for no longer than six months. Miss. Code Ann. § 97-17-87(1) (Rev.2006). Jefferson filed his direct appeal in 2006. See Jefferson, 977 So.2d at 431 (docket number indicating appeal was filed in 2006). Because Jefferson had already served at least six months in prison, it appears from Jefferson’s petition that he was released when the circuit court received this court's mandate in April 2008.

      . Because we find Jefferson's compensation claim was properly dismissed, his request for appointed counsel to pursue this claim is moot. We do note that a claim for compensation under the wrongful-conviction-and-imprisonment statute is a civil action. Thus, no claimant has a constitutional or statutory right to counsel. Cf. Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir.2007) (holding "there is no automatic right to appointment of counsel in a civil rights case"). But Mississippi Code Annotated section 11 — 44—7(2)(b) does grant successful claimants the statutory right to reasonable attorney's fees.

      . As no responsive pleading had yet been filed, we note Jefferson had the right to amend his petition as a "matter of course” under Mississippi Rule of Civil Procedure 15(a).

      . In his brief, Jefferson asserts he filed a motion for reconsideration on November 24, 2010.

      . Under section 11-44-5, the State is the only respondent to a statutory claim for compensation. Jefferson’s notice of appeal was only served on the Attorney General, the State’s designated representative. Id. No other named defendants are part of this appeal.

      . We further note Jefferson provided no documentary evidence that he actually served part of his sentence prior to this court’s reversal of his burglary conviction. See Miss.Code Ann. § 11 —44—3 (1 )(a).

      . See generally McKay v. United States, 657 F.3d 1190, 1196 (11th Cir.2011); Delgado v. United States, 475 Fed.Appx. 717, 718-19 (11th Cir.2010) (citing Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)) (stating that actual innocence means factual innocence, not mere legal insufficiency).


author: GRIFFIS, P. J.,

text:
    Issac M. TILLMAN a/k/a Issac Marvin Tillman, Appellant v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2011-CA-01477-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      Paul E. Rogers, Jackson, attorney for appellant.
    Leland S. Smith III, Robert R. Stephenson Jr., Jackson, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
   GRIFFIS, P. J.,

for the Court:

¶ 1. Issac M. Tillman appeals the judgment of the circuit court dismissing his lawsuit filed against the Mississippi Department of Corrections (MDOC). Tillman alleged that MDOC failed to release him from incarceration upon completion of his sentence. He asserted claims of negligence, false imprisonment, negligent infliction of emotional distress and intentional infliction of emotional distress. The circuit judge granted MDOC’s motion to dismiss, finding Tillman’s claims were barred by Mississippi Code Annotated section 11-46-9(l)(m) (Supp.2011) of the Mississippi Tort Claims Act because he was an inmate at the time his claims arose. Tillman disagrees that his claims are barred, and he filed this appeal. We find no error and affirm.

FACTS

¶ 2. On August 29, 2000, Tillman entered a guilty plea on two counts of armed robbery. He was sentenced to serve ten years for each count, with the sentences running concurrent with each other and with a previous sentence that Tillman was already serving. The complaint filed in this case alleges that Tillman began to serve his two ten-year sentences on September 12,1998.

¶ 3. The complaint further states that Tillman’s original sentence expired on September 12, 2008; however, it claims that Tillman served an additional 478 days for the time during which Tillman had escaped from custody. That made his new release date, according to Tillman, on January 2, 2010. Tillman’s discharge certificate from MDOC shows that he was released on April 17, 2010.

¶ 4. On January 19, 2011, Tillman filed his complaint asserting claims of negligence, false imprisonment, negligent infliction of emotional distress and intentional infliction of emotional distress for the three and a half months he claims that he was unlawfully held in custody by MDOC. There is no evidence in the record that Tillman sought administrative or other relief during those three and a half months he claims he was unlawfully detained. See Miss.Code Ann. § 47-5-803 (Rev.2011) (requiring use of administrative procedures to preserve any cause of action against MDOC).

¶ 5. MDOC filed a motion to dismiss claiming it had no liability for Tillman’s claims because section ll-46-9(l)(m) provides an exemption from liability for all claims brought by inmates. After a hearing, the circuit judge granted MDOC’s motion to dismiss and dismissed Tillman’s complaint without prejudice.

STANDARD OF REVIEW

¶ 6. This Court employs a de novo standard of review for analyzing a trial court’s grant or denial of a motion to dismiss. Smith v. City of Saltillo, 44 So.3d 438, 440 (¶ 5) (Miss.Ct.App.2010).

ANALYSIS

¶ 7. Section ll-46-9(l)(m) states the following:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(m) Of any claimant who at the time the- claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed.

¶8. Tillman argues that the Tort Claims Act does not define the term “inmate.” He claims that an inmate is one who is lawfully held in the custody of MDOC. Because he contends that he was held unlawfully, he claims he was not an “inmate” under section ll-46-9(l)(m).

¶ 9. Tillman cites the supreme court’s holding in Love v. Sunflower County Sheriffs Department, 860 So.2d 797 (Miss. 2003). There, Yoshino Love was attacked by several inmates while in the process of bonding out of jail. Id. at 799 (¶ 2). The supreme court defined inmate as follows: “ ‘Inmate’ is defined as ‘a person confined to a prison, penitentiary or the like.’ Black’s Law Dictionary 788 (6th ed.1990).” Love, 860 So.2d at 800 (¶ 6) (quoting Wallace v. Town of Raleigh, 815 So.2d 1203, 1207-08 (¶ 16) (Miss.2002)). The court held that Love remained an inmate because he had not completed all of the necessary steps to be released on bond. Id. at 800-01 (¶ 8).

¶ 10. Tillman argues that he, unlike Love, had completed all the necessary steps to be released because he had served the entirety of his sentence. He asserts in his brief that MDOC had ignored his demands to be release from incarceration. But we again point out that the record shows no evidence that Tillman filed for any type of administrative relief within MDOC.

¶ 11. Section 11^6-9(l)(m) has been applied broadly to “any claim of any claimant who was an inmate at the time the claim arose.” Wallace, 815 So.2d at 1208 (¶ 17). In Wallace, the plaintiff argued that section ll-46-9(l)(m) should only apply to inmates who are actually on the premises of the jail. Wallace, 815 So.2d at 1207 (¶ 13). The supreme court disagreed, holding: “There is no restriction that the inmate must remain confined to the prison. The inmate remains an inmate while being transported, while participating in public service work programs or while on leave if a pass is granted.” Id. at 1207-08 (¶ 16) (citing Miss.Code Ann. §§ 47-5-401 through -421 (2000 & Supp.2001)).

¶ 12. The supreme court further stated: “This Court cannot presume the Legislature intended to limit liability to only those inmates on the premises but must presume the words in the statute were ‘intended to convey their usual meaning absent some indication to the contrary.’ ” Id. at 1208 (¶ 17) (quoting Buelow v. Kemp Co., 641 So.2d 1226, 1228-29 (Miss.1994)). “The Legislature expressly stated the governmental entity would be immune from all liability from any claim of any claimant who was an inmate at the time the claim arose.” Id. (citing Miss.Code Ann. § 11— 46-9(l)(m)).

¶ 13. In Liggans v. Coahoma County Sheriff’s Department, 823 So.2d 1152, 1155 (¶ 7) (Miss.2002), the supreme court again applied a broad definition of inmate to also include a plaintiff who was “merely a pretrial detainee, one who had been arrested and charged, but [who was] not a convicted inmate.” The court cited the Fifth Circuit’s opinion in Jones v. City of Jackson, 203 F.3d 875 (5th Cir.2000), which held that summary judgment was proper based on the application of section ll-46-9(l)(m) because “Jones was incarcerated at the time of the events at issue.... ” Liggcms, 823 So.2d at 1155 (¶ 9). It was not required that the plaintiff be convicted to be considered an inmate under section 11-46-9(l)(m). Id. at (¶ 11).

¶ 14. Like Tillman, the plaintiff in Brooks v. Pennington, 995 So.2d 733, 737 (¶ 5) (Miss.Ct.App.2007), argued that section ll-46-9(l)(m) did not apply because he was never lawfully incarcerated. We noted: “[T]his Court has stated in dicta that ‘the Mississippi Tort Claims Act specifically excludes claims arising under state law while a person is lawfully incarcerated in a penal facility.’ ” Id. at (¶ 6) (quoting Harvison v. Greene County Sheriff Dep’t, 899 So.2d 922, 925 (¶8) (Miss.Ct.App. 2005)). However, we took the opportunity to clarify the language used in Harvison concerning the legal status of an inmate, stating: “In granting immunity from claims brought by an inmate, [sjection 11-46-9(l)(m) does not distinguish between those lawfully and those unlawfully within the custody of the state. Any indication otherwise in Harvison was nothing more than dicta.” Id. at (¶ 7).

¶ 15. Just as in the cases cited above, we decline Tillman’s request to narrow the definition of “inmate” to exclude an offender who alleges his sentence was calculated incorrectly. As MDOC states in its brief: “Tillman’s allegation that the MDOC incorrectly calculated the amount of time he should have served does not change his status as an inmate.” Tillman was unquestionably a person confined in the custody of MDOC when his claims arose. He had the opportunity to challenge the computation of his sentence through administrative review. Instead, he chose to wait until he was released and file a negligence claim against MDOC that is barred by section 11^6-9(l)(m) of the Tort Claims Act.

¶ 16. We affirm the circuit court’s dismissal of Tillman’s complaint.

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

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

      . Tillman's discharge certificate shows that he was also sentenced to serve two years for possession of cocaine.

      . The record shows no prosecution for this escape.

      . This Court held that the immunity provided in section ll-46-9(l)(m) did not apply in Brooks because the plaintiffs claims arose before he became an inmate. Brooks, 995 So.2d at 737-38 (¶ 8).


author: RUSSELL, J.,

text:
    Sonya PATTERSON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2011-CC-00824-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      Sonya Patterson, appellant, pro se.
    Albert B. White, Leanne Franklin Brady, attorneys for appellee.
    Before GRIFFIS, P.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Sonya Patterson appeals the Circuit Court of Alcorn County’s judgment affirming the decision of the Mississippi Department of Employment Security (MDES) Board of Review denying unemployment benefits. Patterson asserts that the Al-corn County Circuit Court erred by finding there was substantial evidence to conclude she violated her employer’s policy by committing misconduct connected with her work. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. From June 11, 2007, to August 20, 2010, Patterson was employed with Direct General Insurance Agency (Direct) as an agent manager.

¶ 3. Patterson sent an email to her supervisor, Noel Coward on August 11, 2010. In the email, Patterson stated that Rides-to-Go (Rides) was sending all of its white customers to another insurance company and only African-American customers to Direct.

¶ 4. On August 12, 2010, a telephone conversation occurred between Patterson and Allison Albarracin, an employee for Rides. Some of the facts of this conversation are disputed. However, it is undisputed that following the conversation, Al-barracin called Coward complaining about Patterson’s accusations of racism, and asked Coward to investigate.

¶ 5. Following Coward’s investigation, Patterson was terminated on August 20, 2012, for violating the standard-of-conduct policy after she allegedly made a racial remark to one of Direct’s vendors. She also made misrepresentations during the investigation.

¶ 6. After her termination, Patterson filed for unemployment benefits, which were granted by the claims examiner. The examiner found Direct had failed to prove that Patterson was discharged for misconduct. Direct appealed to the MDES.

¶ 7. After a telephonic hearing, the administrative law judge (ALJ) found that Patterson was discharged for willfully and wantonly violating the employer’s policy for rudeness, unprofessional and unethical conduct, asking a vendor or a company referring customers a racial question, and dishonesty during the investigation. Thus, the ALJ found that Patterson had been discharged for misconduct relating to her work and was disqualified from receiving unemployment benefits.

¶ 8. Patterson then appealed to the MDES Board of Review, which affirmed the ALJ’s decision. Patterson again appealed to the Circuit Court of Alcorn County, which affirmed the Board of Review’s decision. Patterson now appeals to this Court.

STANDARD OF REVIEW

¶ 9. Our standard of review as applied to appeals from the decisions of the MDES Board of Review is limited. Mississippi Code Annotated section 71-5-531 (Rev. 2011) states: “In any judicial proceedings under this section, the findings of the [Bjoard of [Rjeview as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.”

¶ 10. The Mississippi Supreme Court has previously stated:

Where there is the required substantial evidence, this Court has no authority to reverse the circuit court’s affirmance of the decision of the Board of Review. The board’s findings of fact are conclusive if supported by substantial evidence and without fraud. Therefore, [the appellate court] must not reweigh the facts of the case or insert its judgment for that of the agency.

Broome v. Miss. Employment. Sec. Comm’n, 921 So.2d 334, 337 (¶ 12) (Miss.2006) (internal citations and quotations omitted).

DISCUSSION

¶ 11. The question presented is whether there was substantial evidence to support the disqualification of Patterson from unemployment benefits because she committed disqualifying misconduct pursuant to Mississippi Code Annotated section 71-5-513(A)(l)(b) (Rev.2010) by willfully and wantonly violating her employer’s policy prohibiting rude and unprofessional conduct.

¶ 12. Although Patterson asserts that Direct failed to provide substantial evidence that her termination was due to her misconduct, she fails to provide or cite any authority in support of her argument. Failure to cite any authority is a procedural bar, and this Court is under no obligation to consider the assignment of error. Powell v. Cohen Realty, Inc., 803 So.2d 1186,1190 (¶ 5) (Miss.Ct.App.1999).

¶ 13. Notwithstanding the procedural bar, we find this issue to be without merit. Section 71-5-513(A)(l)(b) provides that an individual may be disqualified from receiving unemployment benefits if “he was discharged for misconduct connected with his work.” In misconduct cases, the employer bears the burden of showing by “substantial, clear, and convincing evidence that the former employee’s conduct warrants disqualification from eligibility [for] benefits.” Shavers v. Miss. Employment Sec. Comm’n, 763 So.2d 183, 185 (¶ 8) (Miss.2000). “Misconduct imports conduct that reasonable and fair-minded external observers would consider a wanton disregard of the employer’s legitimate interests.” Id. “Something more than mere negligence must be shown.... ” Id.

¶ 14. Direct alleges that Patterson violated an employee policy regarding the standard of conduct. The Mississippi Supreme Court has held that an employee is disqualified from receiving unemployment benefits where the employee violated an employer’s policy or otherwise failed to meet a required condition of employment. Richardson v. Miss. Employment Sec. Comm’n, 593 So.2d 31, 33 (Miss.1992).

¶ 15. Direct’s employment policy lists unprofessional conduct, such as not telling the truth or being dishonest in an investigation, as grounds for termination. The standards of behavior prohibit the use of any language or other conduct that conflicts with the company’s goals, including harassment or rudeness directed towards vendors and dishonesty.

¶ 16. Coward testified that he received a call from Albarracin, who was upset by Patterson’s accusations of racism. Coward initiated an investigation into the incident.

¶ 17. Coward testified that he spoke to Patterson, who admitted that she had called Albarracin to ask about the pattern she noticed of Rides sending only African-American customers to Direct and white customers to Alpha. Coward stated he told Patterson that such a question was unprofessional. When he asked Patterson to apologize, she refused and stated that if she did apologize, Coward would have to bail her out of jail.

¶ 18. Coward testified that when he asked Patterson to write out her side of the story, she changed her story and stated it was Albarracin who actually brought up the alleged racial pattern. According to Coward, Patterson repeatedly denied making the statement to Albarracin.

¶ 19. Coward also testified that one of Patterson’s witnesses informed him that he did not overhear the conversation between Patterson and Albarracin as alleged by Patterson because he was with a customer. Coward concluded his investigation and decided to terminate Patterson based on her unprofessional conduct and rudeness, as well as for giving false statements during the investigation.

¶ 20. Patterson argues that the circuit court did not have a clear and complete statement of the facts concerning her dispute with MDES and Direct, and therefore, could not deliver a decision in her favor. She also argues that she committed no misconduct and that Direct submitted no corroborating testimony, either written or verbal, to substantiate the allegations made against her by Albarracin. Patterson also claims that during the telephonic hearing she was not asked any questions regarding her claim or allowed to make a statement or present evidence to support her claim.

¶ 21. However, the record reflects otherwise. Patterson was given ample opportunity to present her side of the case. Patterson provided the statements of two witnesses who she alleged were in the room during her telephone conversation with Albarracin. These witnesses wrote that they did not hear Patterson say anything racial. Patterson also testified that these witnesses could hear Albarracin screaming loudly on the phone. Patterson’s witnesses did not testify, and the ALJ explained to Patterson multiple times that the witnesses’ statements would not be admitted into evidence because the ALJ needed to hear the testimony of Patterson’s witnesses and allow them to be cross-examined.

¶22. Patterson argues that she called Rides to inquire as to who Direct’s top competitor was. Patterson stated that Al-barracin wanted to know why Patterson was asking. Patterson answered that she was merely curious. According to Patterson, Albarracin started cursing very loudly, stating: “We would send y’all customers too if y’all didn’t put all that extra sh* * on people’s policies. Alpha pays us for referrals[,] so why can’t y’all?”

¶ 23. Patterson confirmed that she refused when asked by Coward to apologize. Patterson also testified that she told Coward it was Albarracin who had been offensive and had used vulgar language.

¶ 24. Our supreme court has stated that “the meaning of the term ‘misconduct,’ as used in the unemployment compensation statute, was conduct evincing such wilful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee.” Wheeler v. Arriola, 408 So.2d 1881, 1383 (Miss.1982). Patterson’s conduct is in line with our supreme court’s definition of “misconduct” found in Wheeler. Id.

¶ 25. The Board of Review is the fact-finder. We must not reweigh the evidence, but determine if the decision is supported by substantial evidence. As the fact-finder, the Board of Review weighs the credibility given to the testimony and the evidence.

¶ 26. The ALJ and the Board of Review found that Patterson was discharged due to her behavior towards the vendor and Albarracin in addition to her untruthfulness during the investigation into the incident. The ALJ and the Board of Review found that there was ample evidence to support the finding that Patterson willfully and wantonly failed to adhere to the company’s policy regarding professional conduct. They also found the evidence substantiated a finding against Patterson that her misconduct was connected with her work. We agree that when viewed together, the decision of the ALJ and the Board of Review is supported by substantial evidence.

¶ 27. Finding that there was substantial evidence that Patterson committed disqualifying misconduct pursuant to section 71 — 5—513(A)(1)(b), we affirm.

¶ 28. THE JUDGMENT OF THE AL-CORN COUNTY CIRCUIT COURT AFFIRMING THE DENIAL OF BENEFITS IS AFFIRMED.

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


author: ROBERTS, J.,

text:
    Louise J. PIERNAS, Appellant v. Charlene CAMPISO, Appellee.
    No. 2011-CA-00861-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      James L. Gray, Picayune, attorney for appellant.
    Jason Brooks Purvis, Lawrence Matthew Quinlivan, Gulfport, attorneys for ap-pellee.

      Before LEE, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Louise J. Piernas sued her neighbor, Charlene Campiso, to resolve the location of the boundary between their two properties. Alternatively, Piernas claimed she had adversely possessed a thirty-foot strip of Campiso’s property. After Campiso successfully moved for summary judgment, Piernas filed a “motion to vacate summary judgment” under Rule 60(b) of the Mississippi Rules of Civil Procedure. However, the Hancock County Chancery Court found no merit to Piernas’s Rule 60(b) motion. Piernas appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1992, Piernas bought a lot in the Deer Park Subdivision located in Hancock County. In December 2008, Campiso bought a lot that adjoined Piernas’s. When Piernas saw a surveyor on Campi-so’s property, Piernas attempted to show the surveyor what she considered to be the boundary line that separated her and Campiso’s properties. Nevertheless, the surveyor set out stakes elsewhere. Pier-nas believed that the surveyor’s boundary line encroached onto a thirty-foot strip of her property.

¶ 8. On September 25, 2009, Piernas filed a complaint styled as a “petition to adjudicate boundary and other relief.” Pi-ernas requested that the chancery court adjudicate the boundary between her and Campiso’s properties. Alternatively, Pier-nas claimed she had adversely possessed a portion of Campiso’s property. Campiso disputed Piernas’s claims.

¶ 4. In May 2010, Campiso filed a motion for summary judgment. The chancellor conducted a hearing on Campiso’s motion during June 2010. Following the hearing, the chancellor noted that both Piernas and Campiso had “admitted that the correct property line is where [an] old fence was located prior to its destruction after Hurricane Katrina.” The chancellor also noted that Piernas had not filed any exhibits, affidavits, or other documentation to support her position that she had adversely possessed Campiso’s property. The chancellor concluded that Piernas had merely disputed the allegations in Campiso’s motion for summary judgment. The chancellor, therefore, held that Piernas had failed to rebut Campiso’s demonstration that there were no genuine issues of material fact to be resolved by a fact-finder. Accordingly, the chancellor granted Campi-so’s motion for summary judgment.

¶ 5. Next, Piernas moved to vacate summary judgment under Rule 60(b). Piernas argued that the chancellor’s decision was a “mistake of fact and law.” Piernas elaborated that she had filed her own affidavit in which she disputed Campiso’s claims. Piernas further argued that the chancellor mistakenly concluded that Piernas and Campiso had agreed on the position of the boundary between their properties. According to Piernas, she agreed that the “old fence line” was the boundary between her property and Campiso’s property, but the surveyor incorrectly determined that the “old fence line” encroached thirty feet onto Piernas’s property. Finally, Piernas argued that the chancellor should have allowed more time for her and Campiso to conduct discovery. Ultimately, the chancellor denied Piernas’s Rule 60(b) motion. Piernas appeals.

ANALYSIS

TIMELINESS

¶6. Piernas attempts to appeal two of the chancellor’s decisions. Piernas claims the chancellor erred when he granted Campiso’s motion for summary judgment. Piernas also claims the chancellor erred when he denied her Rule 60(b) motion.

¶ 7. The chancellor filed his order granting Campiso’s motion for summary judgment on September 20, 2010. There were two ways for Piernas to timely preserve that issue for appeal. First, Piernas could have appealed the chancellor’s decision within thirty days. M.R.A.P. 4(a). Piernas did not do so.

¶ 8. Alternatively, Piernas could have preserved the summary-judgment issue by filing a post-trial motion under Rule 60(b) or Rule 59 of the Mississippi Rules of Civil Procedure within ten days of the chancellor’s order granting summary judgment and then appealing an adverse ruling on her Rule 60(b) motion within thirty days. M.R.A.P. 4(d)(5). That is, “[i]f any party files a timely motion” for relief under Rule 60(b) within ten days after the entry of judgment, “the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding.” M.R.A.P. 4(d).

¶ 9. Piernas had until September 30, 2010, to file a Rule 59 or Rule 60 motion. She missed her opportunity. Pi-ernas filed her Rule 60(b) motion on October 6, 2010. “An untimely filed [Rule 60(b) motion] will not excuse an untimely filed [n]otice of [ajppeal, and clearly will not create or confer jurisdiction in this Court.” Byrd v. Biloxi Reg’l Med. Ctr., 722 So.2d 166, 169 (1112) (Miss.Ct.App. 1998). Therefore, Piernas had until October 20, 2010, to appeal the chancellor’s decision to grant Campiso’s motion for summary judgment. Piernas filed her notice of appeal on June 20, 2011. Consequently, Piernas did not timely appeal the chancellor’s decision to grant Campiso’s motion for summary judgment. However, Piernas timely preserved the chancellor’s decision to deny her Rule 60(b) motion.

¶ 10. “When reviewing a grant or denial of a Rule 60(b) motion, [an appellate court] will only reverse the ruling of a chancellor upon the finding of abuse of discretion.” Cujfee v. Wal-Mart Stores, Inc., 977 So.2d 1187, 1191 (If 14) (Miss.Ct. App.2007) (quoting City of Jackson v. Jackson Oaks L.P., 860 So.2d 309, 311 (¶ 6) (Miss.2003)). Piernas argues that because there were genuine issues of material fact to be resolved by a fact-finder, the chancellor was mistaken when he granted Cam-piso’s motion for summary judgment. In other words, Piernas simply requested that the chancellor reconsider his decision.

¶ 11. The Mississippi Supreme Court has stated:

As a general rule, the “extraordinary relief’ provided for by Rule 60(b) ... will be granted “only upon an adequate showing of exceptional circumstances,” and gross negligence, ignorance of the rules, ignorance of the law, or carelessness on the part of the attorney will not provide sufficient grounds for relief.

Am. States Ins. Co. v. Rogillio, 10 So.3d 463, 474 (¶ 27) (Miss.2009) (quoting Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988)). Moreover, “Rule 60(b) motions should be denied where they are merely an attempt to reliti-gate the case.” Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984) (citation omitted). Piernas’s Rule 60(b) motion was nothing more than an attempt to revisit the chancellor’s decision to grant Campiso’s motion for summary judgment. A more appropriate means to that end would have been for Piernas to either (1) timely appeal the chancellor’s decision to grant Campiso’s motion for summary judgment or (2) file her Rule 60(b) motion within ten days of the chancellor’s decision to grant Campiso’s motion for summary judgment and then appeal an adverse ruling within thirty days. Piernas failed to do either of those things. Such a mistake “does not give rise to Rule 60(b)(2) relief.” Id. at 222. Therefore, we find that the chancellor did not abuse his discretion when he denied Piernas’s Rule 60(b)(2) motion. Accordingly, we affirm the chancellor’s judgment.

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

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


author: IRVING, P.J.,

text:
    James Edgar ROBERTSON III, Appellant v. Emily Paige ROBERTS, Appellee.
    No. 2010-CA-02115-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.

      Carrie A. Jourdan, attorney for appellant.
    Steven C. Wallace, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a custody dispute between James Edgar Robertson III (Trey) and Emily Paige Roberts (Emily), the natural parents of James Parker Robertson (Parker). The Lowndes County Chancery Court granted Emily’s petition to modify visitation and denied Trey’s counterpetition for sole custody of Parker. Feeling aggrieved, Trey appeals and argues that the chancery court erred in not granting his request for sole legal and physical custody.

¶ 2. Finding no error, we affirm.

FACTS

¶ 8. Trey and Emily were never married, and Parker is their only child together. On November 18, 2008, the chancery court granted Emily sole legal and physical custody of Parker subject to Trey’s visitation. On July 9, 2010, Emily filed a petition to modify Trey’s visitation schedule. Emily claimed that her impending move to New Mexico would make the current visitation schedule unworkable. In response, Trey filed a counterpetition for modification of custody, requesting sole legal and physical custody of Parker.

¶ 4. At the modification hearing, Emily testified that her relationship with Trey was “not a very good one.” In May 2009, Emily met United States Air Force Lieutenant Michael Mattingly while he was attending training in Columbus, Mississippi. When the Air Force transferred Lieutenant Mattingly to New Mexico in November 2009, the couple began to discuss marriage. On May 28, 2010, Emily and Lieutenant Mattingly were married. Emily testified that Lieutenant Mattingly and Parker had a great relationship. Additionally, Emily stated that because Parker was only four years old, he did not have a significant connection to Mississippi, other than his relationship with Trey’s family.

¶ 5. Trey testified that he had a very close family and that everyone lived within five miles of his home. He explained that he and Parker shared a special bond and that Parker also shared a close relationship with his family. Trey claimed that if the court gave him full custody of Parker, he would ensure that Emily’s local family members were involved in Parker’s life. Trey believed that Parker’s moving to New Mexico would adversely effect Parker because he would be moving away from “everybody he’s ever known.” According to Trey, a military lifestyle would be detrimental to Parker because it would involve constantly moving around the country. Trey claimed that Parker would never be-able to establish and maintain friendships and that he would never have a “normal childhood.”

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. An appellate court will not disturb a chancery court’s findings unless they are “manifestly wrong, clearly erroneous[,] or an erroneous legal standard was applied.” White v. White, 26 So.3d 342, 346 (¶ 10) (Miss.2010) (quoting R.K. v. J.K., 946 So.2d 764, 772 (¶ 17) (Miss.2007)). Trey argues that because he and Emily shared de facto joint physical custody, Emily’s impending move to New Mexico constitutes a material change in circumstances sufficient to warrant a change in custody. We disagree.

¶ 8. First, Emily and Trey did not have an arrangement that gave Trey de facto joint physical custody. The custody order provided that Emily “shall have the legal and physical custody of Parker[,] subject to the visitation ordered for [Trey].” Trey’s visitation schedule was as follows:

Every other weekend, ... from the child being released from [d]aycare on Friday afternoon until the child being returned to [d]aycare on the following Monday morning.
On Wednesday of each week, commencing when the child is released from [d]aycare and being returned to [d]ay-care on the following Thursday morning.

The court also granted Trey visitation on various holidays and birthdays. There is no evidence that Trey exercised more visitation with Parker than the chancery court granted to him. Thus, there is no evidence that Trey and Emily shared de facto joint physical custody. Even if Trey and Emily had an agreement that allowed Trey to spend more time with Parker, that agreement would not be superior to the court-ordered custody arrangement.

¶ 9. Secondly, the chancery court did not err in refusing to modify custody. The standard for modifying child custody requires the non-custodial parent to prove that “(1) there has been a substantial change in circumstances affecting the child; (2) the change adversely affects the child’s welfare; and (3) a change in custody is in the best interest of the child.” White, 26 So.3d at 349 (¶ 19) (quoting Johnson v. Gray, 859 So.2d 1006, 1013 (¶ 33) (Miss.2003)). In determining whether there has been a material change in circumstances, the chancery court must examine the totality of the circumstances. Id. It is well settled that the relocation of a parent alone does not automatically create a material change in circumstances sufficient to warrant modification of child custody. Lambert v. Lambert, 872 So.2d 679, 685 (¶ 24) (Miss.Ct.App.2003).

¶ 10. Trey argues that Emily’s move to New Mexico constitutes a material change in circumstances adverse to Parker’s welfare and that granting Trey sole physical and legal custody is in Parker’s best interest. However, Trey’s only basis for seeking modification of custody is Emily’s relocation to New Mexico. As previously stated, Emily’s relocation alone does not constitute a material change in circumstances. Accordingly, the chancery court did not err in refusing to modify custody. While it cannot be denied that Emily’s move effectively ends Trey’s mid-week visitation with Parker, the curtailment of Trey’s visitation rights is “legally irrelevant to the matter of permanent custody.” Id. at 685 (¶ 23) (quoting Spain v. Holland, 483 So.2d 318, 321 (Miss.1986)).

¶ 11. Furthermore, as the proponent of the motion to modify custody, Trey was required to show that Emily’s behavior, namely her move to New Mexico, had an adverse effect upon Parker. Trey failed to carry this burden. He could only speculate that a “military lifestyle” would mean that Parker “wouldn’t know what it’s like to have a normal childhood.” There was no evidence that Parker would suffer from the move to New Mexico with Emily. As such, this issue is without merit.

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

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


text:
    Mark BALIUS, Appellant v. Melanie GAINES, Appellee.
    No. 2010-CP-01243-COA.
    Court of Appeals of Mississippi.
    Aug. 7, 2012.
    Mark Balius, appellant, pro se.
    Wayne L. Hengen, Biloxi, attorney for appellee.
    Before IRVING, P.J., BARNES and CARLTON, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On June 13, 2000, an agreed judgment of paternity established that Mark Balius was the father of Jared Balius, a child born out of wedlock to Melanie Gaines on February 19, 1999. The Harrison County Chancery Court awarded physical custody to Gaines and liberal visitation to Balius. Since that time, the parties have engaged in continuous litigation regarding custody of and visitation with Jared. In fact, this is the third appeal brought to this Court by Balius. In this appeal, Balius argues that the chancellor erred by failing to recuse himself from the case. However, the chancellor recused himself from the matter long before Balius filed his notice of appeal. Therefore, Bali-us no longer has an issue in controversy, and his appeal is dismissed as moot.

¶ 2. Because we find that Balius’s appeal is frivolous, Gaines is entitled to attorney’s fees pursuant to Rule 38 of the Mississippi Rules of Appellate Procedure.

FACTS

¶ 3. Two chancellors had presided over and later recused from this case prior to its assignment to Judge Sanford R. Steck-ler. Judge Steekler’s assignment followed the recusal of Judge Carter O. Bise in 2002. On August 20, 2009, Balius, acting pro se, filed a motion to recuse Judge Steckler. In his motion, Balius alleged that Judge Steckler’s comments during a hearing held on November 3, 2008, indicated his bias against Balius. The comments were as follows:

THE COURT: And I’m saying, Mr. Balius, you have not acted reasonably in dealing with this stuff since I got into this case. Since the day that Judge Bise was so extremely frustrated with you, that he was red in the face and asked me to take the case because he just didn’t feel like he could emotionally deal with you anymore.

According to Balius, Judge Bise’s comments to Judge Steckler negatively influenced Judge Steckler. Furthermore, Bali-us complained that Judge Steckler had concealed the conversation from the time of his assignment in 2002 until the hearing in 2008.

¶ 4. On October 29, 2009, Balius filed an amended motion to recuse. In his amended motion, Balius argued for Judge Steck-ler’s recusal based on the fact that Balius had recently filed a complaint against Judge Steckler with the Mississippi Commission for Judicial Performance. On October 30, 2009, prior to receiving Balius’s amended motion, Judge Steckler entered an order denying Balius’s original motion to recuse. In the court’s order, Judge Steckler explained that Balius’s original motion to recuse did not comply with the procedural requirements set forth under Rule 1.11 of the Uniform Chancery Court Rules. Specifically, the motion did not contain an affidavit “setting forth the factual basis underlying the asserted grounds for recusal,” and Balius had failed to file it “within 30 days after [he] could [have] reasonably discovered] the facts underlying the grounds asserted.” UCCR 1.11. Furthermore, Judge Steckler determined that Balius’s allegations of bias were without merit.

¶ 5. On November 4, 2009, Judge Steck-ler entered an order denying Balius’s amended motion to recuse. Judge Steck-ler acknowledged Balius’s complaint with the Mississippi Commission on Judicial Performance, but he refused to recuse himself from the matter. On November 20, 2009, Balius filed a notice of appeal. However, in his notice, Balius stated that he was appealing from the October 30, 2009 order denying his motion to recuse. The Mississippi Supreme Court dismissed Balius’s appeal as untimely under Rule 48B of the Mississippi Rules of Appellate Procedure. Based on our review of the record, Balius did not file a notice of appeal from the denial of his amended motion to recuse.

¶ 6. On February 18, 2010, Judge Steck-ler entered a sua sponte order of recusal. In the order, Judge Steckler explained that “upon mature reflection and in order to avoid and remove any perceived appearance of alleged impropriety, bias, or prejudice, and in the interest of all litigants, the undersigned [cjhancellor finds it necessary to recuse himself from this matter.” Following Judge Steckler’s recusal, the remaining chancellors in the Eighth Chancery Court District entered an order recusing themselves from the case and asking the supreme court to appoint a special chancellor to the case. Accordingly, the supreme court entered an order appointing Judge Hollis McGehee as special chancellor.

¶ 7. On June 30, 2010, Judge McGehee denied all of Balius’s pending motions. In response, Balius filed this appeal on July 23, 2010. Balius then filed an issue statement listing his sole issue on appeal: “Would [Judge Steckler’s] statements in court, on the record[,] and his subsequent actions[,] lead a reasonable person to believe that the [j]udge was biased against the [a]ppellant from the day he entered into the [a]ppellant’s case?”

¶ 8. Additional facts, as necessary, will be related in our analysis and discussion of the issue.

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 9. Balius argues that Judge Steckler erred in declining to recuse himself from the case. However, as stated above, Judge Steckler recused himself on February 18, 2010. Balius’s appeal challenging Judge Steckler’s impartiality came several months after Judge Steckler’s recusal and after an unfavorable ruling from Judge McGehee. Balius does not challenge Judge McGehee’s ruling on appeal. Accordingly, Gaines argues that Balius’s appeal is frivolous and asks this Court to award her costs and attorney’s fees.

¶ 10. Rule 38 of the Mississippi Rules of Appellate Procedure provides: “In a civil ease[,] if the Supreme Court or Court of Appeals shall determine that an appeal is frivolous, it shall award just damages and single or double costs to the appellee.” The comment to Rule 38 explains that “[t]he damages to be awarded may include attorneys’ fees and other expenses incurred by an appellee.” Our supreme court has stated that frivolity under Rule 38 is evaluated using the same standard that applies under Rule 11 of the Mississippi Rules of Civil Procedure. Hams v. Hams, 988 So.2d 376, 380 (¶ 16) (Miss.2008). Accordingly, an appeal is frivolous under Rule 38 where the appellant has no hope of success. Id.

¶ 11. Here, Balius complains that Judge Steckler improperly refused to re-cuse himself from the case, even though Judge Steckler entered a sua sponte order of recusal months before Balius filed his notice of appeal. Additionally, in a letter to Balius and Gaines’s attorney, which accompanied Judge McGehee’s June 30, 2010 order, the chancellor expressly stated that Balius’s motion to recuse Judge Steckler was moot. Furthermore, Judge McGehee cautioned Balius as follows:

The [c]ourt further notes that [Balius] is being given the benefit of the doubt as to the appropriateness of some of his pleadings. Such will not be the case if he pursues questionable remedies in the future. If there is a legally cognizable right that needs to be pursued that is certainly not discouraged, but efforts to get multiple bites at the same apple will likely not be well received.

Based on our review of the record, Balius had ample notice of Judge Steckler’s recu-sal, yet he pursued an appeal challenging the chancellor’s failure to recuse. Additionally, Judge McGehee warned Balius that if he chose to file meritless claims in the future, it would be at his peril. Accordingly, we find that Balius’s appeal is frivolous, as he clearly had no hope for success.

¶ 12. Having determined that Balius’s appeal is frivolous under Rule 38, we must next determine damages. Gaines urges this Court to award her attorney’s fees incurred in defending this appeal.

¶ 13. Balius proceeded pro se in this appeal. Our supreme court has consistently held that “[p]ro se parties should be held to the same rules of procedure and substantive law as represented parties.” Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss.2010) (quoting Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987)). However, the Litigation Accountability Act (LAA) provides:

No party, except an attorney licensed to practice law in this state, who is appearing without an attorney shall be assessed attorney’s fees unless the court finds that the party clearly knew or reasonably should have known that such party’s action, claim or defense[,] or any part of it was without substantial justification.

Miss.Code. Ann. § 11-55-5(4) (Rev.2002). The LAA defines “without substantial justification” as “frivolous, groundless in fact or in law, or vexatious.” Miss.Code. Ann. § ll-55-3(a) (Rev.2002).

¶ 14. Balius clearly knew that his appeal was without substantial justification; therefore, we find that an award of attorney’s fees is appropriate even though Bali-us is a pro se litigant. As such, we award Gaines attorney’s fees of $2,500.

¶ 15. THIS APPEAL IS DISMISSED AS MOOT. THE APPELLEE IS AWARDED ATTORNEY’S FEES OF $2,500. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Rule 48B provides, in pertinent part:
      If a judge of the circuit, chanceryL] or county court shall deny a motion seeking the trial judge's recusal, or if within 30 days following the filing of the motion for recu-sal the judge has not ruled, the filing party may within 14 days following the judge’s ruling, or 14 days following the expiration of the 30 days allowed for ruling, seek review of the judge's action by the Supreme Court.

      . Balius’s pending motions sought the amendment or reconsideration of various orders entered by Judge Steckler, sanctions against Gaines, and modification of custody and/or a change in visitation.