author: ROBERTS, J.,

text:
    Herbert TUCKER, individually and d/b/a H & G Construction, Inc., Appellants, v. Tyrone WILLIAMS and Sharon Williams, Appellees.
    No. 2007-CA-02223-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      K.F. Boackle, attorney for appellants.
    S. Malcolm 0. Harrison, attorney for appellees.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. After H & G Construction, Inc., filed two construction liens on Tyrone Williams and Sharon Williams’s property, the Williamses filed a complaint in the Hinds County Chancery Court accusing H & G and Herbert Tucker of slander of title. The Williamses attempted to serve H&G and Tucker with service of process. When neither H&G nor Tucker responded, the Williamses obtained a default judgment against both. Having unsuccessfully moved to set aside the default judgments, H&G and Tucker appeal. According to H&G and Tucker, the chancery court did not have personal jurisdiction to enter a default judgment against them because the Williamses failed to properly serve them with process. After careful consideration, we agree. Consequently, we reverse the chancellor’s judgment and remand this matter to the chancery court.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal was set into motion when the Williamses contracted with Tucker and H & G to build a house at lot twenty in the Levon Owens Estate subdivision in Hinds County, Mississippi. Tucker and the Williamses present different versions of events, but by any account, there was a dispute regarding the proper construction of the Williamses’ home. By all accounts, on November 3, 2006, H&G filed a notice of construction lien (lien one) for what would have been its final draw of approximately $34,000. Four days later, H&G discovered that the Williamses stopped payment on their check for the previous draw of approximately $50,000. Tucker filed a second notice of construction lien (lien two) for the amount represented in that previous draw.

¶ 3. On December 14, 2006, the Williamses filed a complaint in the Hinds County Chancery Court. The Williamses sued Tucker and H&G for slander of title and sought to remove the cloud upon their title created by Tucker’s two liens. The primary issue on appeal is whether the Williamses properly served Tucker and/or H&G.

¶ 4. According to the record, the Williamses twice tried to serve Tucker and H&G. The Williamses’ first attempt was by mail. Although the Williamses’ complaint recognizes that Tucker was H & G’s registered agent for service of process, on January 10, 2007, the Williamses mailed process to the attorney that filed H & G’s construction liens. The record indicates that on the same date, the Williamses sent certified mail to Tucker’s address and H & G’s business address. The record does not indicate that those pieces of certified mail were successfully delivered.

¶ 5. The Williamses’ second attempt occurred when a Hinds County deputy sheriff attempted to serve Tucker and H&G. On January 17, 2007, that deputy filed two return of service forms. There is a handwritten notation on those forms indicating that the deputy “posted” process to H & G’s property and Tucker’s property on January 8, 2006. Additionally, the deputy filed documents titled “certificate of service by mailing.” By way of those documents, the deputy indicated that he mailed process to Tucker and H & G on January 8, 2006.

¶ 6. The Williamses did not receive a response from Tucker or H & G. On February 12, 2007, the Williamses filed an application for entry of default. Three days later, the chancellor filed a final judgment of default and removed the clouds— Tucker’s construction liens — from the Williamses’ title.

¶ 7. H & G and Tucker claim that they were first served with process on Sunday, February 25, 2007. On March 27, 2007, H & G and Tucker filed a motion to dismiss or, alternatively, an answer and a counterclaim to the Williamses’ complaint. The Williamses did not respond to that motion and alternative pleading. On May 14, 2007, H & G and Tucker filed an application for entry of a default judgment. H & G and Tucker claim that, while attempting to schedule a hearing on the matter, their attorney discovered, for the first time, the existence of the Williamses’ default judgment in the court file.

¶8. On August 9, 2007, Tucker filed a motion to set aside the chancellor’s default judgment. Apparently, there was a hearing on Tucker’s motion on November 20, 2007, although the record does not contain a transcript of that hearing. In any event, three days later, the chancellor entered an order denying Tucker’s motion to set aside the Williamses’ default judgment. Specifically, the chancellor found as follows:

that service of process on the defendants was proper; that under the circumstances enunciated in argument by counsel relative to their contact with each other on behalf of their respective clients, counsel for [the] plaintiff was entitled to treat K.F. Boackle, Esquire, as counsel for [the] defendants from and after the filing of the Complaint for Slander of Title and for Removal of Cloud Upon Title; that [the] defendants failed to appear, plead, or otherwise defend against the complaint exhibited against them; and that [the] plaintiffs were entitled to the entry of a default judgment against the defendants removing the cloud upon them title in the form of a construction lien filed by [the] defendants.

Aggrieved, Tucker and H & G appeal. The central issue on appeal is whether the Williamses properly served process and, by extension, whether the chancery court acquired personal jurisdiction over H & G or Tucker.

ANALYSIS

I. SERVICE OF PROCESS

¶ 9. Tucker and H & G claim the chancery court never had personal jurisdiction over them because the Williamses failed to properly serve them with process. “The concept of personal jurisdiction comprises two distinct components: amenability to jurisdiction and service of process.” Lexington Ins. Co. v. Buckley, 925 So.2d 859, 865(¶ 25) (Miss.Ct.App.2005). “Service of process is simply the physical means by which personal jurisdiction is asserted.” Id. Without proper service of process or the entry of an appearance, a trial court does not have jurisdiction over the person. Young v. Sherrod, 919 So.2d 145, 149(¶ 15) (Miss.Ct.App.2005) (citing Mansour v. Charmax Indus., Inc., 680 So.2d 852, 854 (Miss.1996)). Id. If the chancery court lacked personal jurisdiction over H & G and Tucker, then the default judgment is invalid because “no judgment[,] order[,] or decree is valid or binding upon a party who has had no notice of the proceeding against him.” Buckley, 925 So.2d at 864(¶ 23) (quoting James v. McMullen, 738 So.2d 358, 359(¶3) (Miss. Ct.App.1999)).

1. Attempted Service by Mail to K.F. Boackle

¶ 10. The Williamses first attempted to serve H & G and Tucker by mailing process to K.F. Boackle, the attorney that filed H & G and Tucker’s two construction liens. The Mississippi Rules of Civil Procedure provide a mechanism for service of process by mail. M.R.C.P. 4(c)(3). However, service by mail is restricted to two classes of defendants. M.R.C.P. 4(c)(3)(A). To accomplish service in this manner, a plaintiff must mail “a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment.” Id. The defendant, either individually or through its agent, must then return the acknowledgment to the plaintiff. Id. If the person or entity being served by mail does not return the acknowledgment to the plaintiff within twenty days “after the date of mailing, service of such summons and complaint may be made in any other manner permitted by” Rule 4 M.R.C.P. 4(c)(3)(B).

A. Tucker

¶ 11. As mentioned, a plaintiff may serve two classes of defendants with process by mail. M.R.C.P. 4(c)(3)(A). Tucker falls under one such class, as he is an “individual other than an unmarried infant or a mentally incompetent person.” M.R.C.P. 4(d)(1). However, the Williamses’ attempt to serve Tucker by mail was insufficient. First and foremost, the Williamses were obligated to mail a summons and complaint to “the person to be served.” M.R.C.P. 4(c)(3)(A). Tucker was “the person to be served” — not Tucker’s attorney.

¶ 12. In addition, to accomplish service of process by mail, the defendant must return a properly executed acknowledgment to the plaintiff. M.R.C.P. 4(c)(3)(B). Nothing in the record demonstrates that Tucker returned an acknowledgment of service to the Williamses. The rules regarding service of process are to be strictly construed. Young, 919 So.2d at 148(¶ 12). The Williamses failed to properly serve Tucker -with process by mail. It follows that the chancery court did not acquire personal jurisdiction over Tucker by virtue of the Williamses attempt to serve Tucker by mail.

¶ 13. The Williamses argue that it was sufficient to serve Boackle because Tucker was avoiding service of process. However, nothing in the record corroborates their claims. While it is true that the Williamses attempted to serve Tucker by mail, as best we can tell, the first attempt to serve process was by mailing to Boackle and later to Tucker individually and in his capacity as H & G’s registered agent for service of process. There is no indication that the Williamses hired a process server or requested that a law enforcement officer try to personally serve Tucker before attempting to serve him by mail. Likewise, there is no indication that such attempts were unsuccessful. Accordingly, we cannot find that Tucker evaded service of process.

B. H&G

¶ 14. H & G is a domestic corporation. Domestic corporations are included among the second class of defendants that may be served with process pursuant to Rule 4(c)(3)(A). M.R.C.P. 4(d)(4). Pursuant to Rule 4(d), which governs the “person to be served,” to serve a domestic corporation, a plaintiff must serve “an officer, a managing or general agent, or ... any other agent authorized by appointment or by law to receive service of process.” M.R.C.P. 4(d)(4). The record contains no evidence that Boackle was an officer, a managing agent, a general agent, a registered agent for service of process, or that Boackle was otherwise authorized to receive service of process on H & G’s behalf. The Williamses acknowledged that Tucker was the person to be served in that they listed Tucker as H & G’s registered agent for service of process.

¶ 15. Further, as with Tucker, there is no evidence that the Williamses received an acknowledgment of service from anyone on H & G’s behalf. It follows that the chancery court did not acquire personal jurisdiction over H & G as a result of the Williamses’ mailing process to Boackle as H & G’s agent.

2. Attempted Service by Mailing to Tucker

¶ 16. According to the record, separate from their attempt to serve Tucker by mailing process to Boackle, the Williamses also attempted to serve H & G and Tucker by mailing process to Tucker. However, there is no evidence that either H & G or Tucker returned an acknowledgment to the Williamses. To accomplish service by mail in this manner, a plaintiff must mail “a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment.” M.R.C.P. 4(c)(3)(A). The defendant, either individually or through its agent, must then return the acknowledgment. If the person or entity being served by mail does not return the acknowledgment to the plaintiff within twenty days “after the date of mailing, service of such summons and complaint may be made in any other manner permitted by” Rule 4 M.R.C.P. 4(c)(3)(B). The implication is clear. If an allegedly served defendant does not return an acknowledgment of service by mail, the plaintiff must serve the defendant by some other means. Accordingly, without the acknowledgment, service is incomplete. The record contains no indication that Tucker returned an acknowledgment in his individual capacity or in his capacity as H & G’s registered agent for service of process. Accordingly, the circuit court did not acquire personal jurisdiction over Tucker or H & G via service of process by mail.

3. “Posting to the Property”

¶ 17. A deputy sheriff filed a process server’s return and claimed he served Tucker and H & G by posting process to them respective property. We interpret the deputy sheriffs notation that he “posted” a summons and complaint “to the property” as an indication that the deputy left the summons and complaint at Tucker’s personal physical address and H & G’s physical business address.

A. Tucker

¶ 18. If, “with reasonable diligence” one cannot deliver process to an individual, other than an “unmarried infant or a mentally incompetent person,” one can serve an individual “by leaving a copy of the summons and complaint at the defendant’s usual place of abode with the defendant’s spouse or some other person of the defendant’s family above the age of sixteen years who is willing to receive service.” M.R.C.P. 4(d)(1)(B). After-wards, a plaintiff must mail “a copy of the summons and complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and complaint were left.” Id. Even then, “[sjervice of a summons in this manner is deemed complete on the 10th day after such mailing.” Id. There is no indication that the deputy left the summons with anyone at Tucker’s home, much less such a person that would meet the criteria set forth in Rule 4(d)(1)(B). Additionally, there is no indication that the Williamses fulfilled the second step of Rule 4(d)(1)(B) service by mailing a copy of the summons and complaint to Tucker. Consequently, the chancery court did not acquire personal jurisdiction over Tucker individually by this method of service.

B. H&G

¶ 19. As for H&G, the only specific method for serving a “domestic corporation” is to deliver “a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.” M.R.C.P. 4(d)(4). “Posting] to the Property” is clearly not an authorized means to serve process upon a corporate entity. Accordingly, the chancery court did not acquire personal jurisdiction over H & G by virtue of the deputy sheriffs attempt to serve process by “posting” it to H & G’s property.

¶ 20. The Williamses failed to properly serve Tucker and H&G with process on three occasions: (1) when they mailed process to Boackle, (2) when they mailed process to Tucker, and (3) when a deputy sheriff acting on their behalf “posted” process to Tucker’s property and H & G’s property. As previously mentioned, the rules regarding service of process are to be strictly construed. Young, 919 So.2d at 148(¶ 12). Because the chancery court never had personal jurisdiction over Tucker or H & G, the Williamses’ default judgment is void. See, Buckley, 925 So.2d at 870(¶ 50).

¶ 21. Before we conclude, another matter bears discussion. As noted above, the Williamses vigorously argue that Tucker and H&G avoided service of process. The Williamses claim that they were entitled to serve Boackle because Boackle filed H & G’s two construction liens. The Williamses reason that Boackle was representing Tucker and H&G. The Williamses further reason that a plaintiff is entitled to serve a defendant’s attorney when that defendant evades service of process. To demonstrate the fact that Boackle was representing Tucker and H&G, the Williamses draw our attention to what they term a “pile” of correspondence. Additionally, the Williamses particularly point out that, in a portion of that correspondence, Boackle relayed Tucker’s and H & G’s intent to file a counterclaim in the event that the Williamses filed a complaint against them.

¶ 22. “If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application.” M.R.C.P. 55(b). A Rule 55(b) appearance is not the equivalent of an appearance that could confer personal jurisdiction to a trial court. See, e.g., Holmes v. Holmes, 628 So.2d 1361, 1363-64 (Miss.1993) (citing H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C.Cir.1970) (holding that a defendant was due notice where a trial court was informed that during settlement negotiations, correspondence between attorneys indicated that the defendants intended to defend the suit)).

¶ 23. In the matter presently before us, correspondence between attorneys reveals that Boackle relayed Tucker’s and H & G’s intent to file a counterclaim if the Williamses filed their complaint. A statement that one will file a counterclaim is obviously a statement indicative of intent to defend a claim. Consequently, the Williamses were obligated to provide Tucker and H & G’s attorney three days’ notice of the hearing on their application for default judgment. Nothing in the record demonstrates that the Williamses fulfilled their obligation.

¶24. In Holmes, the Mississippi Supreme Court was imminently clear when it stated, “[w]e refuse to condone such behavior.” Holmes, 628 So.2d at 1365. The Mississippi Supreme Court reversed the trial court’s judgment and remanded the matter to the trial court. Id. Because we reverse the chancellor for lack of personal jurisdiction, it is unnecessary to reverse due to the Williamses’ failure to provide adequate notice of the default hearing. In any event, we reverse and render the chancellor’s judgment refusing to set aside the default judgment and remand this matter for further proceedings consistent with this opinion.

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

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

      . Tucker is the president of H & G.

      . Tucker is a Mississippi resident, and H&G is a domestic corporation headquartered in Mississippi.

      . The deputy signed the back of the document and included the following handwritten notation: "[p]osted to the [pjroperty 8 January 2006[.]” There is a signature on a stamped signature line. The rank and first name of the deputy are clearly "Lt. Robert," but the deputy’s last name is illegible.

      .The January 2006 date appears to be a scrivener's error, as the Williamses filed their complaint in December 2006.

      . Again, die 2006 date appears to be another scrivener’s error by the same deputy.

      . Tucker and H & G do not specify how they were served, and there is no documentation in the record to clarify their claim.


source: Caselaw Access Project

author: GRIFFIS, J„

license: Public Domain

text:
    Carl Andrew FISHER, Appellant, v. LAUDERDALE COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2008-CA-00359-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      Thomas W. Powell, attorney for appellant.
    J. Richard Barry, Robert T. Bailey, Meridian, attorneys for appellee.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J„

for the Court.

¶ 1. Carl Fisher commenced a lawsuit against the Lauderdale County Board of Supervisors for damage to his timberland. The Board of Supervisors moved for summary judgment and claimed immunity under the Mississippi Tort Claims Act (“MTCA”). The circuit court granted the motion. Fisher appeals and argues that summary judgment was not proper because the Board of Supervisors’ actions were not entitled to governmental immunity. We find no error and affirm.

FACTS

¶ 2. Fisher owns approximately eighty-two acres of timberland in Lauderdale County near Beaver Pond Road and Ponta Creek. In April 2003, the area received ten inches of rain on two separate occasions. These rains caused the area, including Fisher’s property, to flood and the culverts and roads to wash out.

¶ 3. According to Fisher, beavers built dams along the culverts and the public road. He claims he notified the county of the beaver problem on several occasions and that the county failed to clear the beaver dams and debris from the culverts. During the two heavy rains, the debris restricted the flow of water through the culverts and caused his property to flood. Fisher claimed that his property sustained long-term irreversible damage due to this flooding.

II4. Fisher’s lawsuit argued that the Board of Supervisors improperly sized and installed the drainage culverts in the area. Based on his account of the facts, it appears that Fisher means the culverts did not have the capacity to accommodate the necessary amount of water because they were too small.

¶ 5. The Board of Supervisors moved for summary judgment and claimed immunity. Mississippi Code Annotated section 11-46-9(l)(d) (Supp.2008) provides immunity for governmental entities performing discretionary functions. The Board of Supervisors argued that the installation and maintenance of the culverts were discretionary functions because they were not imposed on them by law.

¶ 6. Mississippi Code Annotated section 65-21-1 (Rev.2005) states that “[a]ll culverts hereafter built, rebuilt, or placed in any public road in this state shall be not less than the full width of the crown of the roadway, and shall have guide or warning posts on either side.” The circuit court determined that this statute established a minimum requirement for a culvert and any decision outside of the minimum requirement was a discretionary function. The circuit court also found that the maintenance and repair of roads was a discretionary function of government. Hence, the circuit court concluded that the Board of Supervisors was entitled to immunity under section 11 — 46—9(l)(d) and granted its motion for summary judgment.

STANDARD OF REVIEW

¶ 7. This Court employs a de novo standard of review of a trial court’s grant of summary judgment. Mozingo v. Scharf, 828 So.2d 1246, 1249(¶5) (Miss.2002). When there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper. Id. “The burden of demonstrating that there is no genuine issue of material fact falls on the party requesting the summary judgment.” Id. If any genuine issues of material fact exist, the trial court’s grant of summary judgment will be reversed; otherwise, the decision will be affirmed. Id.

ANALYSIS

¶8. Fisher argues that the damage to his property was the result of the Board of Supervisors’ gross negligence in the installation and maintenance of the culverts. In response, the Board of Supervisors asserts that Mississippi Code Annotated section 11 — 46—9(l)(d) grants it immunity “[biased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused[.]”

¶9. The question before this Court is whether the installation and maintenance of the culverts were discretionary functions. The supreme court has held that “[a] duty is discretionary if it requires the official to use [his or her] judgment and discretion in the performance thereof.” T.M. v. Noblitt, 650 So.2d 1340, 1343 (Miss.1995) (citation omitted). In contrast, the supreme court stated that a duty is ministerial if it “has been positively imposed by law and its performance [is] required at a time and in a manner or upon conditions which are specifically designated.” Id. at 1344 (citation omitted).

A. The Installation of Culverts

¶ 10. Fisher points to statutory authority regarding culverts as proof that the installation and size of the culverts were not discretionary and, therefore, not immune as discretionary functions under section 11 — 46—9(l)(d).

¶ 11. Section 65-21-1 provides: “All culverts hereafter built, rebuilt, or placed in any public road in this state shall be not less than the full width of the crown of the roadway, and shall have guide or warning posts on either side.” This statute does not impose any obligation on the Board of Supervisors to install culverts. It merely sets the minimum length for a culvert — the width of the road — if the Board of Supervisors should decide to install a culvert. This Court has held that “[a]ny decisions made outside of those minimum requirements are discretionary functions of government.” Barr v. Hancock County, 950 So.2d 254, 258(¶ 13) (Miss.Ct.App.2007).

¶ 12. Fisher does not argue that the Board of Supervisors did not meet the minimum requirements of section 65-21-1. Rather, Fisher argues that the culverts were improperly installed and sized.

¶ 13. The statute does not address the size of a culvert — only the length. It leaves the size of the culvert to the discretion of the Board of Supervisors. We find that while section 65-21-1 sets the minimum length for a culvert, the statute does not make the sizing and installation of a culvert ministerial; therefore, these functions are entitled to immunity under section ll-46-9(l)(d) as a discretionary function.

B. The Installation of Culverts under Section 11-16-9 (l)(b)

¶ 14. Next, Fisher claims the Board of Supervisors did not use ordinary care when installing the culverts and that section 11 — 46-9 requires a minimum standard of ordinary care be exercised in order to raise the statutory shield. Mississippi Code Annotated section ll-46-9(l)(b) (Supp.2008) provides that:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [a]rising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a staUite, ordinance or regulation, whether or not the statute, ordinance or regulation be valid.

(Emphasis added).

¶ 15. As we have already stated, the only applicable statute, section 65-21-1, establishes a minimum length for culverts; it does not, however, impose any duty on the Board of Supervisors to install culverts under certain conditions or to size the culverts in a particular way. There is no allegation that the Board of Supervisors did not meet the minimum requirement of section 65-21-1. This argument is without merit.

C. The Maintenance of Culverts

¶ 16. Lastly, we address Fisher’s claim that the Board of Supervisors and supervisor Jimmy Smith are liable because they negligently maintained the culvert. The Board of Supervisors argues that road maintenance is a discretionary function and entitled to immunity under section 11-46-9(l)(d). “Generally [the supreme court has] found individual supervisors, as well as County Boards of Supervisors, to be immune from liability for injuries sustained as a result of the negligent maintenance of public roads.” Coplin v. Francis, 631 So.2d 752, 753 (Miss.1994) (citations omitted). “However, this qualified immunity only affords protection against suits arising out of the performance of discretionary duties.” Mohundro v. Alcorn County, 675 So.2d 848, 853 (Miss.1996) (citing Coplin, 631 So.2d at 753; Davis v. Little, 362 So.2d 642, 644 (Miss.1978)).

¶ 17. In Mohundro, the supreme court stated that:

A supervisor or other public official has no immunity to a civil action for damages if his breach of a legal duty cause[s] injury and (1) that duty is ministerial in nature, or (2) that duty involves the use of discretion and the governmental actor greatly or substantially exceeds his authority and in the course thereof causes harm, or (3) the governmental actor commits an intentional tort.

Id. at 853 (quoting Grantham v. Miss. Dep’t of Corrs., 522 So.2d 219, 225 (Miss. 1988) (internal quotations omitted)).

¶ 18. The supreme court has held that “road maintenance and repair are discretionary rather than ministerial functions.” Id. Because this is a discretionary function, Smith’s immunity is determined by whether his actions “greatly or substantially exceeded] his authority.” Id.

¶ 19. In Mohundro, there was a genuine issue of material fact regarding whether the supervisor, who was named as a party in the litigation, greatly or substantially exceeded his authority. Id. at 854. The supervisor decided to replace a bridge with a culvert, but he did not consult “the rest of the board or a professional engineer to see if a culvert would be sufficient.” Id. The supreme court found that this created a genuine issue of material fact regarding whether the supervisor greatly or substantially exceeded his authority when he unilaterally decided to replace a bridge with a culvert. Id.

¶20. Here, Fisher claims he talked to the road foreman at the county barn and with his county supervisor — Smith—several times about the culverts. Smith’s alleged failure to have the culverts cleaned is not akin to the actions of the supervisor in Mohundro, who replaced a bridge with a culvert without consulting the other supervisors or a professional engineer.

¶ 21. Even if Smith knew about the problem and did not act, Fisher did not name Smith individually as a party and fails to show how Smith exceeded his authority. The failure to exercise or perform a discretionary duty is protected under section ll-46-9(l)(d), “whether or not the discretion be abused.” After viewing all the facts, we find there is no genuine issue of material fact concerning maintenance of the culvert.

1122. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


author: GRIFFIS, J.,

text:
    REBUILD AMERICA, INC., Appellant, v. Robert K. MILNER, Patricia K. Milner and Wachovia Bank, N.A., Successor in Interest to First Union National Bank, as Indenture Trustee, Appellees.
    No. 2008-CA-00121-COA.
    Court of Appeals of Mississippi.
    March 31, 2009.

      Kimberly Pine Turner, E. Barry Bridg-forth, Yazoo City, Attorneys for Appellant.
    W. Stewart Robison, Mccomb, Attorney for Appellees.
    Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Robert K. Milner; his wife, Patricia K. Milner; and Wachovia Bank, N.A., as successor in interest to First Union National Bank, filed suit against Rebuild America, Inc., to set aside a tax sale and subsequent deed to property owned by the Milners in Pearl River County, Mississippi. The chancellor set aside the tax sale because the statutory requirements for notice to the owners and lien holders were not met. Further, the chancellor set aside a subsequent deed from the Milners to Rebuild America because there was not proper or adequate consideration to support the deed. Rebuild America now appeals and argues that the chancellor improperly: (1) overruled Rebuild America’s motion to dismiss, (2) set aside the tax sale, and (3) set aside the quitclaim deed executed by the Milners to Rebuild America. We find no error and affirm.

FACTS

¶ 2. The Milners were record owners of certain real property located in Pearl River County, Mississippi. On December 19, 2000, the Milners executed a Deed of Trust to Jim Walter Homes, Inc., securing the purchase price of the home built on their property. The Deed of Trust was recorded and subsequently assigned numerous times. The last assignment was to First Union National Bank.

¶ 3. The Milners failed to pay the 2002 ad valorem taxes on their property; thus, the property was sold to Wachovia Bank, for Magnolia Investors, LLC, in a tax sale on August 25, 2003. The chancery clerk sent notice to Robert Milner and to First Union National Bank via certified mail with return receipt. When no redemption was made on or before August 25, 2005, the property was finally sold by virtue of the chancery clerk’s conveyance to Magnolia Investors dated September 26, 2005.

¶ 4. Wachovia Bank, for Magnolia Investors, conveyed its interest in the property by a quitclaim deed to Rebuild America. Rebuild America then began communications with Patricia Milner. Tiffany Cone, a representative of Rebuild America, testified that she spoke with Patricia Milner who was interested in purchasing the property from Rebuild America. Cone testified that she asked if the Milners would be willing to sign a quitclaim deed to create a tidier file in accordance with Rebuild America’s standard procedure. However, Patricia Milner testified as follows:

[Cone] called me and told me that REO America had bought our house at a land sale and that they owned the property. She also told me that if I was [sic] to sign the quit[claim] deed to her, for her, that they would make sure that they could find someone to refinance the house and that we could keep the house, that if I did not sign the papers, that they would give us 30 days and we would have to move out, that they would evict us.

The Milners signed a quitclaim deed conveying their interest in the property to Rebuild America on November 3, 2006, the day after the complaint in this case was filed on November 2, 2006.

¶ 5. The chancellor considered the testimony and evidence presented at trial, and he held that: (1) the tax sale should be set aside for the chancery clerk’s failure to comply with the statutory notice requirements, and (2) the quitclaim deed from the Milners to Rebuild America should be set aside for the lack of proper and adequate consideration.

STANDARD OF REVIEW

¶ 6. This Court maintains a limited review of a chancellor’s findings of fact. We will not reverse the factual findings of the chancellor when supported by substantial evidence unless the Court can say that the findings are manifestly wrong, clearly erroneous, or amount to an abuse of discretion. Morgan v. West, 812 So.2d 987, 990(¶ 7) (Miss.2002) (citation omitted). “In matters that are questions of law, this Court employs a de novo standard of review and will only reverse for an erroneous interpretation or application of the law.” Id. at (¶ 8) (citations omitted).

¶ 7. Further, when an appeal concerns property sold in a tax sale, this Court has held: “Statutes dealing with land forfeitures for delinquent taxes should be strictly construed in favor of the landowners. Brown v. Riley, 580 So.2d 1234, 1237 (Miss.1991). Any deviation from the statutorily mandated procedure renders the sale void.” Roach v. Goebel, 856 So.2d 711, 716(¶ 29) (Miss.Ct.App.2003) (citing Hart v. Catoe, 390 So.2d 1001, 1003 (Miss. 1980)).

ANALYSIS

1. Whether the chancellor improperly overruled Rebuild America’s motion to dismiss.

¶ 8. In response to the complaint filed in this case, Rebuild America filed a motion to dismiss along with its answer and counterclaim. Rebuild America argued that because the Milners transferred their interest in the property via the quitclaim deed to Rebuild America, the Milners relinquished any right to challenge the tax sale; thus, they lacked standing to pursue their claims.

¶ 9. The motion to dismiss was renewed before the trial began. The chancellor heard argument from both parties and overruled the motion, and he ruled: “I think we’re now prejudiced as to how this deed may ultimately fit into the chain of title of the property.” On appeal, Rebuild America again argues that the Milners lacked standing to challenge the validity of the tax sale.

¶ 10. We review the trial court’s grant or denial of a motion to dismiss under a de novo standard of review. Harris v. Miss. Valley State Univ., 873 So.2d 970, 988(¶ 54) (Miss.2004). “When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond a reasonable doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)).

¶ 11. Rebuild America cites Osborn v. Harrison, 447 So.2d 122, 123 (Miss.1984), for the proposition that “it is necessary, in order to have standing to sue to remove a tax deed as a cloud on title, that the plaintiff prove title in himself, or such interest as will warrant the action.... ” Rebuild America claims that the quitclaim deed relinquished any interest the Milners had in the property; thus, the Milners’ standing to contest the tax sale was also relinquished.

¶ 12. However, our supreme court recently held that the issue of standing is determined at the commencement of the lawsuit. Delta Health Group, Inc. v. Estate of Pope, 995 So.2d 123, 126(¶ 13) (Miss.2008). Even if, as Rebuild America argues, the quitclaim deed relinquished the Milners’ interest in the property, the deed was not signed by the Milners until after the filing of the complaint. The lawsuit had already been commenced; therefore, we need not address the effect, if any, that the quitclaim deed had on the Milners’ standing in this matter. Accordingly, this issue has no merit.

2. Whether the chancellor erred, in setting aside the tax sale.

¶ 13. The chancellor found that the required statutory notice of the tax sale was not given because of (1) the chancery clerk’s failure to notify Patricia Milner individually, (2) the chancery clerk’s failure to send the lien holder’s notice to the address shown on the recorded instrument, and (3) the lack of a sheriffs return on the notice. Rebuild America argues that the chancellor erred as a matter of law by voiding the tax sale.

¶ 14. Notice to property owners is governed by Mississippi Code Annotated section 27-43-3 (Supp.2008) which states:

The clerk shall issue the notice to the sheriff of the county of the reputed owner’s residence, if he be a resident of the State of Mississippi, and the sheriff shall be required to serve personal notice as summons issued from the courts are served, and make his return to the chancery clerk issuing same. The clerk shall also mail a copy of same to the reputed owner at Ms usual street address, if same can be ascertained after diligent search and inquiry, or to his post office address if only that can be ascertained, and he shall note such action on the tax sales record. The clerk shall also be required to publish the name and address of the reputed owner of the property and the legal description of such property in a public newspaper of the county in which the land is located, or if no newspaper is published as such, then in a newspaper having a general circulation in such county. Such publication shall be made at least forty-five (45) days prior to the expiration of the redemption period.
The failure of the landowner to actually receive the notice herein required shall not render the title void, provided the clerk and sheriff have complied with the duties herein prescribed for them.
Should the clerk inadvertently fail to send notice as prescribed in this section, then such sale shall be void and the clerk shall not be liable to the purchaser or owner upon refund of all purchase money paid.

Notice of the tax sale was sent to “MILNER, ROBERT K ETUX” via certified mail with return receipt. Robert Milner testified that he signed for the letter, but he never read the letter.

¶ 15. First, it is clear that the record does not contain the sheriffs return on the notice as required by section 27-43-8. Second, as the chancellor stated in his order, the supreme court has held that section 27-43-3 “contemplates that each owner shall receive the notice required by the statute.” Brown, 580 So.2d at 1237. While the “et ux” following Robert Mil-ner’s name translates to “and wife,” the record shows that Robert Milner, by signing for the certified letter, was the only owner to receive notice. Patricia Milner did not receive separate notice of the tax sale. Thus, just as in Brown, “[t]he notice was also fatally defective in attempting to serve both [Milners] with a single notice.” Id.

¶ 16. Third, the proper notice was not given to First Union National Bank, the lien holder of the property. Mississippi Code Annotated section 27-43-7 (Rev. 2006) requires that:

The notice shall be mailed to said lien-ors, if any, to the post-office address of the lienors, if such address is set forth in the instrument creating the lien, otherwise to the post-office address of said lienors, if actually known to the clerk, and if unknown to the clerk then addressed to the county site of the said county.

¶ 17. The original Deed of Trust executed by the Milners to Jim Walter Homes was subsequently assigned seven different times. The third, fifth, and seventh assignments were all assignments to First Union National Bank. The chancery clerk attempted to serve notice of the tax sale to First Union National Bank via certified mail. However, the chancery clerk mailed the notice to the address for First Union National Bank found in the third assignment. That address was in Charlotte, North Carolina.

¶ 18. Section 27-43-7 clearly states that the notice should be mailed to the address set forth in the instrument creating the lien. At the time notice was sent, the Deed of Trust had been assigned the seventh time to First Union National Bank with an address in Tampa, Florida. Under section 27-43-7, the notice should have been mailed to that address of the current lien holder.

¶ 19. As the supreme court held in Brown:

the most important safeguard involving any person who stands to suffer from some official action is prior notice. This gives the recipient an opportunity to prepare himself and be heard. Notice, therefore, by far is the paramount factor and purpose of all process. This, however, is not the entire story. Certain statutory formalities attend every process ....

Brown, 580 So.2d at 1237 (internal citations omitted). We must strictly construe the notice statutes in favor of the landowners. Id. Accordingly, we find that the chancellor did not err as a matter of law by voiding the tax sale as Patricia Milner did not receive separate notice and the notice to the lien holder was sent to the incorrect address. There is substantial evidence to support the chancellor’s determination; therefore, this issue has no merit.

S. Whether the chaneelbr erred in setting aside the quitclaim deed executed by the Milners to Rebuild America.

¶ 20. Lastly, Rebuild America argues that the chancellor improperly set aside the quitclaim deed on the basis of inadequate consideration. The Milners respond that there is substantial evidence to support the chancellor’s finding.

¶ 21. The deed itself recites as consideration: “ten dollars ($10.00) cash in hand paid, and other good and valuable consideration .... ” However, Patricia Milner testified at trial that she was never paid any amount in exchange for the deed. Cone, Rebuild America’s representative, testified that the only purpose of the deed was to create a cleaner file for the company. Based on the evidence presented, the chancellor found that the only consideration given was Cone’s offer to help obtain financing so the Milners could purchase the property. Because that financing was never obtained, the chancellor found inadequate consideration to support the deed.

¶ 22. Rebuild America’s sole argument against the chancellor’s finding is that, in a voluntary conveyance, the grantor cannot set aside a deed because of a lack of consideration absent an allegation of fraud. See Covington v. Butler, 242 So.2d 444, 447 (Miss.1970) (quoting Campbell v. State Highway Comm’n, 212 Miss. 437, 443, 54 So.2d 654, 656 (1951)). However, in Covington, the supreme court explicitly stated that it was “not contended that the conveyance [at issue] was not a voluntary action” on the part of the grantor “and there is no allegation that [the grantor] was induced to sign the deed by fraud.” Id.

¶ 23. Here, the record shows that the only reason the Milners signed the deed was to avoid eviction from their home. This ease is distinguishable from Coving-ton because there is indeed a contention that the conveyance was involuntary. Because the facts of this case are distinguishable from Covington, the chancellor was not prohibited from setting aside the deed due to the lack of consideration. Accordingly, this issue has no merit.

¶ 24. THE JUDGMENT OF THE PEARL RIVER COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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


text:
    Bobby DIDON, Appellant, v. STATE of Mississippi, Appellee.
    No. 2008-CA-00928-COA.
    Court of Appeals of Mississippi.
    April 7, 2009.

      William E. Goodwin, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before KING, C.J., ROBERTS and CARLTON, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Following his conviction of child molestation and sentence as a habitual offender of life imprisonment in the custody of the Mississippi Department of Corrections (MDOC), Bobby Didon filed a motion for post-conviction relief in the Circuit Court of Lawrence County, claiming ineffective assistance of counsel. Didon’s motion was denied. Aggrieved by this ruling, Didon appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Didon was indicted by a Lawrence County grand jury on December 16, 2003, for the crime of touching, handling, and fondling a nine-year-old girl. Following that, Didon was convicted by a jury of child molestation. Didon waived a presen-tence investigation and was sentenced to life imprisonment without parole pursuant to Mississippi Code Annotated section 99-19-83 (Rev.2007) because of his status as a habitual offender. Didon had previously been convicted on two counts of sexual battery, indecency with a child, and grand larceny.

¶ 3. Didon filed a notice of appeal with the Mississippi Supreme Court on April 13, 2006, but he later filed a motion for a voluntary dismissal on August 24, 2006, when it “became clear that a direct appeal was not supported by the trial record or the post-trial record.” The Mississippi Supreme Court granted the motion on September 12, 2006. Didon then filed a motion for post-conviction relief pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Mississippi Code Annotated section 99-39-1 to-29 (Rev.2007) on July 12, 2007. Following an evidentiary hearing, Didon’s motion for post-conviction relief was denied on May 5, 2008. Didon now appeals that decision.

STANDARD OF REVIEW

¶ 4. Ineffective assistance of counsel is a mixed question of law and fact that this Court reviews de novo. Sayre v. Anderson, 238 F.3d 631, 634-35 (5th Cir. 2001). Unless clearly erroneous, this Court credits “the trial court’s express or implied findings of discrete, historic facts.” Id. at 635.

¶ 5. A petitioner who alleges ineffective assistance of counsel must show that his counsel’s performance was deficient and that this deficient performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Stated somewhat differently, the defendant must prove that ‘the lawyer’s errors were of such a serious magnitude as to deprive the defendant of a fair trial because of a reasonable probability that, but for counselor’s unprofessional errors, the results would have been different.’” Cole v. State, 666 So.2d 767, 775 (Miss.1995) (quoting Martin v. State, 609 So.2d 435, 438 (Miss.1992)). Furthermore, judicial scrutiny of counsel’s performance must be “highly deferential,” and the court must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s alleged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 669, 104 S.Ct. 2052. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Id.

¶ 6. Didon’s motion claims that his trial counsel, Dwayne Deer, provided him ineffective assistance of counsel. His primary assertions to support this accusation are that Deer failed to interview witnesses, failed to view a video that was taken at the Children’s Advocacy Center during an interview with the child victim, and failed to visit the home where the events occurred. In response, the State asserts that Didon’s appeal is barred because the trial court lacked jurisdiction to hear Didon’s motion because Didon did not request leave by Mississippi Supreme Court prior to his filing the post-conviction relief motion in the circuit court. Additionally, the State claims that Didon is procedurally barred because he failed to place an adequate record before this Court. Because jurisdiction is a fundamental prerequisite in any proceeding, this Court will address that issue first.

ANALYSIS

I. PROCEDURAL BAR

¶ 7. Relying on Lyons v. State, 881 So.2d 373 (Miss.Ct.App.2004), the State asserts that Didon’s appeal should be dismissed because Didon was not granted leave by the Mississippi Supreme Court to file his motion for post-conviction relief in the circuit court. However, Lyons is distinguishable from the case at hand. In Lyons, the appellant filed an appeal following his trial, but he withdrew the appeal as part of a plea agreement wherein two counts of sale of a controlled substance were dropped. Id. at 375(¶ 3). About a year later, Lyons filed a motion for post-conviction relief, but the trial judge ruled that Lyons could not proceed in the trial court because “authority to do so had not been granted by the supreme court pursuant to Mississippi Code Annotated [s]ection 99-39-7.” Id. at 375(¶4). The supreme court affirmed stating, “Lyons’[s] motion for post-conviction relief is procedurally barred [because] [t]he dismissal of his direct appeal from the supreme court was a final judgment.” Id. at 376(¶ 9). Regarding Lyons’s direct appeal, the supreme court issued a mandate from the direct appeal stating that there had been proceedings in the supreme court and the court had issued a “final judgment.” Id. Because the facts in Lyons are somewhat different from the case at hand, this Court finds that Martin v. State, 556 So.2d 357 (Miss.1990) provides a more thorough explanation of the jurisdictional directive of Mississippi Code Annotated section 99-39-7 and is applicable to the case at hand.

¶ 8. Stemming from the revocation of his probation, the defendant in Martin filed a direct appeal to the Mississippi Supreme Court. Martin, 556 So.2d at 357. The State then filed a motion to dismiss Martin’s appeal arguing that an order revoking probation was not directly appealable. Id. The court granted the motion without prejudice so Martin could institute post-conviction relief action. Id. Following the dismissal of the direct appeal, Martin initiated post-conviction relief proceedings in the supreme court, but the court determined that the post-conviction proceedings should be dismissed because Martin had filed his petition in the wrong court. Id. The supreme court stated, “[w]hen we dismissed Martin’s direct appeal ... without prejudice to institute post-conviction proceedings ... we did not direct in which court said proceedings should be initiated. We assumed that the jurisdictional directive of section 99-39-7 would be followed, and furthermore, that it would be clear.” Id. at 358. Recognizing that the jurisdictional directive of section 99-39-7 must have needed clarification, the court explained as follows:

Section 99-39-7 of the Post-Conviction Relief Act sets forth the circumstances in which a motion for relief under the Act must be filed originally in the trial court and in what circumstances the motion must first be filed in the Supreme Court of Mississippi. The only time that the motion must first be filed in this Court is when “the prisoner’s conviction and sentence have been appealed to the [Sjupreme [Cjourt of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this chapter shall not be filed in the trial court until the motion shall have been presented to a quorum of the justices of the [Sjupreme [C]ourt of Mississippi,”....
[O]ne could argue that by dismissing Martin’s direct appeal, ... this Court thereby became the last court to exercise jurisdiction in this cause and should, therefore, be the court of first resort for Martin’s post-conviction petition.
However, implicit in the scheme of the Post-Conviction Relief Act is the requirement that in order for this Court to acquire exclusive, original jurisdiction over a petition filed thereunder, this Court must have previously made some final determination going to the merits of the underlying conviction and sentence. It is not enough to confer exclusive jurisdiction on this Court under [section ] 99-39-7 that tve dismissed an appeal without prejudice for lack of jurisdiction, and incident to attempted post-conviction proceedings, that we granted a temporary stay of execution.
The actions taken by this Comt in this cause have been merely procedural in nature, and have in no way touched on the merits of Martin’s conviction and sentence.

Id. at 358-59 (emphasis added). Didon’s situation is similar.

¶ 9. After filing his notice of appeal, Didon determined that a better course of action was to seek redress via a post-conviction relief motion. Didon then filed a motion for voluntary dismissal with the Mississippi Supreme Court. The dismissal was granted on September 12, 2006, pursuant to Mississippi Rule of Appellate Procedure 42(b). There is nothing in the record indicating that the supreme court made any decision based upon the merits of Didoris case, nor was the case dismissed by the court for any procedural defects such as failure to file within the statute of limitations. The dismissal notice merely states that “[p]ursuant to [Mississippi Rule of Appellate Procedure] 42(b), appellant’s Motion for Voluntary Dismissal of Appeal is granted. Costs are taxed to the appellant.” Also, there is nothing in the record to indicate that Didon withdrew his appeal on the basis of a plea agreement, or that it was dismissed by the supreme court for filing it in the wrong court. The supreme court’s actions in this matter were merely procedural. Therefore, just as the trial court in Martin had exclusive original jurisdiction to hear the post-conviction relief motion, so did the circuit court in this case when it held an evidentiary hearing and ruled on Didon’s post-conviction relief motion. See Martin, 556 So.2d at 359-60. Therefore, the State’s claim that the circuit court lacked jurisdiction fails.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 10. Didon asserts that Deer failed to interview witnesses in preparation for trial. In addition, he takes issue with the fact that Deer did not elicit testimony from certain family members during the trial. In an attempt to support this assertion, Didon submits deposition transcripts of three of his family members that were taken in preparation for Didon’s motion for post-conviction relief. The family members deposed were Didon’s sister, Kay Col-vin (Kay), his brother-in-law, William Col-vin (William), and his wife, Nora Didon (Nora). We will address each of them in turn.

A. Kay Colvin’s Testimony

¶ 11. Didon contends that the jury would have been swayed by Kay’s testimony relating to the victim’s interview with the Child Advocacy Center in McComb, Mississippi. Kay stated that she believed the victim was coaxed by her mother prior to the interview at the Child Advocacy Center about what she should say during that interview. In her post-trial deposition, Kay stated that although she voiced these concerns to Deer, she did not believe he followed up on her perceptions related to the events of that day. Didon asserts that Kay should have been allowed to present her opinions to the jury. However, it is impossible for this Court to scrutinize Deer’s performance relating to that interview because Didon has not furnished this Court with a transcript of the trial below to determine what testimony was given or what questions or objections were, or should have been, raised related to the child’s interview at the Child Advocacy Center.

¶ 12. Furthermore, when deciding whether or not to place Kay on the stand, Deer had the responsibility of determining what the best trial strategy would be. Supported by Kay’s own statements, Deer had to weigh any possible benefit of Kay’s testimony against the risk. Kay’s post-trial deposition reveals that she had accompanied the victim’s mother to press charges against Didon, and even more disparaging, she later offered the victim’s mother money for the child as an incentive to drop the charges against Didon. Kay avers that Didon had told her to do this based upon Deer’s advice, but there is no way to discern the validity of this statement from the record.

¶ 13. Additionally, Kay states that Deer failed to communicate with her, Didon, and other potential witnesses. However, Kay’s deposition reveals information somewhat contradictory to this allegation. Kay testified that she accompanied Didon to Deer’s office on “numerous occasions,” and she sometimes attended the meetings “back [in] the office.” Although Didon may feel as if these encounters were too few, it is not for this Court to determine how many interviews would or would not have been sufficient based upon hindsight and one-sided accounts of what preparation took place. While represented by Deer, two years elapsed between the time of Didon’s indictment and his trial. If Didon sensed that neither he nor other witnesses were being interviewed or prepared adequately, he had the opportunity to seek other counsel.

¶ 14. Because deciding whether to call witnesses is a strategic trial decision, the Fifth Circuit Court of Appeals has held that “complaints of uncalled witness[es] are ‘disfavored’ as a source of Strickland ... review.” United States v. Harris, 408 F.3d 186,190 (5th Cir.2005) (citations omitted). We agree. Furthermore, “counsel’s [choice of whether or not] to file certain motions, call certain witnesses, ask certain questions, and make certain objections fall[s] within the ambit of trial strategy.” Cole, 666 So.2d at 777. In light of case law and the facts stated above, this Court finds that Deer’s decision not to call Kay was not objectively unreasonable, and certainly, it was within the ambit of trial strategy.

B. William Colvin’s Assertions

¶ 15. Just as with Kay, any possible testimony by William, Didon’s brother-in-law, may have been suspect. William testified in his post-trial deposition that everything he knew about the Didon home and the events surrounding the incident came from Didon, not from any firsthand knowledge or experience. Deer may not have called William because William’s testimony likely would not have been admissible as it was hearsay. William also declares that after Didon’s trial, Deer confessed that his advocacy was deficient and that Didon could file a motion asserting ineffective assistance of counsel. William’s allegation alone is insufficient to support a finding that Deer actually confessed that he had inadequately represented Didon. There are nearly thirty pages of testimony from William about what he heard from Didon or Kay concerning the events, but there is nothing in the record that indicates that Deer has been questioned or given an opportunity to defend or explain his performance. Nor is there a transcript from the trial or the evidentiary hearing included in the record that would allow this Court to analyze the prior proceedings and Deer’s performance. Furthermore, even Didon recognized that the transcript from the trial would not support a successful appeal.

¶ 16. Just as there would have been legitimate doubt with any testimony Kay that could have given, it is unlikely that the jury would have been persuaded to find differently if William had testified. As stated, William’s post-trial deposition reveals that he had no personal or firsthand knowledge of the events surrounding the incident. The circuit judge correctly stated in his order denying Didon’s motion for post-conviction relief, “[such] statements ... [would have been] offered by persons related either by blood or marriage ... [and][h]ad the jury been presented this information, they would have been aware of possible bias and inconsistencies found within these statements.”

¶ 17. Based upon the post-trial depositions, Didon’s assertion of ineffective assistance of counsel fails to pass the Strickland two-prong test. Under Strickland, Didon has the burden of proof to show that his attorney’s performance was deficient, and he must show that such deficiency was prejudicial to the defense. See Moody v. State, 644 So.2d 451, 456 (Miss.1994). Also, as the supreme court has stated, “[t]here is ... a presumption that counsel’s decisions are strategic in nature, rather than negligent.” Swington v. State, 742 So.2d 1106, 1114(¶ 23) (Miss.1999). It is not evident that, but for Deer’s decision to abstain from using Kay or her husband as witnesses, the outcome of the trial would have been different or that Deer’s decisions stemmed from anything other than trial strategy.

C. Nora Didon’s Testimony

¶ 18. This leaves the issue of what Nora “could have” testified about at trial. Uncontradicted by Didon, the State’s brief to this Court states that Nora testified during the trial as follows: “that the victim and the defendant were in the bedroom together, that she was cooking in the kitchen most of the time while the victim was there, and that the victim visited her home on numerous occasions and she could not remember each visit.” Di-don now claims that his wife was shy and would not have spoken forthrightly on her own during the trial. To reiterate, Didon has not provided this Court with a transcript of the trial in which to analyze whether Nora was questioned appropriately at trial or not, or whether she appeared hesitant in her answers. Furthermore, Didon has not shown this Court that Nora was denied the opportunity to testify accurately about what she knew about that day, or that she was inadequately questioned during the trial. Moreover, in his order denying Didon’s motion for post-conviction relief, the circuit judge stated, “[he] knew [the trial judge] to be a learned judge and [was] confident that had this attorney displayed such inability to rise to the level of undue prejudice against the Defendant, the presiding Judge would have acted accordingly.” It stands to reason that such a learned judge would have noticed if Nora was not responding properly to questions and whether she acted appropriately.

¶ 19. Nora now wants to change her testimony. In her post-trial deposition, she stated that because of the layout of the home, she would have been able to see into the bedroom every time she went anywhere in the house. She testified in the deposition that she was “up and down all the time,” and “[e]ven if [she] went into the kitchen, [she] was only there a minute .... ” As stated, the record does not support the assertion that Nora was denied the opportunity to give a precise account at trial. If Nora was given the opportunity to testify again she would vouch for her husband by stating that she was present and that she knew that no molestation had occurred. Although this Court cannot divine which of Nora’s testimonies are accurate, Didon is not entitled to another bite at the apple because his witness failed to give complete and truthful testimony at trial.

¶ 20. Didon also takes issue with the fact that Deer did not visit the home where the incident occurred, nor did he ask Nora to create a drawing of the home, which could have been shown to the jury. Given the nature and content of Nora’s testimony, it is not persuasive that any such drawing would have affected the outcome of the trial.

¶ 21. To prevail in his ineffectiveness argument, “[a] defendant ... must ... state with particularity what the investigation would have revealed and specify how it would have altered the outcome of trial ... [or] how such additional investigation would have significantly aided his cause at trial.” Cole, 666 So.2d at 776 (internal citations and quotations omitted). Although Didon has “particularly” stated that he believes that his wife should have been questioned differently and his relatives allowed to testify at trial, this Court is not persuaded, based upon the evidence presented in the post-trial depositions, that Didon was prejudiced by Deer’s decisions.

¶ 22. “Hindsight ... is always 20/20. It is easy to criticize counsel with the aid of ‘backfocal’ lenses.” Id. But, mere hindsight judgment does not provide a window of opportunity to retry a case. Id. When ruling on Didon’s post-conviction relief motion, the circuit judge stated that “[w]hile Deer’s performance might not have been as good as it could have been, it [is] very suspect that it actually reaehe[d] the level of incompetency. Even though deficient, ... Deer’s actions did not reach a level of prejudice to be deemed outcome determinative.” As this Court has stated, a trial court’s denial of a motion for post-conviction relief should not be reversed “absent a finding that the trial court’s [decision] was clearly erroneous.” Holland v. State, 956 So.2d 322, 325(¶ 6) (Miss. Ct.App.2007) (citation omitted). Based upon the record and applicable case law, this Court finds that Didon has failed to meet his burden under Strickland to show that Deer’s performance was deficient and that deficiency prejudiced his defense. Accordingly, this Court affirms the judgment of the circuit court.

¶ 23. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. MAXWELL, J., NOT PARTICIPATING.

      . Mississippi Rule of Appellate Procedure 42(b) states, "[ajfter the appeal has been docketed with the clerk of the Supreme Court, an appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the Supreme Court....”

      . The case number of Didon’s direct appeal to the supreme court is 2006-KA-00629-SCT.

      . As staled, the record does not include a transcript of the trial or the evidentiary hearing from which to test the information set forth in the parties’ briefs. As this Court has clearly stated, ''[a]s with any appeal, it is solely the appellant's duty to ensure that the record is sufficiently populated to support the error claimed. [And][i]f the record is found lacking in this regard, the lower court’s order must stand.” Ross v. State, 936 So.2d 983, 985(¶ 4) (Miss.Ct.App.2006) (internal citations omitted). Accordingly, if there was an inaccurate representation of Nora's trial testimony, it was incumbent upon Didon to refute the appellee's account of Nora’s trial testimony in a reply brief or, better yet, by providing a transcript of the actual trial. However, we remind the appellee that it too has a duty to provide necessary portions of the record if it deems them necessaiy. Mississippi Rule of Appellate Procedure 10(b) provides that "the appellee shall, within 14 days after the service of the designation and the statement of the appellant, file with the clerk and serve on the appellant and the court reporter a designation of additional parts to be included.”


author: PARKER, Justice. LYONS, Justice COBB, Chief Justice

text:
    Dorothy FALLS v. JVC AMERICA, INC.
    1051677.
    Supreme Court of Alabama.
    June 13, 2008.
    Rehearing Denied Oct. 17, 2008.

      Nat Bryan and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellant.
    Brandi B. Frederick and Barry V. Frederick of The Frederick Firm, Birmingham, for appellee.
   PARKER, Justice.

I. Background

Dorothy Falls began working for JVC America, Inc. (“JVC”), on November 13, 1986, and continued working for JVC until June 23, 2004, operating winding machines in the tape facility and various machines in the disc facility at JVC’s plant. Around June 2003 she was transferred from the tape department to the disc department, and shortly thereafter the tape facility closed. Her primary responsibility in the disc facility involved printing labels.

On August 19, 2003, Falls began to experience headaches, nausea, and weakness. Although the first onset of these symptoms occurred, not at work, but while she was driving her car, she subsequently started experiencing these symptoms upon her arrival at work or shortly thereafter. While she was experiencing these symptoms on August 21, 2003, paramedics took her to the hospital, and she was treated by Dr. Craig Buettner. On August 27, 2003, she again experienced these symptoms and visited Dr. Buettner. Dr. Buettner told her not to return to work and set an appointment for her for September 12, 2003. On that date she told Dr. Buettner that her symptoms had disappeared. At Dr. Buettner’s request, she saw a neurologist, Dr. James Geyer, on September 24, 2003. Dr. Geyer found no abnormalities and authorized her to return to work on September 29, 2003. However, her symptoms recurred within five hours of beginning her shift.

When she visited Dr. Buettner again on October 2, 2003, he began to suspect that something at the plant, like a dye or a fume, might be causing an allergic reaction. Shortly thereafter, she saw Dr. Peter Casten, medical director of the DCH Regional Medical Center in Tuscaloosa, which specializes in occupational-health issues. Dr. Casten evaluated her but was unable to determine at that time whether her symptoms were work related. She returned to work on November 11, 2003, and had an immediate onset of symptoms. On that date Dr. Lisa Mani, who worked with Dr. Casten’s practice group, saw Falls; Dr. Mani noted that the symptoms occurred only while Falls was at the JVC workplace.

Pursuant to Dr. Buettner’s authorization, Falls returned to work again early in June 2004, and within three hours she began to experience symptoms so severe she felt like she would pass out, and she had to leave.

On or about June 21, 2004, Falls returned to work and later that day advised Gail Lawson, her “lead person” at the JVC plant, that she was ill. Lawson told her to see Mike Hall, her superintendent. Hall took her to the Human Resources Department, where she met with Sandy Korne-gay and Tom Kizziah. They gave Falls a resignation form, but she refused to sign it and asked for permission to leave to see her doctor, which was granted. Over the next several days she saw Dr. Buettner, her personal physician, and Dr. Casten, JVC’s company-approved doctor.

On the evening of June 22, 2004, Falls received a telephone message asking her to contact Felicia Gross with JVC. Gross was responsible for overseeing JVC’s workers’ compensation claims and making medical appointments for work-related injuries. Falls spoke with Gross, and Gross made an appointment for her with Dr. Casten for June 23, 2004, at 1:00 p.m.

On June 23, 2004, Gross spoke with Victor Hamner, the plant manager, concerning Falls. She testified that they discussed whether Falls’s case could result in a worker’s compensation claim. Hamner instructed Gross to arrange for Falls to see him before she saw Dr. Casten.

Falls met with Hamner at 1:00 p.m. on June 23, 2004. She told Hamner that she could not work in the plant without becoming physically ill. Hamner told her she would have to resign or she would be terminated. She answered that she could not return to work in the plant, but she refused to resign. Hamner therefore terminated Falls’s employment. Her termination notice read:

“Dorothy Falls is being terminated today for the following 2 reasons: (1) Lack of dependability; and (2) She has expressed to us that she can no longer work in this facility.
“Dorothy has not returned to work since her leave of absence ended 6/10/04. Sandy Kornegay, Tom Kizziah, and Mike Hall met with Dorothy on June 21/04 and she told them at that time that she gets sick as soon as she walks through the door of JVC, and she expressed that she cannot work in this building.”

Falls filed a complaint against JVC in the Tuscaloosa Circuit Court, alleging that JVC had fired her in retaliation for her filing or intending to file a worker’s compensation claim (CV-04-1558); she also filed a worker’s compensation claim against JVC in the Tuscaloosa Circuit Court.

The trial court entered a summary judgment in favor of JVC in Falls’s retaliatory-discharge case, finding:

“It is undisputed from the evidence that the decision to terminate [Falls] from her employment at JVC was made on 6/22/04.... [JVC employees and officials] testified that on 6/22/06,[] they had no knowledge that [Falls] was claiming that her medical condition was related to her occupation at JVC. The only testimony regarding knowledge of the claim for worker’s compensation benefits came from a conversation [Falls] had with Felicia Gross, who played no role in [JVC’s] decision to terminate [Falls’s] employment. This conversation took place on 6/23/04, and after the decision to terminate [Falls] had been made by others. It is also undisputed that on 6/22/04, Sandy Kornegay called [Falls] after the decision makers’ meeting, and gave her a choice of resigning or being terminated. Since the decision to terminate [Falls] was made on 6/22/04, [Falls’s] workman’s compensation claim could not be the sole motivating factor in [Falls’s] termination.
“There is a failure of proof of specific knowledge of [Falls’s] claims for workman’s compensation benefits on the part of the decision makers, at the time she was terminated, and that the knowledge of her workman’s compensation claim was the sole motivating force behind [Falls’s] termination. Therefore, there is a critical link missing in the chain of [Falls’s] burden of proof. Since [Falls] is unable to prove all the elements of a prima facie case, [JVC] is entitled to judgment as a matter of law.
“Summary judgment is therefore granted in favor of the defendant JVC on [Falls’s] retaliatory discharge claim.”

Falls has appealed that summary judgment to this Court.

II. Standard of Review

This Court set forth the appropriate standard of review of a summary judgment in Lee v. City of Gadsden, 592 So.2d 1036,1038 (Ala.1992):

“[0]ur review of a summary judgment is de novo; that is, we must examine all the evidentiary submissions that were presented to the trial court. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). The two-tiered standard of review for summary judgment has been repeatedly stated: (1) there must be no genuine issues of material fact, and (2) the mov-ant must be entitled to a judgment as a matter of law. Ala. R. Civ. P. 56(c), Tripp v. Humana, Inc., 474 So.2d 88 (Ala.1985). Further, on review of a summary judgment, we must view all the evidence in a light most favorable to the nonmovant and we must entertain all reasonable inferences from the evidence in favor of the nonmovant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So.2d 256 (Ala.1991). See, also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).
“The party moving for a summary judgment must make a prima facie showing that there are no genuine issues of material fact and that he is entitled to a judgment as a matter of law, Fincher, 583 So.2d at 257. If this showing is made, the burden then shifts to the non-movant to rebut the movant’s prima fa-cie showing by ‘substantial evidence.’ ”

(Footnote omitted.)

III. Analysis

In 1984 the Legislature established, as part of the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, a cause of action for retaliatory discharge based on the plaintiffs filing a claim for worker’s compensation benefits:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits under this chapter.... ”

Ala.Code 1975, § 25-5-11.1. In Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002), this Court articulated the following test for determining whether a plaintiff may recover for retaliatory discharge under § 25-5-11.1:

“In order for an employee to establish a prima facie case of retaliatory discharge the employee must show: (1) an employment relationship, (2) an on-the-job injury, (3) knowledge on the part of the employer of the on-the-job injury, and (4) subsequent termination of the employment based solely upon the employee’s on-the-job injury and the filing of a workers’ compensation claim.”

JVC does not dispute that Falls had an employment relationship with JVC, that Falls developed a medical condition during the course of that employment, or that JVC knew of that medical condition. JVC, however, does dispute that Falls’s medical condition was caused by or was related to her job and therefore disputes that JVC knew that Falls’s medical condition was caused by or was related to her job. JVC strongly denies that the termination of Falls’s employment was based solely upon her medical condition and her filing of a worker’s compensation claim.

We will focus upon the fourth prong of the Aldridge test, which is dispositive: whether the termination of Falls’s employment was based solely upon her medical condition and her filing of a worker’s compensation claim based on that condition. We will not elaborate on the second and third prongs of the Aid,ridge test, because resolution of those issues is not necessary to the resolution of this case.

We first observe that, according to the Aldridge test, the “subsequent termination” of Falls’s employment must have been “based solely upon [her] on-the-job injury and the filing of a workers’ compensation claim.” Aldridge, 854 So.2d at 563. However, Falls testified that she did not file a worker’s compensation claim until after JVC terminated her employment. Thus, the question is whether the termination of her employment can be considered “subsequent” to her filing a worker’s compensation claim and whether the sole reason for her discharge was her filing of a worker’s compensation claim.

Falls argues that “[s]ection 25-5-11.1 does not require formal commencement of a civil action as a prerequisite to recovery. Hexcel Decatur, Inc. v. Vickers, 908 So.2d 237, 242 (Ala.2005) (citing cases and refusing to overrule precedent to that effect).” Hexcel Decatur did hold that § 25-5-11.1 does not require, in a retaliatory-discharge action, that a civil action seeking worker’s compensation benefits be filed before the termination of the plaintiffs employment. The Court in Hexcel Decatur agreed with the plaintiffs argument that “only a claim for benefits need be made before the employment is terminated in order for a former employee to maintain a retaliatory-discharge action.” Hexcel Decatur, 908 So.2d at 239. The Court in Hexcel Decatur refused to overrule Tyson Foods, Inc. v. McCollum, 881 So.2d 976 (Ala.2003), and McClain v. Birmingham Coca-Cola Bottling Co., 578 So.2d 1299 (Ala.1991), both of which had held that the filing of a worker’s compensation claim, without the institution of a civil action seeking worker’s compensation benefits, was sufficient to meet the requirement of § 25-5-11.1.

However, Falls does not meet the requirement of § 25-5-11.1, even as interpreted by Hexcel Decatur, Tyson Foods, and McClain. Those cases held that § 25-5-11.1 could be satisfied if a worker’s compensation claim is filed before the former employee’s employment is terminated. There is no evidence indicating that Falls had filed a claim or even that she had talked about filing a claim before JVC terminated her employment. The only evidence of a retaliatory discharge is Gross’s testimony that she told Hamner that Falls’s injury could involve a “possible Worker’s Comp claim.” To treat Falls’s discharge as a retaliatory discharge, we would have to be convinced that Hamner terminated Falls’s employment in retaliation for her possibly filing a worker’s compensation claim that she had not filed or even talked about filing. And even if we were to be so convinced, treating her termination as a retaliatory discharge would stretch § 25-5-11.1 far beyond the outer limits of Hexcel Decatur, Tyson Foods, and McClain. Falls has failed to establish that she had commenced any kind of worker’s compensation claim before JVC terminated her employment.

If the Legislature desires to expand § 25-5-11.1 so that a retaliatory discharge would include terminations of employment in anticipation of workers’ compensation claims, it may do so by amending the statute. Unless and until the Legislature does so, however, we must interpret the statute as written. Because the statute uses the verb phrase “has instituted or maintained” in relation to an action to recover worker’s compensation benefits, it is clear that § 25-5-11.1 contemplates an action for a termination of employment in retaliation against an event, ie., the filing of a worker’s compensation claim, that has already occurred.

IV Conclusion

Alabama’s Workers’ Compensation Act provides compensation for employees who are injured and/or disabled on the job. Falls has testified that she filed an action seeking worker’s compensation benefits after her employment with JVC was terminated. We have been provided with no information as to the status or outcome of that action, and we make no judgment concerning its merits.

The case before us is limited to Falls’s claim of a retaliatory discharge under § 25-5-11.1. Under the facts of this case, Falls is unable to establish a prima facie case that she was discharged by JVC in retaliation for making a claim for benefits under the Workers’ Compensation Act. Therefore, the trial court did not err in entering a summary judgment for JVC, and we affirm that summary judgment.

AFFIRMED.

SEE, WOODALL, STUART, SMITH, BOLIN, and MURDOCK, JJ., concur.

LYONS, J., concurs specially.

COBB, C.J., concurs in part and concurs in the result.

LYONS, Justice

(concurring specially).

I concur in the main opinion, which refuses to recognize a claim of retaliatory discharge pursuant to § 25-5-11.1, Ala. Code 1975, under the circumstance here presented, when the former employee had not filed a claim for benefits under the Workers’ Compensation Act at the time she was discharged. Although the potential for injustice remains in the context where an employer fires an unconscious employee as the employee is being loaded into an ambulance, any expansion of the statutory remedy for a retaliatory discharge to meet circumstances where the employer knew or should have known of the likelihood of a claim is a matter for the legislature.

In addition to the above-described window of opportunity to be used by an employer to foreclose the statutory remedy, this Court’s recent decision in Blue Circle Cement Inc. v. Phillips, 989 So.2d 1025 (Ala.2007), opened a second window of opportunity in case the first window is missed. Under Blue Circle, an employee can be discharged after claiming benefits but before reaching maximum medical improvement, and the employer can defeat the subsequent retaliatory-discharge action by proof of the employee’s inability to work as the reason for discharge. As I stated in my dissent in Blue Circle, the defense of inability to perform as a basis for an employee’s discharge should not be available absent proof of the futility of further rehabilitation pursuant to benefits available to the employee under the Workers’ Compensation Act. I was in a small minority in Blue Circle-, the correction of this injustice, therefore, is also a matter for the legislature.

COBB, Chief Justice

(concurring in part and concurring in the result).

I concur in the holding that under the facts of this case Falls has failed to establish a prima facie case of retaliatory discharge under Ala.Code 1975, § 25-5-11.1. However, to the extent that the main opinion might be read as authority for the proposition that filing a worker’s compensation claim is a necessary prerequisite for establishing a prima facie case of retaliatory discharge in every case, I concur only in the result.

      .Falls testified that she had occasionally worked for brief periods in the packaging department of the disc facility, and that while she was working in the packaging department her symptoms became less severe but did not disappear. She did not consider a transfer to the packaging department to be an acceptable option because her symptoms, although less severe, were still present and because those who worked in packaging were temporary employees whose wages were less than hers.

      . The merits of Falls's worker’s compensation claim are not before this Court in this appeal.

      . This is apparently a typographical error. The date should be "6/22/04.”