author: ROBERTS, J.,

text:
    Richard DEAN, Appellant v. Katie C. SLADE, L. Guy Jackson and Flora S. Nichols Ragan, Appellees.
    No. 2009-CA-01793-COA.
    Court of Appeals of Mississippi.
    Nov. 9, 2010.
    Rehearing Denied April 5, 2011.
    Certiorari Denied June 23, 2011.

      Pepper Alyce Pearson, Gulfport, attorney for appellant.
    John Major Kinard, Kevin M. Melchi, Pascagoula, attorneys for appellees.
    Before MYERS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This is an adverse-possession case that was initiated by Richard Dean in the Chancery Court of Jackson County against the interests of Katie Slade, Guy Jackson, and Flora Nichols Ragan in a parcel of land near Vancleave, Mississippi. Based upon the testimony and evidence admitted at trial, the chancellor found that Dean failed to prove that he had adversely possessed the property.

PROCEDURAL HISTORY

¶ 2. Dean filed a complaint for adverse possession on May 25, 2006, in the Chancery Court of Jackson County. The subject property in this case is approximately eighty acres of unimproved real estate located near Vancleave, Mississippi (Van-cleave Property). The Vancleave Property is also the subject of a complaint for partition of real property filed in the Chancery Court of Jackson County by Slade and Jackson on December 9, 2005. However, the partition suit was stayed pending the result of Dean’s adverse-possession claim.

¶ 3. The adverse-possession suit proceeded to trial on March 5, 2009. In addition to Dean, Slade and Jackson were also present. Ragan was not present, and her attendance was waived by counsel. Jan Dean (Jan), Dean’s mother, was also absent from the proceeding, but she had previously entered a waiver of process and entry of appearance. Following the testimony detailed below, and a personal visit to the Vancleave Property by the chancellor, the chancellor concluded in a March 25, 2009, final judgment that Dean failed to prove by clear and convincing evidence that he had adversely possessed the Van-cleave Property. Aggrieved by the chancellor’s judgment, Dean appeals.

FACTS

A. The Relevant History of Ownership of the Vancleave Property

¶ 4. To provide some context as to how this suit came to be, we will briefly describe the relevant history of the ownership of the Vancleave Property. The property was originally owned by Louise B. Cox (Louise) and L.E. Cox (L.E.), who were Dean’s great grandparents and Slade’s and Jackson’s grandparents. After L.E. passed away, Louise, by warranty deed dated August 9, 1960, conveyed the property to their children: Fanny Louise Voitier, Audury Nichols (Audury), and Garland Cox (Garland). The deed was silent as to the type of ownership it passed to the trio.

¶ 5. Prior to his death in approximately 1993, Garland conveyed via a warranty deed his one-third interest in the property to his daughter, Slade. In an “Order Establishing the Heirs-at-Law of Audury M. Nichols, A/K/A/ Audury C. Nichols Deceased” admitted into evidence at trial, the chancellor found that Jackson and William David Nichols (William), deceased, were the sole heirs-at-law of Audury. Further, in a similar order, the chancellor found that Ragan was the sole heir-at-law of Nichols. The disposition of Voitier’s one-third interest was less clear. Voitier’s daughter, Jan, was declared her only heir-at-law by an order dated May 2, 2006. However, Dean claimed that Voitier orally conveyed her interest in the property to him in 1993. Dean also claimed that Louise’s conveyance of the property was as joint tenants with rights of survivorship. Thus, because Voitier was the longest-surviving sibling, it was Dean’s position that as a result of his grandmother’s oral conveyance, he owned the entire property. Nevertheless, based upon the above orders, the chancellor found that record title ownership of the Vancleave Property was vested in the following manner: Slade possessed a one-third interest; Jan possessed a one-third interest; Jackson possessed a one-sixth interest; and Ragan possessed a one-sixth interest.

B. Relevant Testimony at Trial

¶ 6. Dean testified that he lived in Texas for most of the time pertinent to this appeal, and he moved to Vancleave, Mississippi, in approximately 2005. According to Dean, when Voitier gave the property to him in 1993, he started paying the property taxes. Additionally, Dean began visiting the Vancleave Property several times a year. Dean testified that he also posted signs containing his name and contact information, repaired any existing fences that needed it, and introduced himself as the property owner to the adjacent landowners. Dean continued these activities as the years passed. Additionally, Dean testified that over the years he had given permission to various individuals to use the property for hunting and recreational purposes. Dean stated that the individuals seeking permission contacted him with the information listed on the posted signs. Evidence of these discussions was admitted in the form of liability waivers and stipulations of many of the Vancleave Property’s surrounding property owners. Generally, the five stipulated testimonies stated that Dean was the assumed owner of the Vancleave Property because of Dean’s representations as such, from the presence of the posted signs, and Dean’s general actions and overall presence on the property since 1993.

¶ 7. As evidence of his control over the property, Dean testified that he was approached by an adjacent landowner in approximately 1994, 1995, or 1996, and asked if he would allow an easement through the property for utility lines. Without consulting Slade or Jackson, he declined the offer. However, several months later, Dean happened to be on the property when he noticed that a utility company was cutting timber to make way for power lines. Dean intervened. He informed them that he owned the property and that he did not approve the easement. Dean was eventually partially reimbursed for the damage to the property. There was no testimony that indicated Slade or Jackson were ever aware of these events.

¶ 8. Dean also testified that he had received several inquires into whether he was interested in selling the property. He testified that he declined all offers because he planned on building a home on the property.

¶ 9. Dean also testified that he had the ad valorem taxes on the property “changed over to [him]” in 1993. He further stated that: at some point, Slade had the taxes changed back to her; this back-and-forth occurred twice more; he finally changed it back to him in 1995; and he paid them through 2001. Dean testified that at some point between 1993 and 1994, he informed Slade that she did not have any ownership interest in the property.

¶ 10. Dean’s grandmother, Voitier, died in 2000, while she was living in Florida. Dean stated that she died intestate, and he had attempted to obtain title ownership. However, he was advised that because she died in Florida, the probate process would be expensive and time-consuming. Dean testified that he was told by the “tax office” to allow the taxes owed to become delinquent for a period of time and then buy the Vancleave Property at the eventual tax auction. He complied, failed to pay the 2002 and 2003 taxes due, and purchased the property without consulting either Jackson or Slade. Dean testified that no one else contributed to the taxes owed on the property from 1993 through the tax sale.

¶ 11. Dean testified that Garland and Voitier had an arrangement that Garland would actually pay the taxes, and Voitier would subsequently pay Garland her portion of the taxes due. Tax bills for several years that were admitted into evidence showed that the property was in the name of “Voitier Fannie Louise Et Al” for tax purposes during all times pertinent to this appeal. Dean’s name and address were listed as the billing address on each bill starting in 1995, which showed Slade’s name and address physically crossed out and Dean’s information written in. When asked about this, Dean stated: “I don’t know about the legal, but as far as I’m concerned, [the property was assessed in my name]; because I was the guy writing the check....” However, Dean’s attorney eventually stipulated that the property was assessed to Voitier.

¶ 12. Jackson was next to testify. During all pertinent times associated with this appeal, Jackson lived in Fairhope, Alabama. He testified that the last and only time he visited the Vancleave Property was in 1992, with Dean. Jackson testified that during his 1992 visit to the property, he did not see any improvements or posted signs. Jackson stated that he had between eight and ten conversations during the 1990s with Dean concerning selling Jackson’s interest or assisting in buying Slade’s interest in the property. Documents reflecting Jackson’s notations concerning conversations with Dean in 1997 and 1998 were admitted into evidence. Additionally, Jackson stated that he believed that he also had spoken with Dean in 2005, concerning the same issues. Jackson testified that Dean never sought his permission to post signs on the property, allow others on the property, or any other matter regarding the property. However, Jackson stated that in 1992, Dean mentioned that he was going to put up a fence.

¶ 13. Jackson stated that although Dean would at times imply, or outright state, that he owned the entire property, the reason for the 1992 visit was to discuss buying out the other interest holders. Dean testified that he and Jackson might have talked about buying Slade’s interest, but he could not recall. Jackson disagreed with Dean’s claims of full ownership, and Jackson verbally informed Dean that Jackson and Slade also owned an interest in the property. Also, Jackson testified that after the 1992 visit to the property with Dean, the pair went to Jackson’s house; and Jackson showed Dean a copy of Audu-ry’s last will and testament indicating that Jackson had a partial, undivided interest in the property. Jackson testified that Dean “kept saying he owned it all. And [Jackson] didn’t pay any attention to him.” During rebuttal testimony, Dean stated that he did not recall going to Jackson’s home or seeing the will.

¶ 14. Jackson testified that he had not paid any taxes on the property since approximately 1993. However, Jackson stated that in 1997, Dean had contacted him and asked him to pay them, but Dean rescinded his request before Jackson could comply.

¶ 15. Slade testified that until 2006, she lived approximately ten to fifteen minutes from the property in Gautier, Mississippi. Since Slade’s father died in 1993, she and her husband would walk the property once or twice a year. Slade described the property as a wooded thicket with no permanent structures or permanent roads. Slade also testified that she never saw any posted signs, was not sure if it was completely fenced, and never saw anyone else during her walks.

¶ 16. Slade’s recollection was that her father had paid the taxes through the 60s, 70s, and 80s. Slade stated that she knew Jackson and Jan, but the only contact she had with Dean was via telephone conversations. Slade testified that Dean called her in 1994 and said that he had Voitier’s interest. Slade claimed that Dean asked if she would be interested in buying Jackson’s interest.

¶ 17. Slade testified that in 1995, she was contacted by a realtor and asked if she was interested in selling the property. Slade contacted Jackson, who also had expressed interest in selling, and Dean, who was not interested in selling. Slade testified that there was some discussion about dividing the property, but Dean did not want to do so.

¶ 18. Slade testified that the taxes had always been in the name “Fannie Louise Voitier, Et. Al.” She stated that when her father was in charge of paying them it came “care of’ or “attention” to him. Then in 1992, she changed it to “care of’ Slade. Slade testified that she believed this continued until 1995 or 1996, when Dean changed the billing address to his own. Slade testified that she called Dean to ask about the change, and Dean told her that he felt he should pay the taxes for awhile since her family had paid them for so long. Slade characterized the agreement reached with Dean as a “rotational thing” in which Dean would pay the taxes for a period of time, then Jackson, and then herself. However, there was no testimony that Jackson had any knowledge of this agreement. Slade testified that throughout the years she and Dean had spoken about the property approximately eight times. However, Dean testified on rebuttal that other than one time in the early 1990s, he had never spoken with Slade about the property. According to Dean, when Slade called him regarding a realtor contacting her, Dean told Slade that she had no legal interest in the property.

¶ 19. In approximately 1996, 1997, or 1998, the property became delinquent in the payment of its taxes, and Slade called Dean to inquire about the delinquency. Slade testified that Dean stated that he would take care of it. Slade called once more concerning the tax payment, and the taxes were eventually paid. Years later, Slade discovered that Dean had again failed to pay the ad valorem taxes. However, in addition to not paying the 2002 and 2003 taxes on the property, Dean had also purchased the property at the resulting tax sale. Slade discovered that Dean had purchased the property because she was forced to redeem it in August 2005. Soon after Slade redeemed the property, she hired an attorney and filed a complaint to partition the Vancleave Property.

¶ 20. Slade testified that Dean routinely said that he, Slade, and Jackson had legal interests in the property. Additionally, Slade stated that Dean never said, or hinted, that he owned it all. However, during cross-examination, she stated that in the late 1990s, she and Dean had a conversation during which Dean stated that the property was his, and he could do with it what he wished.

DISCUSSION

¶ 21. This Court adheres to a limited standard of review of the decisions of a chancellor. Nichols v. Funderburk, 883 So.2d 554, 556 (¶ 7) (Miss.2004). We will reverse only when the chancellor’s determinations were manifestly wrong, clearly erroneous, or when the chancellor applied an incorrect legal standard. Id. A finding that the proof was insufficient to sustain a claim of adverse possession is a fact-finding that requires our application of the substantial evidence/manifest error test. Walker v. Murphree, 722 So.2d 1277, 1280 (¶ 15) (Miss.Ct.App.1998). If substantial evidence supports the chancellor’s fact-findings, this Court must affirm, even though we “might have found otherwise as an original matter.” Nichols, 883 So.2d at 556 (¶7). and where the chancellor has failed to make specific findings, we will assume that the chancellor resolved such issue in favor of the appellee. Id.

WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT FAILED TO PROVE THAT HE DID NOT GAIN TITLE TO THE VANCLEAVE PROPERTY BY ADVERSE POSSESSION

¶ 22. Dean argues that the chancellor erred in finding that Dean failed to prove that he had gained title to the property by adverse possession. Mississippi Code Annotated section 15-1-13(1) (Rev.2003) provides the following:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title[.]

Thus, the party claiming adverse possession must prove by clear and convincing evidence that his/her possession was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Stringer v. Robinson, 760 So.2d 6, 9 (¶ 13) (Miss.Ct.App.1999) (citing Rice v. Pritchard, 611 So.2d 869, 871 (Miss.1992)). “The ultimate question is whether the pos-sessory acts relied upon by the would be adverse possessor are sufficient enough to place the record title holder on notice that the lands are under an adverse claim of ownership.” Id. (citing Johnson v. Black, 469 So.2d 88, 90-91 (Miss.1985)). Clear and convincing evidence has been defined as follows:

that weight of proof which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact[-]finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case.

Moran v. Fairley, 919 So.2d 969, 975 (¶ 24) (Miss.Ct.App.2005) (quoting Travelhost, Inc. v. Blandford, 68 F.3d 958, 960 (5th Cir.1995)). “Clear and convincing evidence is such a high standard [of proof] that even the overwhelming weight of the evidence does not rise to the same level.” Id. (citing In re C.B., 574 So.2d 1869, 1375 (Miss.1990)).

A. Actual or Hostile

¶23. “Actual possession is ‘effective control over a definite area of land, evidenced by things visible to the eye or perceptible to the senses.’ ” Warehousing Mgmt, LLC v. Haywood Props., LP, 978 So.2d 684, 688 (¶20) (Miss.Ct.App.2008) (quoting Wicker v. Harvey, 937 So.2d 983, 993-94 (¶ 34) (Miss.Ct.App.2006)). The adverse possessor must hold the property without the permission of the true title owner since “permission defeats adverse possession.” Gillespie v. Kelly, 809 So.2d 702, 706-07 (¶ 14) (Miss.Ct.App.2001) (citing Myers v. Blair, 611 So.2d 969, 971 (Miss.1992)). “Adverse use is defined as such a use of the property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right.” Peagler v. Measells, 743 So.2d 389, 391 (Miss.Ct.App.1999) (quoting Cummins v. Dumas, 147 Miss. 215, 113 So. 332, 334 (1927)).

¶24. Dean argues that the chancellor should have found in his favor on this element because of the following reasons: he proclaimed his sole ownership of the property to Jackson and Slade; he posted signs on the property; he repaired the barbed-wire fence on the property; he changed the property-tax mailing address and paid the taxes for the property; and he gave others permission to use the property. However, given the facts of this case, we cannot find that the chancellor erred.

¶ 25. Although there was some contradiction as to the exacts dates, it is uncontested in the record that Dean changed the mailing address for the ad valorem taxes to his Texas address. It is further undisputed that when Slade became aware of the change, she contacted the Jackson County Tax Assessor’s Office and had the mailing address changed back to her address. Although disputed by Dean, when Slade changed the mailing address, she contacted Dean concerning his actions. According to Slade, Dean stated that he felt that he should pay the taxes since her family had paid them for so long. Additionally, Slade testified that they established a rotational responsibility for paying the taxes. Although there was some inconsistency in her testimony as to whether Dean had ever expressed his position of sole ownership over the property, we find that Jackson’s testimony, concerning Dean’s telephone call with regard to assisting in payment of the taxes due in 1997, corroborates Slade’s testimony that she contacted him during that approximate time period and expressed her concern over the past-due taxes. This also lends credence to Slade’s account of the rotational agreement. In any event, absent a finding of an abuse of discretion or manifest error, which we do not find, a chancellor is the sole judge of the credibility of witnesses and the weight to give to the evidence. Webb v. Drewrey, 4 So.3d 1078, 1081 (¶ 11) (Miss.Ct.App.2009).

¶ 26. Given our holding that the chancellor did not err in the implicit Ending that there was an agreement between Slade and Dean concerning the payment of taxes, Dean’s argument that there was an adverse or hostile taking must fail. Although it was established that Dean did not have any ownership rights in the property, the testimony of Jackson and Slade established that, at times, Dean held himself out to be a co-tenant, and Jackson and Slade believed him to be a co-tenant. Further, Dean’s several discussions since 1995, concerning purchasing the other co-tenants’ interests in the property, further established Dean’s position as a co-tenant in the eyes of Jackson and Slade. Eddy v. Clayton, 44 So.2d 395, 397 (Miss.1950). Additionally, Dean’s attempt to obtain title to the Vancleave Property though a tax sale tends to indicate that he recognized that Slade, Jackson, and possibly others had an ownership interest in the Vancleave Property. Therefore, his actions concerning the property, whether known to Jackson and Slade or not, could not be viewed as more than the acts of a perceived co-tenant in furtherance of what was thought to be joint ownership.

B. Open, Notorious, and Visible

¶ 27. With respect to this element, the chancellor found “that there were no acts to put the record title owners on notice of [Dean’s] adverse possession.” Dean argues that the chancellor erred by failing to find in his favor on this element of adverse possession. Additionally, Dean claims that the chancellor should have found that the property was “wild lands,” which requires a lower quality of actions with regard to a claim of adverse possession. Walker, 722 So.2d at 1281 (¶ 16). In support of his argument, Dean states that his actions of granting permission to various individuals to use the property, preventing encroachments on the property, unilaterally refusing offers to purchase the property, and informing Jackson and Slade that he was the sole owner of the property constitute sufficient evidence to show that his possession of the property was open, notorious, and visible.

¶ 28. The mere possession of land is not sufficient to satisfy the requirement that the adverse possessor’s use be open, notorious, and visible. Wicker, 937 So.2d at 994 (¶ 35) (citing Craft v. Thompson, 405 So.2d 128, 130 (Miss.1981)). A claim of adverse possession cannot begin unless the landowner has actual or constructive knowledge that there is an adverse claim against his property. Scrivener v. Johnson, 861 So.2d 1057, 1059 (¶ 6) (Miss.Ct.App.2003) (citing People’s Realty & Dev. Corp. v. Sullivan, 336 So.2d 1304, 1305 (Miss.1976)). “[A]n adverse possessor ‘must unfurl his flag on the land, and keep it flying, so that the (actual) owner may see, and if he will, [know] that an enemy has invaded his domains, and planted the standard of conquest.’ ” Wicker, 937 So.2d at 994 (¶ 35) (citing Blankinship v. Payton, 605 So.2d 817, 820 (Miss.1992)).

¶29. Based on our discussion above concerning actual or hostile possession, we cannot say that the chancellor erred. A determination as to whether the property could be classified as “wild lands” aside, given Dean’s illusory position as a co-tenant, none of his actions would have given the record title holders notice that he was attempting to adversely possess the property.

¶ 30. As a result of our findings that the chancellor did not abuse her discretion when she determined that Dean did not prove the preceding two elements of adverse possession by clear and convincing evidence, we find that further discussion is not warranted. Dean was required to demonstrate by clear and convincing evidence that each of the elements of adverse possession were met. The chancellor weighed the conflicting testimony against Dean, and there is substantial evidence to support her decision. Accordingly, we find this issue without merit and affirm the chancellor’s judgment.

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

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


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Susan REID, Individually, and on Behalf of the Wrongful Death Beneficiaries of William Reid, Deceased, Appellant v. MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
    No. 2009-CA-02040-COA.
    Court of Appeals of Mississippi.
    Dec. 14, 2010.
    Rehearing Denied March 22, 2011.
    Certiorari Denied June 23, 2011.

      C. Victor Welsh III, Jackson, attorney for appellant.
    Dale Gibson Russell, Ellen Patton Robb, Ridgeland, attorneys for appellee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Susan Reid, individually and on behalf of the -wrongful-death beneficiaries of William Reid, filed suit against Mississippi Farm Bureau Casualty Insurance Company, alleging that Farm Bureau underpaid uninsured-motorist (UM) benefits following William’s death, which resulted from a car accident caused by an underinsured negligent driver. The Circuit Court of Lawrence County granted summary judgment in favor of Farm Bureau. We find no error and affirm.

FACTS

¶2. The Reids had an auto-insurance policy with Farm Bureau that covered five of the Reids’ vehicles. Under the policy, the Reids carried UM coverage on only two of the vehicles — $50,000 on one and $25,000 on the other. They carried no UM coverage on the other three vehicles, although they did not execute a written waiver of such coverage for those vehicles. Because no waiver was obtained, Mississippi law reads $25,000 in UM coverage into the policy for those three vehicles.

¶ 3. William was driving one of the covered vehicles when he was killed in an accident caused by a negligent driver, who carried only $25,000 in liability coverage. Because the Reids’ UM coverage was triggered, Farm Bureau tendered $125,000 to the Reids. That was $75,000 for the UM coverage actually carried, plus $25,000 for each of the three vehicles without such coverage but for which no waiver was obtained, offset by the $25,000 already paid by the negligent driver’s insurer.

¶ 4. Susan filed suit alleging that Farm Bureau owed an additional $75,000 in UM coverage. The circuit court granted summary judgment in favor of Farm Bureau. Susan appeals.

STANDARD OF REVIEW

¶ 5. The standard of review of an order granting summary judgment is de novo. PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 49 (¶8) (Miss.2005). It is well settled that “[a] summary judgment motion is only properly granted when no genuine issue of material fact exists. The moving party has the burden of demonstrating that no genuine issue of material fact exists within the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.’ ” Id. (quoting M.R.C.P. 56(c)).

ANALYSIS

¶ 6. Every auto-insurance policy issued in the State of Mississippi must include UM coverage, unless the insured rejects such coverage in writing. Miss. Code Ann. § 83-11-101(1) (Rev.1999). This coverage cannot be less than the minimum amount required by statute. Id. Currently, the minimum amount of UM coverage for bodily injury or death to one person in one accident is $25,000. Miss. Code Ann. § 63 — 15—3(j) (Supp.2009). The insured may elect to carry UM coverage over the minimum amount, but such coverage cannot exceed the amount of bodily-injury liability coverage provided by the insured’s policy. Miss.Code Ann. § 83-11-101(1). If a policy is written without expressly providing UM coverage and no written waiver is obtained, the law reads into the policy the minimum amount, which is currently $25,000 for bodily injury or death to one person in one accident. See Owens v. Miss. Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074-75 (¶ 35) (Miss.2005).

¶ 7. In this case, the Reids’ policy did not expressly provide UM coverage for three of the five covered vehicles, and no written waiver was obtained. Therefore, by law, the policy implicitly provided the minimum UM coverage of $25,000 on each of those vehicles. Understanding this to be the case, Farm Bureau tendered $75,000 in UM coverage for those vehicles after the accident that took William’s life.

¶ 8. Susan argues that she is entitled to an additional $75,000 in UM coverage for those three vehicles. She claims that, at the time she applied for coverage, the agent failed to adequately explain to her the costs, risks, and benefits of carrying UM coverage over and above the statutory minimum, and if he had explained that to her, she would have opted to carry the maximum amount of coverage. Since her policy provided $50,000 in liability coverage on each vehicle, that was the maximum amount of UM coverage allowed under the statute. In sum, she claims that because of the agent’s negligence, there existed a gap of $25,000 per vehicle in UM coverage on the three vehicles; hence, her claim is for an additional $75,000.

¶ 9. However, Mississippi law does not require an insurance agent to explain the costs, risks, and benefits of carrying UM coverage over the statutory minimum. Owens, 910 So.2d at 1074-75 (¶ 35). In Owens, the Mississippi Supreme Court distinguished two separate issues that Susan’s brief conflates. First, when an insured waives UM coverage altogether, there is a question as to whether that waiver was knowing and intelligent. Id. at 1074 (¶ 34). In answering that question, the court will often look to whether the agent explained UM coverage to the insured. Id. Second and distinct is the question as to whether an agent has a legal duty to explain the costs, risks, and benefits of carrying UM coverage over the statutory minimum. Id. at 1074-75 (¶ 35). On that second question, the supreme court clearly answered in the negative. Id.

¶ 10. In this case, there is no question as to whether a waiver was knowingly and intelligently given. There was no waiver of UM coverage. The only question is whether the Reids’ agent had a duty to explain to them why they should or should not opt to cany UM coverage over the amount required by statute up to the liability limits of their policy. He did not owe them such a duty.

¶ 11. Because there was no duty, there are no fact issues that need to be resolved by trial. Summary judgment was proper, and this issue lacks merit.

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

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


author: MYERS, J.,

text:
    Jason FARRIS, Appellant v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
    No. 2009-CC-01919-COA.
    Court of Appeals of Mississippi.
    March 22, 2011.
    Rehearing Denied June 21, 2011.
    Frank A. Russell, Jeffrey Dean Leathers, Tupelo, attorneys for appellant.
    Thomas Wicker, Tupelo, attorney for ap-pellee.
    GRIFFIS, P.J., MYERS and CARLTON, JJ.
   MYERS, J.,

for the Court:

¶ 1. Jason Farris sued the Mississippi Transportation Commission (MTC) for injuries he sustained when a dead tree located in the highway right-of-way maintained by the Mississippi Department of Transportation (MDOT) fell on his vehicle. Following a bench trial in the Lee County Circuit Court, the trial court granted MDOT a judgment of dismissal based on a finding that MDOT could not be held liable under the Mississippi Tort Claims Act (MTCA). Finding no error, we affirm.

FACTS AND PROCEEDINGS

¶ 2. On July 13, 2003, Farris was driving north on Highway 371 in Lee County, Mississippi, when a portion of a dead pine tree located within MDOT’s right-of-way fell through the windshield of Farris’s pickup truck. A piece of the tree, measuring two to three inches in diameter, penetrated Farris’s lower abdomen causing Farris serious injuries. Doctors were able to repair much of the damage, but Farris continues to struggle with difficulties as a result of the accident.

¶ 3. Farris filed suit against MDOT, and a bench trial followed pursuant to Mississippi Code Annotated section 11^46-13(1) (Rev.2002). At trial, Farris presented expert testimony from Charles Williams, a forester, who inspected the remaining portions of the tree, more than fours years after the event. Williams opined that the pine tree was ten to twelve inches in diameter and had likely been dead for approximately six months at the time of the accident. Williams said that due to the visual effects associated with the decaying process, the pine tree would have stood prominent in the forest. But after looking at pictures taken of the fallen pine tree shortly after the accident, Williams could not say with certainty that the pine tree would have been readily observable to someone making an inspection by driving down the roadway.

¶ 4. After the close of Farris’s case-in-chief, MDOT moved for a judgment of involuntary dismissal. The trial court granted the motion, and it entered an order granting judgment in favor of MDOT.

¶5. In its order of dismissal, the trial court found that the dead pine tree grew more than thirty feet east of the paved portion of the roadway and approximately five to ten feet west of MDOT’s right-of-way marker. The area of the right-of-way from which the pine tree grew consisted of other trees and vegetation, and the area was not maintained by mowing. The trial court found no evidence that MDOT knew the existence of the dead tree prior to the accident, or that the tree constituted a known danger to those using the roadway. Evidence was presented that MDOT personnel traveled the highway in order to check for problems on the paved portion of the highway and the adjoined mowed section of the right-of-way. Witnesses for MDOT indicated that if they had known about the dead tree and had considered it a hazard to those using the roadway, it would have been removed. But the MDOT witnesses also testified that time and circumstances did not provide for inspection of the unmaintained portion of the right-of-way.

¶ 6. The trial court concluded that: maintenance of state roads is a discretionary function of MDOT, and MDOT is protected from liability of hazardous conditions of which it did not have notice. Accordingly, the trial court dismissed the case and denied all relief sought by Far-ris. This appeal followed.

¶ 7. Farris asserts two arguments on appeal. First, he contends that the trial court erred in finding that MDOT was immune pursuant to the discretionary-function exemption of Mississippi Code Annotated section ll-46-9(l)(d) (Supp. 2010). Second, Farris argues that the trial court erred in not finding that MDOT waived its immunity under the dangerous-condition exception of section ll-46-9(l)(v) (Supp.2010).

¶8. Additional facts will be related, as necessary, in our discussion.

STANDARD OF REVIEW

¶ 9. A trial judge sitting as trier of fact under section 11-46-13(1) is accorded the same deference with regard to his or her factual findings as that of a chancellor. Martin v. Franklin County, 29 So.3d 862, 865 (¶ 8) (Miss.Ct.App.2010) (citation omitted). When considering a motion for involuntary dismissal under Rule 41(b) of Mississippi Rules of Civil Procedure, “the trial court should consider ‘the evidence fairly, as distinguished from in the light most favorable to the plaintiff,’ and the judge should dismiss the case if it would find for the defendant.” Ladner v. Stone County, 938 So.2d 270, 273 (¶ 10) (Miss.Ct.App.2006) (quoting Century 21 Deep S. Props., Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992)). The trial judge’s factual findings will not be reversed on appeal where they are supported by substantial, credible, and reasonable evidence. Martin, 29 So.3d at 865 (¶ 8). Application of the MTCA is reviewed de novo. Miss. Dep’t. of Pub. Safety v. Durn, 861 So.2d 990, 994 (¶ 7) (Miss.2003).

DISCUSSION

I. WHETHER MDOT’S FAILURE TO REMOVE THE DEAD PINE TREE FROM ITS RIGHT-OF-WAY FALLS UNDER THE DISCRETIONARY-FUNCTION EXEMPTION OF SECTION 11-46-9.

¶ 10. Farris argues that pursuant to Mississippi Code Annotated section 65-1-65 (Rev.2005), MDOT is required to “organize an adequate and continuous patrol for the maintenance, repair, and inspection of all of the state-maintained highway system, so that said highways may be kept under proper maintenance and repair at all times.” Farris contends that according to MDOT’s Standard Operating Procedures (S.O.P.), MDOT is required to remove all trees more than four inches in diameter that are located within thirty feet of MDOT’s right-of-way. Accordingly, Far-ris maintains that MDOT cannot claim immunity in this case as it was obligated to remove the subject tree from its right-of-way.

¶ 11. The MTCA, per section Mississippi Code Annotated section 11^46-9(l)(d), provides immunity to a governmental entity and its employees “who perform (or decliné to perform) an action on the basis of ‘a discretionary function or duty whether or not the discretion be abused.’ ” Lee v. Miss. Dep’t of Transp., 37 So.3d 73, 78 (¶ 9) (Miss.Ct.App.2009) (quoting Willingham v. Miss. Transp. Comm’n, 944 So.2d 949, 951-52 (¶8) (Miss.Ct.App.2006)). “[T]he MTCA’s intent is to promote efficient and timely decision-making by government officials without fear of liability.” Miss. Dep’t of Mental Health and Ellisville State Sch. v. Shaw, 45 So.3d 656, 659 (¶ 13) (Miss.2010) (citation and internal quotation omitted).

¶ 12. In Shaw, the Mississippi Supreme Court reiterated the two-part test for determining whether the government’s conduct falls within the scope of the discretionary-function exception. The Shaw court said that:

In determining whether governmental conduct is discretionary the Court must answer 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.

Id. at (¶ 12).

¶ 13. In Lee, this Court held once again that the exercise and performance on the part of MDOT in the maintenance of its highways is a discretionary function. Lee, 37 So.3d at 77 (¶ 8). Section 65-1-65 does not “impose any specific directives ‘as to the time, manner, and conditions for carrying out ... MDOT’s duty in maintaining highways....”’ Id. at 77 (¶ 9) (quoting Knight v. Miss. Transp. Comm’n, 10 So.3d 962, 970 (¶ 27) (Miss.Ct.App.2009)). Rather, section 65-1-65 requires that MDOT use its judgment and discretion in carrying out that duty. Id.

¶ 14. Bill Jameson, District Engineer for MDOT, provided testimony that there are approximately 5,000 acres of right-of-way in Lee County, over the course of approximately 250 road miles which have to be inspected and maintained by fourteen employees assigned to Lee County. According to Jameson, the decision as to how many employees are assigned and available for work in a particular county is the result of joint input from MDOT and the State Personnel Board. The maintenance task to be performed by MDOT employees are governed, in part, by MDOT’s Maintenance and Field Operation Manual. Jameson testified that the Maintenance and Field Operations Manual contains guidelines with regard to the frequency of inspections, the number of persons conducting the inspections, and the method and mode of inspections. Jameson said that in carrying out these guidelines, “judgment calls” are often required.

¶ 15. The preface to MDOT’s S.O.P., which is contained in the Maintenance and Field Operation Manual, is consistent with Jameson’s testimony. S.O.P. No. MND-50-03-00-000 states at page one:

PURPOSE: Quality standards are an important part of the Maintenance Management System because they define the way a highway should look or function as a result of the maintenance effort. Most maintenance activities cannot be quantitatively defined because they are so complex and diverse. Therefore, the standards are generally written descriptions of the completed activity rather than a measured value.
The purpose of the quality standards is to provide guidance to a supervisor in the evaluation of work accomplishments and to establish a level of consistent maintenance service throughout the State.
Changes in available funds, equipment or personnel will require adjustments in the standards from time to time. Consequently, these standard[s] do not establish legal criteria as they are intended to function primarily as a guide for maintenance activities. The judgment of trained maintenance personnel must be relied upon to the determine what methods and materials will best achieve the desired results in keeping with the prime objective of the department which is to provide the motorist with a safe smooth riding surface and an adequately signed, satisfactorily drained, well kept roadway in the most economical manner possible.

¶ 16. On page seven of the S.O.P., is a section entitled “ROADSIDE MAINTENANCE.” In this section, on page ten of the S.O.P., is a provision entitled “Timber and Brush Control,” and it provides the following:

All trees located on state highway rights of way within 30 feet from the edge of the traveled way, which are four inches or more in diameter are to be cut flush with the ground and removed from the right of way except: (1) those of historical value or of special community interest; (2) those of scenic value on the rights of way of low speed highways in urban or built up areas; (3) those stipulated to remain in place by provision in right of way deeds; (4) those which cannot be reached by an out-of-control vehicle; (5) those located on U.S. Highway No. 90 between the Bay of St. Louis and Biloxi Bay.
Thick stands of trees and other trees which have shaded out vegetation cover may be gradually thinned and ultimately eliminated as this vegetative cover returns in areas in order that the necessity for costly erosion control work will be reduced or eliminated.

¶ 17. As mentioned, the trial court found that the subject pine tree was located more than thirty feet from the edge of the roadway. For the sake of thoroughness, we point out that the record is inconclusive as to how far, exactly, from the roadway’s edge the pine tree stood. Far-ris did not provide precise measurements as to the tree’s location during his case-in-chief. Instead, Farris’s expert, Williams, estimated by memory that the pine tree grew ten to twelve feet west of MDOT’s right-of-way marker. And the testimonies provided by MDOT’s witnesses only indicate that the width of MDOT’s right-of-way at this particular location is sixty feet from the “center line” of the two-lane highway. That said, this case does not turn on whether the subject pine tree grew within thirty feet of the edge of the roadway.

¶ 18. First, as a practical observation (this being despite the fact that MDOT provided little testimony with regard to this particular S.O.P. provision at trial), it is fairly obvious that the thirty-foot-elearance requirement is not contemplated as a demarcation point. According to the record, the subject pine tree was forty feet in length, and this stretch of highway is lined with similar pine trees. Neither this provision, nor any other provision contained in MDOT’s S.O.P., mentions tree height. Second, and more to the point, even though the provision contains obligatory language, it is qualified by a number of exceptions, which clearly require the use of judgment and discretion with regard to trees located within the thirty-foot area adjoining MDOT’s highways. Based on our reading of this provision, it is intended to operate as a general guideline, and it does not establish a mandatory requirement so as to deprive MDOT of its discretion.

¶ 19. As MDOT witnesses testified, MDOT has and will continue to remove dead trees from areas adjacent to its roadways that pose a danger to traveling motorists. But there is no statute, rule, regulation, or order that compels MDOT or its employees to inspect every existing tree alongside its highways in carrying out that plan. That no such requirement exists, is, as Jameson indicated, an economic decision, which we may not second guess.

¶20. Accordingly, we agree with the trial court’s finding that MDOT cannot be held liable for not having removed the dead pine tree at issue in this case. MDOT’s action (or inaction) falls within the scope of the discretionary-function exception provided by section ll-46-9(l)(d). This issue is without merit.

II. WHETHER MTC WAIVED ITS IMMUNITY UNDER THE DANGEROUS-CONDITION EXCEPTION OF ll-46-9(l)(v).

¶ 21. Farris contends that he presented evidence that the pine tree had been dead for six months, the condition of which would have made the tree noticeable to MDOT upon proper inspection. Farris, thus, argues that there is enough here to show that MDOT was on constructive notice that the pine tree constituted a dangerous condition.

¶ 22. In Knight, this Court explained that “where any of the immunities enumerated in section 11-49-9(1) apply, the government is completely immune from the claims arising from the act or omission complained of.” Knight, 10 So.3d at 971 (¶ 33) (quoting Willing v. Estate of Benz, 958 So.2d 1240, 1255 (¶40) (Miss.Ct.App.2007)).

¶ 23. Having found that MDOT’s conduct falls within the scope of the discretionary-function exception under section 11 — 46—9(l)(d), Farris’s argument that the dangerous-condition exception found under section llA6-9(l)(v) applies, must fail. Id. Therefore, this issue is also without merit.

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

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

      . The Mississippi Transportation Commission is the actual party opposing Farris. MDOT, however, maintains the highways “subject to the rules, regulations, and orders” of the MTC. See Miss.Code Ann. § 65-1-1 (Rev. 2005) and § 65-1-65 (Rev.2005). Because the parties and the trial court repeatedly refer to MDOT rather than MTC throughout the case, this opinion hereinafter will also in order to avoid confusion.

      . Both parties periodically refer to section 11-46-9 as "11-26-9” in their respective briefs on appeal. There is no such section in the Mississippi Code, and it is clear that both parties meant section 11-46-9.


author: CARLTON, J.,

text:
    Thomas J. AMERSON, Appellant v. Christopher B. EPPS and State of Mississippi, Appellees.
    No. 2010-CP-00685-COA.
    Court of Appeals of Mississippi.
    May 24, 2011.

      Thomas J. Amerson, Appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   CARLTON, J.,

for the Court:

¶ 1. Thomas J. Amerson, appearing pro se, appeals the decision of the Sunflower County Circuit Court, which affirmed the Mississippi Department of Corrections’ (MDOC) calculation of his sentences. We find no error and affirm.

FACTS

¶ 2. On September 7,1990, Amerson was incarcerated in the Lauderdale County Jail while awaiting trial on the charge of carrying a concealed weapon. On April 23, 1991, Amerson was sentenced on this charge as a habitual offender and ordered to serve five years. The MDOC credited Amerson’s sentence for the 228 days of jail time that he had served prior to the sentencing on this charge.

¶ 3. Amerson claims that he was served with an arrest warrant on October 29, 1990, for the crime of arson. Amerson was convicted of arson, damaging public property, and inciting a riot on May 22, 1991, and sentenced in the aggregate to ten years’ imprisonment as a habitual offender with the aggregate sentence to run consecutively to his concealed-weapon sentence. Amerson also claims that he was served with a warrant for his arrest for simple assault of a law-enforcement officer on March 20, 1991. On September 4, 1991, Amerson was convicted of simple assault and sentenced as a habitual offender to five years to run consecutively to his arson sentence. Since September 7, 1990, Amerson has been continuously incarcerated in jail and/or prison, as he committed the crimes of arson, damaging public property, inciting a riot, and simple assault while incarcerated.

¶ 4. Amerson filed a request for administrative remedy with the MDOC through its Administrative Remedy Program (ARP). Amerson argued that the MDOC improperly calculated his jail-time credits and requested additional credits be applied toward his arson and assault sentences. The MDOC denied his request, concluding that Amerson had received all of the jail-time credits to which he was entitled.

¶ 5. Having exhausted his administrative appeals within the MDOC’s ARP, Amerson appealed the MDOC’s ruling to the Sunflower County Circuit Court. After a hearing on April 7, 2010, the trial court affirmed the ARP’s denial of his grievance and ruled that the MDOC had correctly calculated Amerson’s sentences. On April 23, 2010, Amerson filed a notice of appeal. The trial court then held a second hearing on May 26, 2010, and subsequently entered an order allowing Amerson to proceed in forma pauperis in perfecting his appeal to the Mississippi Supreme Court.

¶ 6. Aggrieved, Amerson raises the following issues as error, which have been restated for purposes of clarity and concision: whether (1) the trial court erred in finding that Amerson was only entitled to 228 days of jail-time credits; (2) Amerson was deprived of his right to confrontation and his right to establish a record due to Epps’s absence at the hearing before the trial court; and (3) the trial court abused its discretion by summoning Amerson to a second hearing.

DISCUSSION

I. SENTENCE CALCULATION

¶ 7. Amerson argues that the trial court erred in finding that the MDOC had correctly computed his jail-time credits. Specifically, Amerson seeks 205 days of jail-time credits for the time that he spent incarcerated while awaiting trial on his arson charge and 168 days for the time spent incarcerated while awaiting trial on his assault charge. Amerson claims that the MDOC’s denial of these jail-time credits deprived him of due process of law. In the State’s appellate brief, the State and Epps respond that because Amerson was sentenced as a habitual offender and his sentences were ordered to run consecutively to the immediately preceding sentence, he had to serve the entirety of his first sentence before he was eligible to receive any credit toward the service of his other sentences. In its responses to Am-erson’s ARP requests, the MDOC explained to Amerson that he was only allowed credit for the time spent in jail prior to being sentenced and/or while awaiting trial.

¶ 8. On appeal, “[t]his Court cannot disturb the decision of an administrative agency, here the MDOC, unless the decision was unsupported by substantial evidence, was arbitrary or capricious, was beyond the agency’s scope or powers or violated the constitutional or statutory rights of the aggrieved party.” Siggers v. Epps, 962 So.2d 78, 80 (¶ 4) (Miss.Ct.App.2007) (citing Edwards v. Booker, 796 So.2d 991, 994 (¶ 10) (Miss.2001)). See Uniform Rule of Circuit and County Court 5.03.

¶ 9. Turning to the law applicable to the underlying dispute, we find that Mississippi Code Annotated section 99-19-23 (Rev. 2007) speaks to the process employed when calculating and applying jail-time credits toward a prisoner’s incarceration time. Section 99-19-23 states:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.

“However, ... ‘a prisoner actually serving time for another conviction is not, within the meaning of Section 99-19-23, being held to await trial.’ ” Bailey v. State, 19 So.3d 828, 831 (¶ 15) (Miss.Ct.App.2009).

¶ 10. The record contains the concise opinion of the trial judge affirming the MDOC’s calculation of Amerson’s jail-time credits. The trial judge found as follows:

On April 23, 1991 Amerson was sentenced in Lauderdale County, Mississippi[,] to five (5) years as a habitual criminal for carrying a concealed weapon. The Lauderdale [Cjounty [JJail credited him with two hundred and twenty-eight (228) days of jail time prior to sentencing. Since his sentence began date of September 7,1990[,] he has been continuously incarcerated in jail and/or prison as the other crimes were all committed while he was incarcerated.
Amerson’s claim was that time spent in jail after arrest for the crimes committed in jail was “jail time” which should further reduce his sentences. The State argued that he got credit from the start date and everything after that date was part of his prison time, as he was continuously incarcerated.
The Court noted that Amerson was continuously incarcerated since the September 7, 1990 jail time began, and that September 7, 1990[,] was the beginning date for all sentences. Amerson cannot receive “jail time” and sentence credits simultaneously, only once, and he has gotten all credits to which he is entitled. Amerson’s sentences began September 7,1990. His first sentence [on] April 23, 1991[,] is five (5) years [as a] habitual for carrying a concealed weapon. His second sentence [on] May 22, 1991[,] is ten (10) years [as a] habitual for arson [to run] consecutively]. Hi[s] next sentence [on] May 22, 1991[,] is five (5) years for damaging public property [to run] concurrently. His next sentence [on] May 22, 1991[,] is ten (10) years [to run] consecutively for inciting a riot. His final sentence [on] September 4, 1991 [,] is a five (5) year simple assault [of a law-enforcement officer] sentence as a habitual criminal.
The Court finds the Mississippi Department of Corrections to have correctly computed Mr. Amerson’s five (5) sentences as he conceded in the pre-hearing after the Court explained it to him.
This matter is hereby finally dismissed with prejudice. His only pre-felony jail time was September 7, 1990[,] to April 23, 1991; two hundred and twenty-eight (228) days.

¶ 11. Upon review, this Court acknowledges that a limited standard of review is employed when reviewing a decision of an administrative agency, such as the MDOC. See Eason v. Epps, 32 So.3d 538, 540 (¶ 6) (Miss.Ct.App.2009) (quoting Siggers, 962 So.2d at 80 (¶ 4)). As noted by the trial judge, Amerson was already incarcerated awaiting trial on his concealed-weapon charge. Also, after Amer-son was later convicted of the concealed-weapon charge, and serving the time imposed for the offense, he was then convicted and sentenced for his subsequent offenses of arson, damaging public property, inciting a riot, and simple assault. Therefore, this Court finds that the trial court’s decision to affirm the MDOC’s calculation of Amerson’s sentences was supported by substantial evidence, was not arbitrary or capricious, was not beyond the agency’s scope of powers, and did not violate Amer-son’s constitutional or statutory rights.

¶ 12. Amerson next argues that the trial court erred in finding that he sought to receive jail-time credits toward all five of his sentences, rather than only his arson and assault sentences, and that the trial court erred in finding that he had conceded the fact that all of his jail-time credits were properly calculated. We find that the record fails to support Amerson’s contentions. See Mason v. State, 440 So.2d 318, 319 (Miss.1983) (“We have on many occasions held that we must decide each case by the facts shown in the record, not assertions in the brief, however sincere counsel may be in those assertions.”). We further conclude that this issue lacks merit since we concur with the trial court’s finding that the MDOC properly calculated Amerson’s sentence. Accordingly, we find that the decision by the MDOC was not arbitrary and capricious, and the MDOC’s calculation was in accordance with the law and fell within the agency’s authority. This issue lacks merit.

II. RIGHT TO CONFRONTATION

¶ 13. Amerson next argues that the trial court deprived him of his due-process rights by not allowing him to confront Epps in open court. In response, the State and Epps argue that no violation of Amerson’s Sixth Amendment right to confrontation occurred. The State and Epps contend that Epps was named in this civil action in his official capacity as Commissioner of the MDOC, and neither any evidence nor allegation exists in the record reflecting any testimony by Epps. Therefore, Amerson was not subsequently being refused the opportunity for cross-examination of any “accuser.”

¶ 14. Upon a review of the record, this Court agrees with the position of the State and of Epps that no violation of Amerson’s Sixth Amendment rights occurred. As this case constitutes a civil matter, and because no right of confrontation exists in civil cases, this claim is without merit. See U.S. Const, amend. VI. As such, this issue lacks merit.

III. SECOND HEARING

¶ 15. After Amerson filed his notice of appeal on April 23, 2010, the trial court held a hearing on May 26, 2010, and then entered an order allowing Amerson to proceed in forma pauperis in perfecting his appeal. In Amerson’s final assignment of error, he argues that the trial court lacked jurisdiction to require him to appear in court for a “second hearing” after he had filed his notice of appeal. However, a review of the record reveals that the trial court only held the hearing, which occurred after Amerson had filed his notice of appeal and application for in forma pau-peris status, to determine whether to grant Amerson authority to proceed in forma pauperis on appeal.

¶ 16. The record shows that Amer-son filed an affidavit of poverty, along with an application to proceed on appeal in for-ma pauperis, and a notice of appeal on April 23, 2010. The record further reflects that the hearing on that application occurred in the trial court on May 26, 2010. While Amerson argues that the merits of his appeal were re-evaluated at his second hearing, the record fails to support this proposition. This Court can only consider that which is in the record before us. See Barnes v. State, 937 So.2d 1006, 1009 (¶ 6) (Miss.Ct.App.2006) (finding that appellate courts may only consider the facts that are in the record and cannot rely on a petitioner’s allegations in his brief). The record before this Court in the present case reflects that the only order entered by the trial court after Amerson filed his notice of appeal constituted an order allowing Amerson to proceed in for-ma pauperis in perfecting his appeal. The trial court committed no error in holding a hearing to consider Amerson’s application for in forma pauperis status and committed no error in issuing an order allowing Amerson to proceed in forma pauperis. An order granting authority to proceed in forma pauperis falls within the trial court’s authority to grant and such order fails to broaden, amend, modify, vacate, clarify, or rehear a previous decree of the court. See generally M.R.C.P. 60(b); Am.Jur. Costs § 98 (2005) (stating that “[ojrdinarily, where litigants cannot afford to pay a filing fee, that fee is waived so that poverty will not create a de facto barrier to access to the courts.”). Therefore, we find that this issue lacks merit.

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

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

      . Amerson does not provide this Court with the date on which he was arrested for the charges of damaging public property and inciting a riot. However, because Amerson does not raise error with the time that he was incarcerated awaiting trial on these charges, we find that this information is not pertinent to today’s discussion.

      . Amerson was sentenced as a habitual offender to ten years for his arson conviction to run consecutively to his concealed-weapon sentence, to five years for his damaging-public-property conviction to run concurrently to his arson sentence, and to ten years for his inciting-a-riot conviction to run concurrently to his damaging-public-property sentence.

      . Dorothy Johnson, the MDOC Records Supervisor, responded to Amerson’s first ARP request by stating the following:
      You are only allowed credit for pre-trial detention which is the time spent in jail prior to being sentenced and/or while awaiting trial. You were arrested 9-7-90 and while in jail you committed new crimes which resulted in convictions on 5-22-91. Therefore, your jail time credit of 228 days from 9-7-90 thrfough] 4-23-91 includes time from 10-29-90 and 3-20-91. You will not be credited an additional 205 and 168 days [of] jail time.
      Lawrence Kelly, the MDOC Superintendent, and Christopher Epps, the MDOC Commissioner, provided similar responses to Amer-son’s second and third ARP requests.

      . The Mississippi Supreme Court assigned the present case to this Court.

      . Amerson raises the following three issues all relating to the calculation of his sentences in his brief on appeal: whether the trial court (1) applied an erroneous finding of fact in determining that it was Amerson’s desire to have prison personnel award him additional jail-time credits on all five of his sentences; (2) abused its discretion in finding that Amer-son was only entitled to 228 days of jail-time credits, contrary to mandatory Mississippi law; and (3) employed an erroneous finding of fact in determining that Amerson conceded to the prison personnel's computation of his jail-time credits at the hearing. For clarity, this Court will combine these issues into one issue for the sake of today's discussion.

      . Amerson claims that he was served with an arrest warrant on October 29, 1990, for the crime of arson, but he was not sentenced until May 22, 1991, resulting in a total incarceration time of 205 days for this charge. Amer-son also contends that he was served with a warrant for his arrest for assault on March 20, 1991, and was sentenced on September 4, 1991, resulting in a total incarceration time of 168 days for this charge.

      . Throughout their brief, the State and Epps refer to Amerson’s three separate May 22, 1991 convictions collectively as one sentence, the arson sentence. The State and Epps explain in their brief that because the other two crimes, damaging public property and inciting a riot, were less than or equal in length to the arson sentence, were not habitual, and were ordered to run concurrently with the arson sentence, the arson sentence controls the time he had to serve for all three sentences.

      . While the trial court's order provides that Amerson is to serve ten years for inciting a riot to run consecutively to his previous sentences, the MDOC time sheet clearly provides that this charge is to run. concurrently to Am-erson’s sentence for damaging public property-

      . "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him_” U.S. Const. amend. VI.

      . Mississippi Rule of Appellate Procedure 6(a)(1) provides for criminal appeals in forma pauperis: "A defendant in a criminal case in a trial court who desires to proceed on appeal in forma pauperis shall file in the trial court a motion for leave so to proceed, together with an affidavit showing the defendant’s inability to pay fees and costs.”

      .The appellate record fails to include the transcript of the hearing that occurred in the trial court on May 26, 2010. "It is the appellant's duty to compile an appellate record that sufficiently reflects the trial court proceedings that form the factual basis of the arguments on appeal.” Clark v. State, 40 So.3d 531, 540 n. 4 (Miss.2010) (citing Byrom v. State, 863 So.2d 836, 853 (¶ 35) (Miss.2003)).

      . See Green v. Sparkman, 829 So.2d 1290, 1291 (¶ 3) (Miss.Ct.App.2002) (finding no abuse of discretion in the trial court's certification of in forma pauperis status for an inmate who brought a claim seeking additional earned jail-time credits even though the claim did not concern post-conviction relief).


author: IRVING, P.J.,

text:
    Jason Christopher MARTIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00974-COA.
    Court of Appeals of Mississippi.
    May 31, 2011.

      Jason Christopher Martin, Appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of Jason Christopher Martin’s guilty plea, in the Lincoln County Circuit Court, to possession of marijuana with intent to distribute. After the circuit court accepted Martin’s plea, it sentenced him to fifteen years in the custody of the Mississippi Department of Corrections. On March 18, 2010, almost six years after he had pleaded guilty, Martin filed a motion for post-conviction relief, requesting that his guilty plea and conviction be set aside. The circuit court denied Martin’s motion as untimely. Feeling aggrieved, Martin appeals and asserts that the circuit court erred.

¶2. Finding no error, we affirm the circuit court’s judgment.

FACTS

¶ 3. Martin pleaded guilty on June 23, 2004. On March 18, 2010, he filed his motion for post-conviction relief, alleging that his plea was involuntary, that he received ineffective assistance of counsel, that he was misinformed as to the elements and penalties of possession of marijuana, and that he was mentally unable to understand “the judicial process” at the time of his plea. As evidence, Martin attached an affidavit, wherein he averred that his attorney had convinced him to plead guilty without explaining the elements of the crime of possession of marijuana with intent to distribute, that his attorney informed him that he would receive only eight years as a sentence, and that his attorney never discussed any pretrial strategies with him.

¶ 4. When entering his guilty plea, Martin engaged the circuit court in the following colloquy:

[COURT]: Are you under the influence of any drugs or alcohol or medicine or narcotic this morning?
[MARTIN]: No, sir.
[COURT]: ... Mr. Fernald and Mr. Ainsworth have been your attorneys. Has one of them been in court with you at all stages of the proceedings?
[MARTIN]: Yes, sir.
[COURT]: Did they go over the indictment with you and the elements of the crime?
[MARTIN]: Yes, sir.
[COURT]: Do you understand the elements of the crime?
[MARTIN]: (Non-verbal response, nodding head.)
⅝ ⅜* *
[COURT]: Did they go over the police reports and the case reports, the information, discovery material provided from the district attorney’s file? Did they go over that with you?
[MARTIN]: Yes, sir.
[COURT]: Have they answered all of your questions?
[MARTIN]: Yes, sir.
[COURT]: Are you satisfied with their representation?
[MARTIN]: Yes, sir.
[COURT]: There is no minimum sentence nor minimum fíne. The maximum sentence is thirty years ... [.]
[DEFENSE ATTORNEY]: Twenty years.
[COURT]: Is it twenty or thirty? The maximum sentence is twenty years and the maximum fine is $30,000.00. Do you understand those maximum penalties?
[MARTIN]: Yes, sir.
[COURT]: Do you understand that a guilty plea waives all these rights and places you in a position where you can be sentenced by the Court up to the maximum sentence provided by law?
[MARTIN]: Yes, sir.
[COURT]: Has anyone threatened, abused, or promised you anything to cause you to want to plead guilty?
[MARTIN]: No, sir.
[COURT]: I understand that this was a blind plea.
[DEFENSE ATTORNEY]: Your Hon- or, that was the original officer [sic][,] and I believe the omnibus was in March of this year. If you want to comment on the record about the expiration of that offer, then ...
[COURT]: I don’t know if this offer was made thinking that the max was thirty years or twenty years, but the offer was fifteen years, seven suspended, eight years to serve, with the remaining seven years to be served on five years’ probation. The omnibus-motion/plea day is not in the court file ...[•]
[DEFENSE ATTORNEY]: Here is a copy right here, Your Honor.
[COURT]: ... which was February 19, which we extended the plea day until March 8 of this year and the plea day has long since past [sic], so this is a blind plea.

¶ 5. After accepting Martin’s plea, the circuit court stated the following in sentencing him:

Mr. Martin, you’ve got a clean record. You had a motion, omnibus-plea day set in February, and we extended the plea day until March the something for you. You should have pled, if you were guilty, then. But you figured that you’d get a better plea bargain offer if you waited, but you ain’t_You could have served eight years, been ordered to serve eight years. You would have been sentenced to fifteen with seven suspended, to serve eight.
Alright [sic]. I tell you what. You’re not going to be able to pay [the court costs and fines] while you’re in jail, so I’m going to sentence you to fifteen and order that you serve twelve[,] so you’ll have three hanging over your head when you get out in case you decide you don’t want to pay this.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶7. In reviewing an appeal from the denial of a motion for post-conviction relief, we “will not disturb the factual findings of a trial court in denying the petition unless such findings are clearly erroneous.” Rowland v. State, 42 So.3d 503, 506 (¶ 8) (Miss.2010) (citing Moore v. State, 986 So.2d 928, 932 (¶ 13) (Miss.2008)). “However, where questions of law are raised!,] the applicable standard of review is de novo.” Id. (quoting Moore, 986 So.2d at 932 (¶ 13)).

¶ 8. According to section 99-39-5(2) of the Mississippi Code Annotated (Supp. 2010): “A motion for relief under this article shall be made ... in [the] case of a guilty plea, within three (3) years after entry of the judgment of conviction.” Section 99-39-5(2)(a)(i) provides some exceptions to the three-year statute of limitations, including:

an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of [the] conviction or sentence or that [the petitioner] has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence.

Martin has provided no evidence that was not reasonably discoverable at trial, nor has he alleged that there is an intervening decision that would have changed the outcome of his trial. Martin has also failed to show an error affecting his fundamental constitutional rights, which would overcome the procedural bar to his claims.

¶ 9. Martin’s appeal was filed almost six years after the entry of his guilty plea, and Martin has failed to show any exception to the procedural bar. Procedural bar notwithstanding, the record belies Martin’s contention that he was not informed as to the elements of the crime of possession of marijuana with intent to distribute and his claim that he thought he would receive a sentence of only eight years’ imprisonment. Accordingly, this issue is proeedurally barred and is also without merit.

¶ 10. For the reasons above, we affirm the circuit court’s judgment.

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

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