author: ROBERTS, J.,

text:
    Kenneth Ray ELLIS, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KM-02030-COA.
    Court of Appeals of Mississippi.
    April 19, 2011.
    Rehearing Denied Oct. 25, 2011.
    Certiorari Denied Jan. 19, 2012.

      V.W. Carmody Jr., Kevin Thomas Stewart, Lance O’Neal Mixon, attorneys for appellant.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Kenneth Ray Ellis was convicted of driving under the influence of intoxicating liquor in a bench trial in the Carroll County Circuit Court. He was fined and given a forty-eight-hour suspended sentence. Aggrieved, he raises three issues on appeal: (1) whether the circuit court erred in failing to grant a verdict of acquittal because the State failed to preserve video evidence from the traffic stop, (2) whether the trial court erred in admitting all evidence obtained after the traffic stop since Ellis was acquitted of the careless driving that had been the basis for the traffic stop, and (3) whether the evidence was legally sufficient to support the verdict and the verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Mississippi Highway Patrolman Keith Conner was patrolling the northbound lanes of Interstate 55 in Carroll County, Mississippi, at approximately 10:00 p.m. on January 14, 2009. He heard a truck driver in the southbound lane on the driver’s CB radio communicate seeking help from the highway patrol for an SUV being driven in the southbound lane. The SUV was later determined to be driven by Ellis of Ridgeland, Mississippi. Patrolman Conner told the truck driver to stay behind the SUV until he could cross over the median and get behind the SUV.

¶ 4. After this was done, Patrolman Conner said he stayed behind the vehicle for two to three miles observing the driver. Patrolman Conner said that when he saw the SUV go from the fog line back across to the center line weaving in the traffic, he decided to “shut [Ellis] down for the safety of other people on the highway.”

¶ 5. Patrolman Conner put on his blue light to initiate a stop, but Ellis did not immediately stop. Instead, he pulled over and kept moving down the shoulder of the interstate at a slow pace. At this point, Patrolman Conner turned on his spotlight and shined it through the back glass of the SUV in order to stop the vehicle. When Ellis finally came to a stop, his vehicle was parked right on the fog line so that Patrolman Conner could not approach the vehicle without being in the interstate. Patrolman Conner said that he had to direct Ellis to cut his wheels hard to the right and pull further off the interstate so the officer could safely approach the vehicle.

¶ 6. Ellis’s version of the stop was that he saw the officer following him “for some time.” When the patrolman put on his blue lights, Ellis said he slowed down, but he did not stop. He said this was because he was trying to make it to the next exit ramp where he could pull over safely. When Patrolman Conner put on his spotlight, Ellis said that he immediately stopped.

¶ 7. Patrolman Conner said that when he approached the vehicle, he asked Ellis for his driver’s license and proof of insurance. As this was taking place, Patrolman Conner testified that there was a “very strong smell of alcoholic beverage” coming from Ellis, who was the only person in the SUV. Patrolman Conner said that he asked Ellis how much he had to drink, and Ellis responded, “two beers.” Ellis told Patrolman Conner that he was coming from Tu-nica, Mississippi, where he had been duck hunting since early that morning. Patrolman Conner asked Ellis to exit the vehicle and move to the rear of the vehicle, which Ellis had no trouble doing. Patrolman Conner said at the arrest he observed that Ellis’s eyes were glassy; his pupils were dilated; and there was a very strong odor of alcoholic beverage coming from him. Patrolman Conner said he saw an empty Bud Light bottle on the back floorboard and a bottle of Dr. Tischner’s in the vehicle.

¶ 8. During Ellis’s testimony, he admitted that he was drinking and driving. He said that after he was stopped the trooper asked him if he had been drinking, and he responded, “Yes, sir.” Ellis said that Patrolman Conner asked him how many drinks, and Ellis said, “Well, a few.” Patrolman Conner testified that Ellis told him that he had a six pack of Bud Light and that he had consumed two of those beers while driving between Tunica and Vaiden, Mississippi, near where he was stopped. He testified, “I was drinking a beer going down the road. I admit to that.” Earlier in the day at the duck hunt, he testified that he had “sipped” a “little concoction.” Ellis said he also had drunk “a couple of beers” as he and his other hunting partners were “riding the levee” in Tunica.

¶ 9. After Ellis admitted that he had been drinking, Patrolman Conner administered the portable breath machine, and Ellis tested positive for alcohol. Patrolman Conner then placed Ellis under arrest, cuffed him, and took him to the Carroll/Montgomery Jail in Vaiden. At the jail, Ellis refused to take a field sobriety test and refused an Intoxilyzer 8000 test. At the jail, Ellis told Patrolman Conner again that he had “a few beers.” After refusing the Intoxilyzer, Ellis sat on a bench at the jail. Patrolman Conner said he made it a point to look Ellis directly in the eyes while he sat there and that he observed Ellis’s dilated pupils.

¶ 10. Patrolman Conner ticketed Ellis for careless driving and driving under the influence of intoxicating liquor, first offense. Ellis contested the charges in the Carroll County Justice Court, which found him guilty on both offenses.

¶ 11. He appealed to the Circuit Court of Carroll County, which conducted a trial de novo. Only Patrolman Conner and Ellis testified at the circuit court trial. After the State rested its case, the circuit judge granted the motion for a directed verdict as to the careless-driving charge. However, the circuit judge found Ellis guilty of the DUI, first offense. In doing so he pointed out that Ellis himself had admitted he was drinking and driving. The arresting officer reported that when he stopped Ellis there was a smell of alcohol about him; his eyes were glassy and his pupils were dilated; and Ellis admitted that earlier in the day he had been drinking alcohol. Further the circuit judge found that the portable breath test conducted at the stop tested was positive for alcohol. Finally, the circuit judge said Ellis refused to take the Intoxilyzer test.

¶ 12. The circuit judge sentenced Ellis to forty-eight hours in jail, which the judge suspended, and ordered Ellis to pay a fine of $800 and $832.50 in costs and assessments. He also ordered that Ellis complete the Mississippi Alcohol Safety Education Program.

¶ 13. The circuit court denied Ellis’s motion to reconsider the verdict and his motion for a new trial. This appeal followed.

ANALYSIS

I. DESTRUCTION OF EVIDENCE

¶ 14. Ellis’s first argument on appeal is that he was denied due process of law by the circuit court for failing to direct a verdict of acquittal in Ellis’s favor because the prosecution failed to preserve the trooper’s videotape of the traffic stop. Ellis contends that if he were able to offer the memory card into evidence, it would show Ellis’s condition at the time of the stop and lead to a not-guilty verdict.

¶ 15. On February 2, 2009, Ellis’s attorney sent a letter to Patrolman Conner citing Mississippi Code Annotated section 63-11-15 (Rev.2004) and requesting eight items, one of which was “the video, if any, taken by the officer of the test or tests.” By the time of the circuit court trial, Ellis had converted this request for any video of alcohol testing by the officer to mean the trooper’s memory card of Ellis’s traffic stop. Patrolman Conner did not supply the memory card to Ellis. Patrolman Conner testified that if there was nothing “extraordinary about the stop and nothing goes on,” he does not keep the memory card of each traffic stop. Patrolman Conner said there was no requirement that he keep the card of each stop and that he routinely erased the memory card in order to record future stops. He stated: “When it fills up, you’ve got to get rid of it where you can video your future stops.”

¶ 16. Ellis cites Harness v. State, No. 2007-CT-01415-SCT, 2010 WL 2106027 (Miss. May 27, 2010) for the proposition that destruction of evidence in a DUI case denies a defendant his constitutional due-process rights and must lead to a reversal of the judgment.

¶ 17. First, we must point out that the May 27, 2010 supreme court opinion in Harness was withdrawn by that court and superseded on rehearing by Harness v. State, 58 So.3d 1 (Miss.2011) which completely changed the ruling of the supreme court.

¶ 18. The 2011 Harness opinion sets out Mississippi law concerning whether a defendant’s due-process rights have been violated when physical evidence has been destroyed by the State. Because Harness is not final, as it awaits a decision on the pro se motion for rehearing, we will quote the cases that the Mississippi Supreme Court' used to make its decision. “A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) (citing Brady v. Mary land, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). In Trombetta, a two-part test was developed for determining whether a defendant’s due-process rights are violated in situations where physical evidence has been destroyed. First, the “evidence must possess an exculpatory value that was apparent before the evidence was destroyed.” Id. at 489, 104 S.Ct. 2528. Secondly, the evidence must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. A bad-faith factor to the Trombetta test was added in Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). There the United States Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. 333.

¶ 19. What has developed then is a three-part test to use when determining if a due-process violation has occurred when physical evidence has been destroyed. In order to prevail on his due-process claim, Ellis first must show that the digital memory card had exculpatory value that was apparent before it was erased. Secondly, he must show that he would be unable to reasonably obtain comparable evidence; and thirdly, Ellis must show that the State acted in bad faith by destroying the memory card.

¶ 20. We will not discuss the first two prongs of the test, although we doubt that the memory card had apparent exculpatory value prior to its erasure. Patrolman Conner testified that the digital camera did not activate until he turned on his blue flashing lights to initiate the actual stop. It would not have shown any actions like the way Ellis was driving prior to the stop. It might have shown the actual stop. However, any exculpatory value of the events following the stop is significantly reduced by Ellis’s own admission that he was drinking and driving and that he had been consuming alcohol earlier in the day at the duck hunt and that he refused the field sobriety test and the Intoxilyzer test. However, we focus instead on the third factor, that the State acted in bad faith by destroying the memory card. We can find no bad faith on the part of the State in the destruction of the card.

¶ 21. Ellis’s attorney sent the trooper a letter requesting “the video, if any, taken by the officer of the test or tests.” However, by this time the memory card had been erased. Patrolman Conner explained that the card was erased through the normal process used by the trooper of erasing and recording over the digital camera’s memory card. Ellis said that unless he determines that there is something unusual about a stop, he simply records over each memory card. He further testified that there was no rule or regulation which required him as a trooper to preserve every memory card of traffic stops. He did not destroy the card of Ellis’s traffic stop to circumvent its disclosure. In failing to preserve the card for Ellis, Patrolman Conner was acting “in good faith and in accord with [his] normal practice.” Trombetta 467 U.S. at 488, 104 S.Ct. 2528 (quoting Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961)). Further there is no evidence in the record of any “allegation of official animus towards [the defendant] or of a conscious effort to suppress” the memory card. Id.

¶ 22. We find that Ellis fails to meet the third prong of the Trombetta test, that is, that the memory card was destroyed in bad faith by Patrolman Conner. Instead, the card was simply erased as the trooper sought space for recording his next traffic stop.

¶ 23. Thus, we find this issue is without merit.

II. SUPPRESSION OF EVIDENCE OBTAINED DURING THE TRAFFIC STOP

¶ 24. In his second issue, Ellis argues that because the circuit court acquitted him of careless driving, which was the basis for initiating the traffic stop, the circuit court erred in admitting all evidence obtained after the traffic stop.

¶ 25. However, Ellis’s argument is not the current state of the law on this issue. In Harrison v. State, 800 So.2d 1134, 1135 (¶ 3) (Miss.2001), the supreme court dealt with a case where officers testified that they based their stop of Billy Harrison on the belief that Harrison was in violation of the posted speed limit. Harrison was stopped after officers believed he was driving between 67-70 miles per hour in a 60-mile-per-hour construction zone. Id. Once stopped, the officers found 117 pounds of marijuana in a duffle bag inside the trunk of Harrison’s car. Id. at (¶ 5). He was convicted of possession with intent to distribute more than one kilogram of marijuana. It was later developed that there were no workers present in the construction zone, which is a statutory requirement for the violation for which Harrison was stopped. Harrison argued that the marijuana was seized as a result of an unlawful stop not based upon probable cause; thus, any evidence gained during that stop should not be allowed into evidence. Accordingly, Harrison argued that his conviction should be overturned.

¶ 26. The supreme court found that “[i]n essence, the stop was based on a mistake of law.” Id. at 1138 (¶ 19). But the supreme court found that such a mistake of law by an arresting officer did not necessarily mean that the evidence must be suppressed. “The United States Supreme Court has stated that the ‘decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.’ ” Id. at (¶ 18) (quoting Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). The supreme court held that further inquiry was needed because the question of probable cause does not turn upon an ultimate finding of guilt of the offense for which one was stopped. Instead, the supreme court said that the test for probable cause in Mississippi is “the totality of the circumstances.” Id. (citing Haddox v. State, 636 So.2d 1229, 1235 (Miss.1994)). The supreme court went on to explain that probable cause has been described as:

a practical, nontechnical concept, based upon the conventional consideration of every day life on which reasonable prudent men, not legal technicians act. It arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Id. (quoting Conway v. State, 397 So.2d 1095, 1098 (Miss.1980)).

1127. Here Patrolman Conner based his stop upon the belief that Ellis was driving erratically. This belief was based upon a report from a truck driver who had observed Ellis’s vehicle driving in a manner which led the trucker to ask for the assistance of the patrolman. Further, once behind Ellis, Patrolman Conner observed Ellis cross -from the fog line to the center line at which point Conner turned on his blue lights to make the stop. The supreme court has recognized that “given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest.” Singletary v. State, 318 So.2d 873, 876 (Miss.1975). Such an investigative stop may be made as long as the patrolman has “a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony.” McCray v. State, 486 So.2d 1247, 1249 (Miss.1986) (quoting United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). Patrolman Conner stopped Ellis’s vehicle after receiving a call from a trucker driving behind Ellis who had asked the highway patrolman for assistance. Patrolman Conner followed behind Ellis and observed him drive his SUV across the center line. Reasoning that he needed to stop the SUV to protect the safety of other drivers, he did so. We agree with the circuit court that under the totality of the circumstances, Patrolman Conner had probable cause to stop Ellis’s vehicle. Thus, we find this issue is without merit.

III. SUFFICIENCY AND WEIGHT OF THE EVIDENCE

¶ 28. In his final issue, Ellis argues that the evidence was insufficient to support the verdict, and the verdict is against the overwhelming weight of the evidence.

¶ 29. In considering whether the evidence is legally sufficient, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Bush v. State, 895 So.2d 836, 843-44 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The key inquiry is “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. If the evidence against the defendant is such that “reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” we will deem the evidence sufficient. Id.

¶ 30. Ellis was convicted under Mississippi Code Annotated section 63 — 11— 30(l)(a) (Rev.2004), which makes it “unlawful for any person to drive or otherwise operate a vehicle within this state who ... is under the influence of intoxicating liquors.” Section 63 — 11—30(l)(a) is commonly referred to as “common law DUI.” Gilpatrick v. State, 991 So.2d 130, 133 (¶ 18) (Miss.2008). “Common law DUI is proven when a defendant’s blood alcohol results are unavailable or the defendant’s BAC tests under the legal limit, but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol.” Id. (citing Leuer v. City of Flowood, 744 So.2d 266, 268 (¶ 7) (Miss.1999)).

¶ 31. We now turn to the evidence supporting Ellis’s conviction. First and foremost is Ellis’s admission that he was drinking and driving. Ellis testified that he had a six pack of Bud Light in his vehicle when he was stopped and that he had consumed two of those beers while driving “between Tunica and Vaiden.” He also admitted to having drunk liquor and beer earlier in the day at a duck hunt. Ellis himself testified that after he was stopped, Patrolman Conner asked him if he had been drinking; and he responded, “Yes, sir.” Ellis said that Patrolman Conner asked him how much, and Ellis responded, “Well, a few.” Patrolman Conner then administered the portable breath machine, which registered positive for alcohol. Patrolman Conner testified that he smelled a strong odor of alcoholic beverage coming from Ellis when he stopped him; he observed that Ellis’s eyes were glassy; and his pupils were dilated. Patrolman Conner testified that at the jail he observed that Ellis’s pupils were still dilated. Ellis refused the field sobriety test and the Intoxilyzer 8000 test. “If a person under arrest refuses to submit to a chemical test under the provisions of this chapter, evidence of refusal shall be admissible in any criminal action under this chapter.” Miss. Code Ann. § 63-11^1 (Rev.2004). This Court has found that evidence of a defendant’s refusal to submit to a Breathalyzer test is relevant and admissible under Mississippi Rule of Evidence 402. Knight v. State, 14 So.3d 76, 80 (¶ 12) (Miss.Ct.App. 2009); see Starkey v. State, 941 So.2d 899 (Miss.Ct.App.2006) (holding that the trial court’s admittance of the defendant’s refusal to submit to the Intoxilyzer was not a violation of either the defendant’s state or federal constitutional right against self-incrimination).

¶ 32. We find that the above-outlined evidence serves as a sufficient basis for the fact-finder to conclude beyond a reasonable doubt that Ellis committed the act charged, and he did so under such circumstances that every element of the offense existed. Thus, we find that this assignment of error is without merit.

¶ 33. THE JUDGMENT OF THE CIRCUIT COURT OF CARROLL COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR, FIRST OFFENSE, AND SENTENCE OF FORTY-EIGHT HOURS IN JAIL SUSPENDED AND TO PAY AN $800 FINE AND COSTS AND ASSESSMENTS IN THE AMOUNT OF $332.50 AND TO ATTEND THE MISSISSIPPI ALCOHOL SAFETY EDUCATION PROGRAM IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P JJ., MYERS, BARNES AND ISHEE, JJ., CONCUR. CARLTONAND MAXWELL, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . The fog line is the edge of the legally drivable portion of a roadway.

      . Throughout the trial and in the briefs, the parties refer to the result of the recording device as a videotape. However, the way Patrolman Conner described the use of a memory card, we believe that the device was a digital camera. Therefore, we will substitute memory card for videotape.

      . The section provides: "Upon the written request of the person tested, or his attorney, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him or to his attorney.” Miss.Code Ann. § 63-11-15.

      .At the time of this opinion, a motion for rehearing filed pro se by Harness was pending.


source: Caselaw Access Project

author: IRVING, P.J.,

license: Public Domain

text:
    VILLAS OF WINDSONG, LTD., and its General Partner Arbor Properties, Inc., Arbor Properties, LLC and Arbor Place II, LLC, Appellants v. RGT/CHARLESTON PARTNERS, LTD., by and Through its General Partner, FORD DEVELOPMENT CORP., Appellee.
    No. 2010-CA-00134-COA.
    Court of Appeals of Mississippi.
    June 28, 2011.
    Rehearing Denied Oct. 4, 2011.
    Certiorari Denied Jan. 19, 2012.

      Virgil G. Gillespie, Gulfport, Donna Brown Jacobs, Mark A. Dreher, Ridge-land, attorneys for appellants.
    M. Brant Pettis, Jonathan P. Dyal, Gulf-port, attorneys for appellee.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of a real-estate contract between Villas of Wind-song, Ltd. and RGT/Charleston Partners, Ltd. The Harrison County Circuit Court granted summary judgment in favor of RGT. Feeling aggrieved, Villas of Wind-song appeals and asserts that: the contract requires that judgment be entered in its favor; all the provisions of the contract merged into the deed and were extinguished at the closing; and genuine issues of material fact should have precluded the granting of summary judgment in favor of RGT.

¶ 2. We find that a separate agreement, as called for in the contract, was never entered into and that the provisions of the contract were extinguished when the deed was executed. Therefore, we reverse and render the circuit court’s judgment.

FACTS

¶ 3. In 2004, RGT entered into a contract with Arbor Properties, Inc. to purchase a piece of real estate in Harrison County, Mississippi. Shortly thereafter, Arbor Properties transferred its interest in the contract to Villas of Windsong, which closed the transaction in October 2004. At the time of closing, permits had been obtained for construction of 240 mul-ti-family apartment units on the property.

¶ 4. In 2008, the City of Biloxi, Mississippi, issued building permits for 88 more apartment units on the property. On July 22, 2008, RGT filed a complaint against Villas of Windsong, demanding an additional $403,333.04 on the basis of Paragraph 22 of the contract. Paragraph 22 reads, in its entirety:

22. ADDITIONAL MULTI-FAMILY UNITS. At or prior to [e]losing, Seller and Purchaser shall enter into an agreement whereby if Purchaser (or Purchaser’s assigns) obtains approval by the City to build more than 240 multi-family units on the [pjroperty, then, within thirty (30) days of obtaining said approval, Purchaser (or Purchaser’s assigns) shall pay to Seller an amount equal to $4,583.33 times the number of said units in excess of 240.

Despite Paragraph 22, which clearly reads that the parties were supposed to enter into an agreement “[a]t or prior to [c]losing,” a separate agreement regarding additional units was never entered into by the parties.

¶ 5. On June 17, 2009, RGT filed a motion for summary judgment. The motion alleged that it was “undisputed that the [ajgreement was entered between the parties, that 88 units above 240 units have subsequently been approved for construction on the property[,] and that [Villas of] Windsong [has] not paid RGT the stipulated amount in the [a]greement for the additional units.” The memorandum that accompanied the motion stated that: “it is undisputed that RGT and [Villas of] Wind-song entered into the [a]greement and explicitly expressed their intent regarding their obligations in the event the City of Biloxi approved the construction of additional units.... ” The memorandum also acknowledged: “[Villas of Windsong] will likely argue that a separate contract outlining the very same terms that are expressed in Paragraph 22 ... was contemplated, and that since a separate contract was not entered[,] the provisions of Paragraph 22 are now somehow unenforceable.” The memorandum then argued that the contract did not require a separate written agreement and that Villas of Wind-song should not be able to use the fact that there was no separate agreement to evade its obligations to RGT.

¶ 6. Gordon Thames Jr., the owner of Villas of Windsong, filed an affidavit in opposition to RGT’s motion for summary judgment. In it, Thames averred the following in pertinent part:

After Hurricane Katrina[,][an] investigation began to determine if portions of Parcel 5 ... could be used for apartment purposes. This process eventually led to mitigating 4.89 acres and demuck-ing and filling the same at a cost of $698,421.52.... The Plaintiffs were furnished an itemized accounting for all these expenses showing that in order to make this property available for additional apartment construction, the sum of $698,421.52 was paid to make the property suitable. The property purchased from RGT was not suitable for such 88 units until this sum was expended to make it so.
* * *
At one of the City[’s] meetings seeking approval of the number of units, ... the Seller’s Agent ... told the City that we would like to put 252 units on the property. Due to the extensive amount of wetlands on the property, the requirements of the City Code in Biloxi, parking constraints, etc., this was not possible. Only 240 units were eventually allowed. It was because we were led to believe [that] more units may be possible that Paragraph 22 was put in the Contract. Since the approval was for only 240, Paragraph 22 never came into fruition.
The City of Biloxi did, on March 4, 2008, issue Pelzer Homes, my building firm, permits to build 88 additional units, but only after $698,421.52 was spent to mitigate wetlands, demuck, fill[,] and otherwise prepare said property and make it suitable for such use.
The [contract entered into in 2004 called for an [a]greement to be entered into regarding additional units. Such [ajgreement was not entered into. No request was made of Arbor Properties, Inc. or Windsong to enter [into] such [a]greement,- and such [paragraph (Paragraph 22) was not addressed in any of the four [a]mendments to the [contract.

¶ 7. Villas of Windsong filed its own memorandum in opposition to RGT’s motion for summary judgment. In the memorandum, Villas of Windsong argued that “the purpose of this paragraph was to give the Seller an opportunity to insist on an amendment to the [c]ontract if, prior to closing, the City of Biloxi gave approval for more than 240 units to be built on the property.” Villas of Windsong also argued that Paragraph 22 was inherently ambiguous and that the circuit court should, therefore, use extrinsic evidence in interpreting the contract. Specifically, Villas of Windsong urged the circuit court to consider Thames’s affidavit in considering the motion for summary judgment. Villas of Windsong further noted that if the paragraph were viewed as a contract to enter into an agreement, the statute of limitations would have run on RGT’s claim on October 29, 2007; RGT filed its lawsuit in 2008.

¶ 8. In December 2009, the circuit court issued a judgment containing findings of fact and conclusions of law regarding RGT’s motion for summary judgment. That judgment stated, in pertinent part, the following:

On March 4, 2008, [Villas of Windsong] received approval from the City of Biloxi for the construction of 88 units in addition to the 240 units previously approved for the property.
Subsequent to the approval of additional units, [RGT] requested from [Villas of Windsong] the additional 403,383.04 ($4,583.33 x 88 units) pursuant to Paragraph 22 of the contract. After [Villas of Windsong] failed to pay, [RGT] filed a complaint on July 22, 2008, and alleged breach of contract. [RGT] now moves for summary judgment.
Despite [Villas of Windsong’s] assertion to the contrary, Paragraph 22 does not require a separate written agreement. Instead, Paragraph 22 simply states [that] the parties “shall enter into an agreement.” “A stipulation to reduce a valid written contract to some other form does not affect its validity, and the stipulation may not be used by either of the parties for the purpose of ... evading performance of any of the provisions of the contract.” Busching v. Griffin, 542 So.2d 860, 868 (Miss.1989). [Villas of Windsong] should not be able to evade payment under Paragraph 22 under the guise that a separate written agreement was required.
[Villas of Windsong] next argue[s that] the merger doctrine applies. Under the merger doctrine, previous negotiations or contracts are merged into a deed of conveyance. Knight v. McCain, 531 So.2d 590, 595 (Miss.1988). However, in Knight, the court adopted the majority rule and found [that] collateral or independent agreements, which are to be performed subsequent to the conveyance, are not merged into the deed of conveyance. Id. at 595-96. Under Paragraph 9 of the contract, [RGT] was responsible for obtaining the necessary zoning approvals from the City of Biloxi for the construction of the initial 240 units. [RGT] was also responsible for obtaining the necessary wetlands permits for the construction of the initial 240 units. However, under Paragraph 22, [Villas of Windsong was] required to obtain approval for the construction of additional units on the property following transfer. Thus, the obligation of [Villas of Windsong] under Paragraph 22 is separate and collateral from the obligations of [RGT] prior to closing on the property and is distinguishable from the provisions of the contract regarding title, possession^] and quantity of land being transferred.
[Villas of Windsong] next arguefs that] the statute of limitations has expired on Plaintiffs claim of breach of contract. Specifically, [Villas of Windsong asserts that] the deeds of trust were executed on October 29, 2004, and therefore expired on October 29, 2007, prior to the [c]omplaint being filed in this matter. However, the alleged breach of contract did not occur until March 2008. The [c]omplaint in this matter was filed July 22, 2008, well within the applicable three years. Thus, the statute of limitations has not expired.
[Villas of Windsong] last argue[s that] “a travesty of justice would occur if [Villas of Windsong was] required to pay for additional units after they paid almost $700,000 to mitigate and make the property suitable for the additional units.” Payment under Paragraph 22 applies when [Villas of Windsong] obtain[s] the necessary approval from the City of Biloxi to build additional units on the property. Any construction costs or costs associated with the approval are irrelevant to the issue before the [c]ourt.

Having so found, the circuit court granted summary judgment in favor of RGT.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 10. The standard of review for decisions concerning summary judgment is well established: summary judgment “should be granted only when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” State ex rel. Hood v. Louisville Tire Ctr., Inc., 55 So.3d 1068, 1072 (¶ 9) (Miss.2011) (quoting M.R.C.P. 56(c)). When reviewing a circuit court’s grant of summary judgment, we review the record de novo, “in the light most favorable to the nonmoving party.” Id. (citing Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 364 (¶ 11) (Miss.2004)).

¶ 11. When reviewing a contract, an appellate court employs a de novo standard of review. Cherokee Ins. Co. v. Babin, 37 So.3d 45, 48 (¶ 8) (Miss.2010). An appellate court “first look[s] to the express wording of the contract itself, looking at the contract as a whole, to the exclusion of extrinsic or parol evidence.” Id. (citing Warwick v. Gautier Util. Dist., 738 So.2d 212, 215 (¶ 8) (Miss.1999)). Only if the parties’ intent is unclear from the express wording of the contract will we consider the “ ‘canons’ of contract construction.” Id. (quoting HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1105(26) (Miss.2003)). If the contract remains ambiguous after applying the canons, we will consider extrinsic evidence. Id.

¶ 12. Paragraph 22 states, in its entirety:

22. ADDITIONAL MULTI-FAMILY UNITS. At or prior to [cjlosing, Seller and Purchaser shall enter into an agreement whereby if Purchaser (or Purchaser’s assigns) obtains approval by the City to build more than 240 multi-family units on the [property, then, within thirty (30) days of obtaining said approval, Purchaser (or Purchaser’s assigns) shall pay to Seller an amount equal to $4,583.33 times the number of said units in excess of 240.

RGT claims that this paragraph constituted a binding agreement that was immediately and automatically executed at closing. However, this reading of the paragraph renders some of the provision’s terms obsolete. In general, “[w]hen construing a contract, [an appellate court] will read the contract as a whole, so as to give effect to all of its clauses.” One S., Inc. v. Hollowell, 963 So.2d 1156, 1162 (¶ 10) (Miss.2007) (quoting Facilities, Inc. v. Rogers-Usry Chevrolet, Inc., 908 So.2d 107, 111 (¶10) (Miss.2005)).

¶ 13. In order to give effect to all of the paragraph’s clauses, RGT’s interpretation cannot be accepted. The paragraph clearly states that RGT and Villas of Windsong would enter into an agreement “[a]t or prior to [c]losing.” If RGT’s interpretation of this provision were correct, the contract would have been worded: “At closing, the parties agree....” The paragraph, as written, clearly contemplates the entry of a separate agreement (“shall enter into an agreement”) that either party could compel prior to or at closing. Neither party invoked the provision by the time of closing; in fact, neither party ever attempted to enter into an agreement whereby Villas of Windsong would pay RGT more upon the approval of additional units.

¶ 14. Given the explicit language of the contract, we find that the circuit court erred in granting summary judgment on behalf of RGT. A separate agreement was contemplated by the contract, but never actually entered into by the parties. Although there is no doubt that RGT could have compelled Villas of Windsong to enter into such an agreement at or prior to closing, it did not do so at that time.

¶ 15. Accordingly, we reverse and render the circuit court’s judgment. Our disposition of this issue renders Villas of Windsong’s remaining issues moot.

¶ 16. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

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

      . A variety of Arbor corporations have been involved in this case at different times; to the best of this Court’s knowledge, all of these corporations are related and are owned by a single entity.

      . The complaint was filed against both Villas of Windsong and Arbor Properties, although Arbor Properties had already transferred its interest in the property to Villas of Windsong. In 2007, Villas of Windsong deeded the property to Arbor Place.


author: LEE, C.J.,

text:
    Charlie TAYLOR, Appellant v. Emmitt L. SPARKMAN, et al., Appellees.
    No. 2010-CP-00648-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    Rehearing Denied Jan. 17, 2012.
    Charlie Taylor, appellant, pro se.
    Office of the Attorney General by R. Stewart Smith Jr., attorney for appellees.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Charlie Taylor is an inmate incarcerated within the Mississippi Department of Corrections (MDOC). Taylor filed a motion to show cause in the Sunflower County Circuit Court seeking judicial review of several decisions of the Administrative Remedy Program (ARP). Taylor had filed several complaints in the MDOC’s ARP, all of which were concluded via a Third Step Response. These Third Step Response forms indicated that Taylor had thirty days in which to seek judicial review. Taylor received his latest response form on November 24, 2009. According to Taylor, he filed his motion to show cause within thirty days after receiving this latest response form, and it also appears that Taylor failed to pay the required filing fee. The record indicates that Taylor’s motion to show cause was filed on February 5, 2010, well after the thirty days had elapsed.

¶ 2. The trial court determined that Taylor had failed to file his request for judicial review within the thirty days as required by Mississippi Code Annotated section 47-5-807 (Rev.2004). The trial court then dismissed Taylor’s motion as time-barred.

DISCUSSION

¶ 3. Pursuant to section 47-5-807, Taylor’s right to appeal a final decision of the MDOC under ARP must be asserted within thirty days after receipt of the final decision. Taylor failed to do so. “Filing within the statutorily-mandated time is jurisdictional.” Stanley v. Turner, 846 So.2d 279, 282 (1111) (Miss.Ct.App.2003). We conclude that Taylor’s motion for relief was not timely filed, and the trial court did not have jurisdiction. Accordingly, we affirm the trial court’s dismissal.

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

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.


author: MYERS, J„

text:
    Michael KUKOR, Appellant v. NORTHEAST TREE SERVICE, INC., Liberty Mutual Insurance Company, Jay’s Service Company and First Comp Insurance Company, Appellees. Michael Kukor, Appellant v. Northeast Tree Service, Inc., Liberty Mutual Insurance Company, Jay’s Service Company and First Comp Insurance Company, Appellees.
    Nos. 2010-WC-01280-COA, 2007-WC-01783-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Rehearing Denied Oct. 11, 2011.
    Certiorari Denied Jan. 26, 2012.

      John Hunter Stevens, Jackson, for appellant.
    William Bienville Skipper, James M. Anderson, Ridgeland, Ashley Pradel, for appellees.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   MYERS, J„

for the Court:

¶ 1. Michael Kukor was seriously injured when he fell trimming a tree in the course of his employment. It was not disputed that the injury was compensable; the issues before the Workers’ Compensation Commission were the extent of Kukor’s resulting disability and whether the two businesses he worked for at the time of the injury were one employer for the purposes of the workers’ compensation statute. The Commission found that Kukor was working only for Northeast Tree Service at the time of his injury and that Northeast and Jay’s Service Company were not one employer. It also rejected Kukor’s contention that he was permanently, totally disabled, finding he had suffered only a 75% loss of earning capacity. Kukor contests these findings on appeal. The circuit court affirmed, and we likewise affirm that judgment.

FACTS

¶ 2. Kukor worked for two businesses owned and operated by Jim Albritton, Northeast and Jay’s. Northeast is a limited liability company, while Jay’s is a sole proprietorship. Albritton managed both companies. Northeast’s business was cutting and trimming trees, while Jay’s performed stump and debris removal services. Both businesses sometimes worked separately, but often they worked on the same job site together.

¶ 3. Northeast employed four or five tree trimmers, who also often worked for Jay’s. Jay’s employed about sixteen other workers, who never worked for Northeast. If both companies were working at the same job site, Northeast’s tree trimmers would work for Jay’s if there was not enough tree trimming work. Often jobs did not require all of Northeast’s tree trimmers; Albritton would allow them to work on the ground for Jay’s. If a trimmer cut trees before working on the ground, Albritton considered him to be working for Northeast while trimming trees and working for Jay’s afterwards. The two companies had separate payrolls and separate workers’ compensation insurers. An employee who worked for both companies had to execute separate job applications and withholding documents. Albritton admitted that he operated two businesses in part because a tree trimming company’s employees could only be insured through the assigned risk pool, which has very high workers’ compensation premiums.

¶ 4. Kukor testified that he had applied for a job with Northeast. He was hired, and his job duties included trimming trees and miscellaneous work on the ground. Kukor received checks from both Northeast and Jay’s, earning the same hourly wage from each. He testified that he initially believed he worked for Northeast and did not understand why he had received checks from two different companies. Most of Kukor’s hours came from Jay’s.

¶ 5. On May 23, 2003, Kukor fell while repelling down a tree. After about a year, he attempted to return to work at a light-duty position with Jay’s, but Kukor testified he was unable to handle the work. He filed petition to controvert, contending that Jay’s and Northeast were one employer and that he was permanently, totally disabled by his injuries. The administrative judge agreed with Kukor’s contentions, but the Commission did not. Kukor initially appealed from the Commission’s decision reversing the administrative judge’s order, but we dismissed that appeal as interlocutory because the Commission had remanded the case to the administrative judge for further findings regarding Kukor’s weekly wage with Northeast. Kukor v. Ne. Tree Serv., Inc., 992 So.2d 1242 (Miss.Ct.App.2008). On remand, those findings were made, and Kukor again appeals.

STANDARD OF REVIEW

¶ 6. The Commission’s decision is afforded great deference by Mississippi courts. We will reverse the Commission’s rulings only where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision is arbitrary and capricious. Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1225 (Miss.1997).

¶ 7. Substantial evidence, though not easily defined, has been said to be “such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991). Substantial means more than a “mere scintilla” of evidence that does not rise to the level of a preponderance of the evidence; the record must afford “a substantial basis of fact from which the fact in issue can be reasonably inferred.” Id. We will not hesitate to reverse a decision of the Commission that is not supported by substantial evidence. Foamex Prods., Inc. v. Simons, 822 So.2d 1050, 1053 (¶ 11) (Miss.Ct.App.2002).

¶ 8. As to questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990). Nonetheless, we will not interfere with the Commission’s application of the law unless it is found to be clearly erroneous. Duke ex rel. Duke v. Parker Hannifin Corp., 925 So.2d 893, 896 (¶ 11) (Miss.Ct.App.2005).

DISCUSSION

1. Alter Ego; Joint Employment

¶ 9. The average weekly wage prior to injury is used to determine compensation for an injured worker’s lost earnings. Miss.Code Ann. § 71-3-31 (Rev.2000). This wage calculation is “determined from the earnings of the injured employee in the employment in which he was working at the time of the injury....” Id. Compensation is limited to what the claimant earned “in the job in which he was working at the time of his injury.” Tripp v. Orkin Amusement, Inc., 437 So.2d 1013, 1013 (Miss.1983). Nonetheless, we have held that the weekly wage includes all wages from the employer, regardless of whether the employee nominally holds more than one position with that employer. Piney Woods Country Life Sch. v. Young, 946 So.2d 805, 809-10 (¶ 17) (Miss.Ct.App.2006).

¶ 10. The Commission determined that Kukor was working only for Northeast at the time of his injury; consequently, it used his average weekly wage from only that company to determine the amount of his benefits. As Kukor earned more from Jay’s, including those wages would result in a substantial increase in his benefits.

¶ 11. Kukor makes several arguments in support of this issue. He first contends that Jay’s and Northeast are “alter egos” of each other, essentially that they are the same company. Liberty Mut. Ins. Co. v. Holliman, 765 So.2d 564 (Miss.Ct.App.2000). In Holliman, we held:

In determining whether these two corporations were one and the same, the Commission looked at the factors outlined in Smith v. St. Regis Corp., 850 F.Supp. 1296, 1311 (S.D.Miss.1994). These factors included “same management, same business purpose, same operation, same equipment, same customers, same supervision, and same ownership.” Id. The Commission further looked for “such a unity of interest and ownership” between the alleged separate entities that “adherence to the fiction of separate corporate existence would under the circumstances sanction a fraud or promote injustice.” FMC Finance Corp. v. Murphree, 632 F.2d 413, 422 (5th Cir.1980). The Commission analyzed these factors and found that the alleged two entities had a unity of interest and/or ownership, and they, in fact, did not operate separately.

Id. at 570 (¶ 14).

¶ 12. Kukor contends that Jay’s is an “illegal” sham company created by Albrit-ton to reduce his workers’ compensation costs. He focuses on the fact that both businesses were owned and operated by Albritton. Both operated out of Albrit-ton’s home office and used the same phone number. Employees for both businesses would meet at Albritton’s home, where he would personally hand out work assignments to each employee. All of the equipment was owned by Albritton, and some of it was shared between the businesses. Al-britton admitted that Jay’s sometimes worked as a “subcontractor” to other businesses such as builders and landscapers; this included Northeast. Because Northeast’s tree trimming business often did residential work, it advertised heavily to the public. Jay’s, on the other hand, primarily did commercial work which was advertised by word of mouth. Despite this explanation, Northeast advertised stump removal, a job that would be done by Jay’s. Albritton would also sometimes quote residential customers one price for tree cutting and debris removal. Kukor also points to the fact that after his injury, Albritton sent him a letter on Northeast letterhead offering him a light-duty position with Jay’s. Additionally, Albritton paid Kukor for lost wages with Jay’s for about one year after the accident.

¶ 13. The Commission addressed this argument, rejecting Kukor’s alter ego theory. It noted that both Northeast and Jay’s were owned and operated by Albrit-ton. It found, however, that Albritton had “gone to great lengths to separate [them]” and that his “reasons for operating two businesses that compliment one another are, insofar as we can tell, legal, legitimate, and understandable.” The Commission noted that the “businesses had separate insurers, different names, and different areas of expertise.”

¶ 14. The Commission’s decision on this issue is a factual finding, entitled to great deference on appeal. We are required to affirm even if this Court, as the fact-finder, would have reached the opposite conclusion. Clark v. Spherion Corp., 11 So.3d 774, 777 (¶ 13) (Miss.Ct.App.2009) (citations omitted). We may interfere only when the Commission’s factual findings are found to be unsupported by substantial evidence. Id.

¶ 15. It is true, as Kukor argues, that Albritton owned and managed the two companies. However, that is only one factor in the analysis. As the Commission noted, Northeast and Jay’s have distinct, if complimentary, business purposes. There is a clear demarcation between the activities of the two businesses. The Commission considered the relevant factors; the question of what weight to assign each factor is within its discretion as the finder of fact. We therefore find substantial evidence supporting the Commission’s decision that Northeast and Jay’s are not alter egos of the same company.

¶ 16. We also reject Kukor’s contention that this is a case of “dual employment” or “joint service.” This refers to a situation where the employee is in the service of two employers “in relation to the same act.” Goolsby Trucking Co., Inc. v. Alexander, 982 So.2d 1013, 1026 (¶ 35) (Miss.Ct.App. 2008). Kukor fell while trimming a tree, which fits squarely within the activities of Northeast. There is no question that he was in its service alone at the time of the injury.

¶ 17. Finally, Kukor argues that the result is simply unfair, and that it encourages an employer to use part-time workers in dangerous jobs to reduce their potential compensation for lost wages. The Mississippi Supreme Court addressed the same argument in Sullivan v. City of Okolona, 370 So.2d 921 (Miss.1979). Sullivan served as a volunteer firefighter, a part-time position for which he received only nominal compensation. He was injured in that capacity and was unable to work his regular employment. He received essentially no compensation for lost wages, however, because under the statute the benefit for lost wages was derived from his salary as a volunteer firefighter. The supreme court held:

At the time of [Sullivan’s] injury, he was in the employment of the City of Okolo-na as a volunteer fireman, and it is on this basis that his compensation must be determined since he does not fall within any exceptions to the statute.

Id. at 924. It reasoned:

Although the result in this case is harsh, we are of the opinion that the statute provides no solution that would be just and fair to all parties and that the problem can only be corrected by legislation so that the employee, employer!,] and carrier will know their rights and liabilities thereunder.

Id.

¶ 18. This issue is without merit,

2. Extent of Disability

¶ 19. Next, Kukor contends that the Commission erred in finding he had suffered only a 75% loss of earning capacity. He contends that the evidence can only support a finding of total disability.

¶ 20. Kukor suffered back and wrist injuries in his fall. He reached maximum medical improvement on the wrist injuries about three months later, with a 15% impairment rating to his right wrist and an 18% impairment rating to his left wrist. Kukor was also diagnosed with a “very subtle compression fracture of the lower thoracic spine,” which left him with a 5% physical impairment rating to the body as a whole, as well as restrictions to lifting thirty pounds and against repetitive bending, twisting, or stooping. Kukor could not return to his pre-injury employment as a tree trimmer and testified that he had not been able to find work with his limitations.

¶ 21. On appeal, Kukor focuses on his inability to secure employment after a lengthy job search. Kukor testified that he submitted more than one hundred applications but did not receive a single job offer. He contends that his physical impairments and limited education — Kukor completed only the tenth grade — render him totally and permanently disabled. He also points to his own testimony regarding the continuing pain he suffers from his injuries.

¶ 22. Disability is the “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or other employment, which incapacity and the extent thereof must be supported by medical findings.” Miss.Code Ann. § Yl — 8—3(i) (Rev.2000).

¶ 28. The Commission found:

Reviewing the evidence as a whole, it becomes clear that while [Kukor] has sustained a significant loss of wage earning capacity, the proof falls shy of permanent and total disability.
It should be noted that [Kukor] was initially released to return to light duty work and a light duty job was offered to him by Jay’s Service Company. [Kukor] reported for work for one day and then did not return. [He] is fairly young at age of [thirty-six] and retains the ability and experience to return to employment in a variety of jobs in the medium to light category. It should be apparent then that the claimant retains some capacity to earn wages[.]

¶ 24. While Kukor was unable to return to his previous work trimming trees, he was offered a light-duty position with Jay’s, primarily driving a dump truck. Kukor testified that the driving hurt his back; however, Albritton testified that Ku-kor had quit without speaking to him and that he would have tried to adapt the position to further accommodate Kukor’s restrictions.

¶ 25. The Commission must evaluate the evidence as a whole to determine loss of wage-earning capacity. Guardian Fiberglass, Inc. v. LeSueur, 751 So.2d 1201, 1205 (¶ 10) (Miss.Ct.App.1999). There was significant evidence Kukor was otherwise employable within his restrictions. The Commission based its conclusions on Kukor’s medical records and the testimony of Pete Mills, a vocational expert. Mills testified that based on his age, work history, and impairments, Kukor was employable and was capable of earning up to approximately eight dollars per hour. Mills identified a variety of positions Ku-kor could hold. Mills also expressed concern that Kukor may have failed in his job search because he had attached copies of his medical records to the applications. Mills also contacted some of the prospective employers, several of which had no record of Kukor’s application.

¶ 26. Having reviewed the record, we find the Commission’s finding on the extent of Kukor’s loss of wage-earning capacity is supported by substantial evidence. This issue is without merit.

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

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

      . Kukor asserts that Jay’s is an "illegal” company, apparently because it is not incorporated. He provides no support for this contention. According to the record. Jay’s is a sole proprietorship.

      . Albritton voluntarily paid Kukor an additional $271 per week after the injury, the approximate additional benefit Kukor would have received if his wages from Jay’s had been included in computing his workers' compensation benefits for lost wages. Albrit-ton stopped paying this extra compensation after Kukor attempted to return to work, about one year after his injury.


author: MAXWELL, J„ LEE, C.J.,

text:
    Jimmy McNABB, Appellant v. L.T. LAND & GRAVEL, LLC, Appellee.
    No. 2010-CA-01503-COA.
    Court of Appeals of Mississippi.
    Oct. 11, 2011.
    Rehearing Denied Jan. 17, 2012.

      Garland D. Upton, attorney for appellant.
    Donovan McComb, Columbia, attorney for appellee.
   MAXWELL, J„

for the Court:

¶ 1. L.T. Land and Gravel, LLC (L.T. Land) sued Jimmy McNabb for misrepresentation. L.T. Land alleged it paid McNabb $8,000 for a 1984 Mack truck, based on McNabb’s claim he had rebuilt the lower half of the engine — an engine L.T. Land quickly learned required a complete overhaul. After a bench trial, the Marion County Circuit Court denied the misrepresentation claim, finding L.T. Land failed to prove McNabb’s representations about his repairs were untrue. But the circuit court awarded L.T. Land $8,461.08 solely based on its finding that McNabb breached the implied warranty of fitness for a particular purpose. We find this specific warranty theory was neither plead nor tried by implied consent under Mississippi Rule of Civil Procedure 15(b). And, even if it had been, we find the evidence does not support the circuit court’s finding McNabb was in breach. We reverse the $8,461.08 award to L.T. Land and render judgment in favor of McNabb.

FACTS AND PROCEDURAL HISTORY

¶ 2. Edward Lee owns L.T. Land, a timber company that also sells real estate and gravel. McNabb is a recently retired diesel mechanic with almost forty-years experience. McNabb had performed mechanic work for Lee in the past.

¶ 3. McNabb rebuilt the lower half of the engine of a 1984 Mack truck and then put it up for sale. On September 28, 2008, Lee learned the truck was for sale and contacted McNabb. Lee told McNabb he intended to use the truck to haul lumber and gravel. McNabb told Lee about the repairs he made to the lower half of the engine and how, since it was rebuilt, he had only used the truck once to haul a dozer forty miles. Lee bought the truck for $8,000.

¶ 4. Over the next five days, L.T. Land used the truck ten times to haul timber. L.T. Land employees testified they could smell burning oil and see smoke emanating from the truck. They had to fill the truck with oil constantly, adding a total of eight- and-a-half gallons to keep the oil tank full. On October 1, 2008, Lee told McNabb about the smoke and the oil. McNabb responded the engine was still “breaking in” and to keep driving the truck. But the smoking and the need for oil only got worse. Lee took the truck to a repair shop, which charged L.T. Land $461.08. The repair-shop owner testified the truck was running badly when Lee brought it in and needed a complete overhaul.

¶ 5. On March 25, 2009, L.T. Land sued McNabb seeking damages for misrepresentation. Both parties agreed to try the case without a jury. The circuit judge appointed a special master to hear the case. Lee testified the purpose of buying the truck “was to pull timber off my job to the mills.” When asked if this purpose was evident to McNabb, Lee responded, “Oh, by all means, yes, sir.” Lee further testified he bought the truck based on McNabb “telling [him] that he had done the bottom half, and the engine was ready to go, didn’t have but 40 miles on it.” Because McNabb had done work for L.T. Land before, Lee “just felt safe about it.” McNabb was asked if he was “aware of the particular purpose for this truck that Mr. Lee was going to use it for was to haul timber, correct?” He responded, “Well, not altogether. He told me he may haul gravel with it and may haul some timber.” There was no testimony that Lee specifically requested McNabb select a truck fit for either of these particular purposes.

¶ 6. Though the case was tried on the misrepresentation claim, in its closing argument, L.T. Land argued for the first time the implied warranty of merchantability and the implied warranty of fitness of a particular purpose applied to the sale of the truck.

¶ 7. The special master recommended the circuit court deny L.T. Land’s misrepresentation claim because L.T. Land failed to prove what McNabb told him was not true. The special master noted L.T. Land’s complaint sought recovery based solely on misrepresentation and did not allege breach of implied warranties. But the special master reasoned that because McNabb did not object to evidence about Lee’s reliance on McNabb’s experience to purchase the truck and McNabb’s knowledge of the purpose for buying the truck, under Mississippi Rule of Civil Procedure 15(b), McNabb had impliedly consented to try the implied-warranty claims in addition to the misrepresentation claim.

¶ 8. The special master rejected L.T. Land’s implied-warranty-of-merchantability claim because this warranty only applied to “merchants” and McNabb did not meet the statutory definition of a “merchant.” Miss.Code Ann. §§ 75-2-104(1) (Supp.2011), 75-2-814 (Rev.2002). But the special master concluded McNabb had breached the implied warranty of fitness because: (1) Lee had told McNabb that L.T. Land was purchasing the truck to haul timber; (2) Lee relied on McNabb’s experience and representation that the lower half of the engine had been rebuilt and used only once to haul a dozer; and (3) the truck had extensive engine damage.

¶ 9. Over McNabb’s objection, the circuit court adopted the special master’s report. It found, by failing to object to L.T. Land’s breach-of-warranty evidence, McNabb impliedly consented to amend the complaint. It further found McNabb breached the implied warranty of fitness for a particular purpose. The circuit court awarded L.T. Land the cost of the truck plus the cost of repair, $8,461.08 total.

LAW AND DISCUSSION

¶ 10. The only basis for the circuit court’s award was its finding that L.T. Land breached the implied warranty of fitness for a particular purpose. This specific warranty theory was not pled. Nor was it tried by implied consent under Rule 15(b).

I. The Complaint

¶ 11. The complaint alleged: (1) L.T. Land bought the truck relying on McNabb’s “promise he had rebuilt the bottom half of the engine”; (2) after only fourteen loads, “the engine failed”; (3) upon investigation, “it was determined that the bottom half of the engine had NOT been rebuilt as claimed”; (4) McNabb made false statements and material misrepresentations that induced L.T. [Land] to purchase the Mack truck in question”; and (5) “[a]s a direct and proximate cause of [McNabb’s] false statements and material misrepresentations, L.T. [Land] spent $8,000.00 for the truck and has spent additional funds in garage and mechanics’ fees.”

¶ 12. The circuit court correctly held “the Complaint in this matter did not include a claim for breach of implied warranty.” We recognize that under Rule 8 of the Mississippi Rules of Civil Procedure, L.T. Land did not have to use the magic words “implied warranty of fitness for a particular purpose.” Scott v. City of Goodman, 997 So.2d 270, 276 (¶ 14) (Miss.Ct.App.2008) (citing Smith v. Smith, 607 So.2d 122, 127 (Miss.1992)). But “[e]ven under the liberal pleading requirements of Rule 8(a) of the Mississippi Rules of Civil Procedure, a plaintiff must set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Id. (quoting Penn Nat’l Gaming, Inc. v. Ratliff, 954 So.2d 427, 482 (¶ 11) (Miss.2007)). The elements of breach of implied warranty of fitness for a particular purpose are: (1) actual or constructive knowledge by the seller of the buyer particular purpose for purchasing the goods, (2) reliance by the buyer on the seller’s skill or judgment to select suitable goods, and (3) the good’s unfitness for the particular purpose. Moss v. Batesville Casket Co., 935 So.2d 393, 399 (¶ 20) (Miss. 2006) (citing Garner v. S & S Livestock Dealers, Inc., 248 So.2d 783, 785 (Miss.1971)). The dissent finds the allegations in the complaint sufficiently formed the basis of a claim for breach of implied warranty of fitness for a particular purpose. But no where in L.T. Land’s complaint does it reference L.T. Land’s stated purpose for purchasing the truck, McNabb’s knowledge of this purpose, McNabb’s selection of a suitable truck, L.T. Land’s reliance on McNabb’s selection, or that the truck was particularly, as opposed to generally, unfit for the intended purpose. Thus, even under our relaxed notice-pleading standards, McNabb’s complaint did not plead breach of this implied warranty.

II. Rule 15(b) Amendment

¶ 13. Though the complaint contained no implied warranty claims, the circuit court, relying on Rule 15(b) treated the claim of the implied-warranty of fitness for a particular purpose as if it had been pled based on L.T. Land’s questions at trial. Rule 15(b) permits trial courts to treat issues not pled but nonetheless tried “by expressed or implied consent of the parties” as if they had been raised in the pleadings. M.R.C.P. 15(b). “The purpose of the rule is to allow the course of the trial, rather than the formal pleadings, to control the outcome.” Flannery v. Carroll, 676 F.2d 126, 131 (5th Cir.1982) (applying the almost-identical Federal Rule of Civil Procedure 15(b)). Because McNabb failed to object to questions about L.T. Land’s stated purpose for buying the truck and its reliance on McNabb’s experience, the circuit court reasoned McNabb impliedly consented to the issues of the truck’s fitness for a particular purpose.

¶ 14. But implied consent “depends upon whether the parties recognize that a new issue was being litigated at trial.” McCarty v. Kellum, 667 So.2d 1277, 1283 (Miss.1995) (quoting Setser v. Piazza, 644 So.2d 1211, 1217 (Miss.1994)). “If a party fails to object because he does not recognize the significance of the evidence introduced, ... he cannot be said to have consented impliedly to the trial of the unpleaded issues suggested by it.” Shipley v. Ferguson, 638 So.2d 1295, 1800 (Miss.1994) (quoting Crawford v. Glenns, Inc., 876 F.2d 507, 513 (5th Cir.1989)). “[Ijnability to comprehend the significance of the evidence must be reasonable in the circumstances presented.” Id. “For example, implied consent is not found where evidence introduced is relevant to a pleaded issue and the nonobjecting party has no notice that the evidence is intended to raise a new unpleaded issue into the case.” Id. (finding no implied consent to try un-pled tax-exemption issue because evidence about tax exemption was relevant to the pled issue of child support); see also Cox v. S.B. Thomas Trust, 755 So.2d 52, 56-57 (¶¶ 15-16) (Miss.Ct.App.1999) (finding no implied consent to try unpled employer credit in worker’s compensation case because failure to object to questions about credit was reasonable under the circumstances).

¶ 15. Under the circumstances, we find it was reasonable for McNabb not to object to questions about McNabb’s knowledge of L.T. Land’s purpose of purchasing the truck and L.T. Land’s reliance. To prove misrepresentation, L.T. Land had the burden to show reasonable reliance on McNabb’s statements that he overhauled the engine and used the truck once to haul a dozer. See Horace Mann Life Ins. Co. v. Nunaley, 960 So.2d 455, 461 (¶ 20) (Miss.2007) (listing elements of negligent misrepresentation). We find the evidence about L.T. Land’s purpose for purchasing the truck to haul gravel and timber and reliance on McNabb’s statements about the work he had done to the truck and how the truck had been used since were relevant to L.T. Land’s misrepresentation claims. Accordingly, L.T. Land’s questions did not sufficiently notify McNabb that L.T. Land intended to introduce un-pled implied-warranty claims.

¶ 16. The warranty claims only became cognizable during L.T. Land’s closing argument, when L.T. Land, for the first time, expressly sought damages based on the implied warranties of merchantability and of fitness for a particular purpose. “But counsel’s closing argument is not evidence.” Berry v. Patten, 51 So.3d 934, 941 (¶ 31) (Miss.2010). Therefore, closing argument cannot form the basis for Rule 15(b) implied consent. See Deere & Co. v. Johnson, 271 F.3d 613, 621-23 (5th Cir.2001) (finding Rule 15(b) amendment after close of trial was abuse of discretion, which violated due process by denying the other side an opportunity to present a defense); see also Am. Nat’l Bank of Jacksonville v. Fed. Deposit Ins. Corp., 710 F.2d 1528, 1539 n. 13 (11th Cir.1983) (noting that raising an issue in closing argument is not proof of implied consent as other party never had an opportunity to present evidence on this issue).

¶ 17. McNabb reasonably failed to recognize L.T. Land’s introduction of unpled implied-warranty claims. Thus, it was error to construe his failure to object to certain questions about L.T. Land’s purpose for purchasing the truck as implied consent to try additional warranty claims. We find the circuit court abused its discretion when it considered L.T. Land’s unpled warranty claims under Rule 15(b) and based its $8,461.08 judgment on an implied warranty of fitness for a particular purpose.

III. Breach of the Implied Warranty of Fitness for a Particular Purpose

¶ 18. Even had L.T. Land pled breach of the implied warranty of fitness for a particular purpose, we find the circuit court erred in finding this warranty arose and was breached.

¶ 19. The implied warranty of fitness for a particular purpose is codified in Mississippi Code Annotated section 75-2-815 (Rev.2002), which provides in part:

Except as otherwise provided in this section, where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.

Because the circuit court was the fact-finder, its judgment is binding “if supported by substantial evidence and not manifestly wrong.” Patel v. Telerent Leasing Corp., 574 So.2d 3, 6 (Miss.1990) (citations omitted); see Nelson v. City of Horn Lake ex rel. Bd. of Aldermen, 968 So.2d 938, 942 (¶ 11) (Miss.2007) (defining “substantial evidence” as “such relevant evidence as reasonable minds might accept as adequate to support a conclusion or ... more than a ‘mere scintilla’ of evidence”).

¶ 20. Unlike the warranty of merchantability, a seller does not have to be a “merchant” to be subject to the implied warranty of fitness for a particular purpose. Miss.Code Ann. § 73-2-315; Lacy v. Morrison, 906 So.2d 126, 131 (¶ 14) (Miss.Ct.App.2004). For L.T. Land to recover under the theory of implied warranty of fitness for a particular purpose, the evidence must have been sufficient for the special master to find (1) McNabb, at the time of the contracting, had reason to know the particular purpose for which the goods were required; (2) the reliance by L.T. Land as buyer upon the skill or judgment of McNabb to select suitable goods, and (3) the goods were unfit for the particular purpose. Moss, 935 So.2d at 399 (¶ 20).

¶ 21. There is substantial evidence that McNabb had reason to know why L.T. Land was purchasing the truck — to haul timber and gravel. But substantial evidence does not support that L.T. Land specifically relied on McNabb to select a suitable truck for these intended purposes. “The warranty of fitness for a particular purpose involves selection, and to recover under this implied warranty, there must be some relationship between the reason the goods are unfit and the type or kind of goods selected for the particular purpose.” Garner, 248 So.2d at 785. Without selection by the seller, the implied warranty of fitness for a particular purpose does not arise. Moss, 935 So.2d at 399-400 (¶ 20) (quoting Garner, 248 So.2d at 785) (“The warranty of fitness for a particular purpose does not arise unless there is reliance on the seller by the buyer, and the seller selects goods which are unfit for the particular purpose.”).

¶ 22. In Gamer, because the plaintiff had not relied upon the selection by the seller, the Mississippi Supreme Court affirmed the post-trial dismissal of plaintiffs claim, finding:

The evidence did not justify the submission of this ease to the jury on the issue of warranty of fitness for a particular purpose. There is nothing in the evidence to show that the plaintiff relied upon the defendant to select either the kind of pigs, the size of pigs, or the particular individual pigs to be purchased. The facts conclusively show that out of a pen of about thirty pigs the plaintiff made his own selection.

Garner, 248 So.2d at 785 (emphasis added).

¶ 23. The contrasting principle is emphasized in R. Clinton Const. Co. v. Bryant & Reaves, Inc., 442 F.Supp. 838, 845-46 (N.D.Miss.1977). In that case, the seller’s selection of the unfit goods led to its breach of the implied warranty of fitness for a particular purpose:

Clinton, as plaintiff-buyer, after designating the quality of antifreeze desired, left selection of the particular goods to the defendant-seller, in reliance on the latter’s skill and judgment facts of which the defendant was well aware, and concerning which defendant interposed neither disclaimer nor exclusionary limitation. Here, defendant proceeded to select a supplier of antifreeze to fill Clinton’s order therefor, and the material provided by defendant’s selection, adulterated by 1.24% Chloride solution, was unfit for the particular purpose of which defendant was aware at the time the sales agreement was made.

(Emphasis added). See also Massey-Ferguson v. Evans, 406 So.2d 15 (Miss.1981) (implied warranty of fitness for a particular purpose arose where farm-equipment provider told purchaser, who admittedly had never farmed before, what equipment to purchase).

¶ 24. Here, there is no indication of selection by McNabb. Lee testified that he bought the Mack truck because: (1) McNabb told him he rebuilt the lower half of the engine; (2) the rebuilt engine hauled a dozer forty miles; (3) McNabb had done work for Lee before; and (4) he “felt safe” about it. Although this testimony supports Lee’s reliance on McNabb’s skills as a mechanic, it does not show McNabb “selected” or furnished the particular Mack truck upon learning L.T. Land needed a truck to haul timber.

¶ 25. In Lacy, the buyer of a used truck, Lacy, argued the seller, Morrison, breached the implied warranty of fitness for a particular purpose. Lacy, 906 So.2d at 130-31 (¶ 13). Lacy told Morrison that he intended to use the truck to haul a horse trailer. Morrison, “in spite of knowing that the truck was not mechanically sound, assured him ‘that the vehicle had a new transmission and that it would be perfect for towing.’ ” Id. The Mississippi Supreme Court rejected Lacy’s argument. It found there was no breach of the implied warranty of fitness, because there was no evidence Morrison selected or assisted in selecting a truck unfit for pulling a horse trailer. Id. at 131 (¶ 15). Instead, the evidence showed “that Lacy was in apparent need of [a] truck to pull a horse trailer, and being a used car dealer, he knew what type of truck would satisfy that need. Upon discovering that Morrison owned such type of truck, Lacy contacted him to discuss purchasing it.” Id. at (¶ 16). Because Lacy “clearly purchased Morrison’s truck on his own initiative,” the supreme court found Lacy could not have relied on Morrison’s skill or judgment. Id. at (¶ 17). Without such reliance, no warranty of fitness for a particular purpose arose. Id.; see also Garner, 248 So.2d at 785 (no implied warranty of fitness for a particular purpose arose where the buyer made his own selection).

¶ 26. L.T. Land’s purchase is analogous to Lacy’s. Like Lacy, Lee took the initiative to purchase the one used truck McNabb had for sale. Lee did not ask McNabb to select for L.T. Land or even rebuild a used Mack truck to haul timber. Lee, who testified he owned eight diesel trucks in the past, bought the Mack truck for L.T. Land because he “felt safe” the truck would work — not because McNabb told him it was the type of diesel truck L.T. Land would need to haul timber.

¶ 27. With respect to the dissent, we find there is no substantial evidence of the type of reliance on selection necessary for the implied warranty of fitness for a particular purpose to arise. Thus, the circuit court erred by awarding L.T. Land $8,461.08 based on a breach of this implied warranty.

CONCLUSION

¶ 28. L.T. Land’s implied warranty claims were not properly before the circuit court. L.T. Land neither pled nor obtained McNabb’s implied consent to try these issues. Further, the evidence did not support a finding that McNabb breached the implied warranty of fitness for a particular purpose. With no other avenues of recovery raised on appeal, we reverse the judgment against McNabb for $8,461.08 and render judgment in his favor.

¶ 29. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION. CARLTON, J„ NOT PARTICIPATING.

LEE, C.J.,

dissenting:

¶ 30. I respectfully dissent as I would affirm the judgment of the trial court. The majority finds that L.T. Land and Gravel cannot recover damages based on breach of implied warranty of fitness for a particular purpose because it was not specifically pled in the complaint. However, Mississippi is a notice-pleadings state, and I cannot find such specificity was necessary.

¶ 31. Mississippi Rule of Civil Procedure 8(a)(1) states that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief....” The comment to Rule 8 goes on to say:

The purpose of Rule 8 is to give notice, not to state facts and narrow the issues as was the purpose of pleadings in prior Mississippi practice.... Although Rule 8 abolishes many technical requirements of pleadings, it does not eliminate the necessity of stating circumstances, occurrences, and events which support the proffered claim.... The rule allows the claims to be stated in general terms so that the rights of the client are not lost by poor drafting skills of counsel.

¶ 32. The complaint states that “L.T. [Land] purchased the vehicle in question relying upon Defendant’s promise that he had rebuilt the bottom half of the engine.” The complaint also states: “In the course of making only 14 loads on a 10 mile haul, L.T. [Land] had to put 8 gallons of oil in the engine. Despite putting this oil in the engine, the engine failed.” Finally, the complaint states that L.T. Land would not have purchased the truck but for McNabb’s misrepresentations that the truck was in good working order. The facts presented in the complaint were sufficient to form the basis of a claim for breach of implied warranty of fitness for a particular purpose. Mississippi Code Annotated section 75-2-316 (Rev.2002) states in part:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.

¶ 33. Even if the complaint failed to provide notice of the claim, the questioning throughout the trial dealt with whether McNabb knew of the intended use of the truck, the intended purpose of the truck, and L.T. Land’s reliance on McNabb’s knowledge. Mississippi Rule of Civil Procedure 15(b) allows for amendment of the pleadings to conform to the evidence. I would find that the issue of implied warranty of fitness for a particular purpose was tried by implied consent. McNabb failed to object to Edward Lee’s testimony about his purpose for purchasing the truck and his reliance on McNabb’s experience.

¶ 34. The majority finds that McNabb did not impliedly consent to a claim based on breach of implied warranty by failing to object. The majority finds that the questioning during trial was relevant to L.T. Land’s misrepresentation claim; thus, McNabb had no reason to object. Further, although L.T. Land specifically raised the issue of warranty of fitness for a particular purpose in closing argument, the majority finds this was too late since closing arguments cannot form the basis for Rule 15(b) implied consent. The majority cites American National Bank of Jacksonville v. Federal Deposit Ins. Corp., 710 F.2d 1528, 1539 n. 13 (11th Cir.1983), for the proposition that raising an issue in closing argument is not proof of implied consent as the other party is denied the opportunity to present evidence on this issue. However, in American National Bank, the issue raised in closing was statute of limitations. Id. The Eleventh Circuit Court of Appeals found no implied consent because the case was tried on the validity of an escrow agreement. Id. No evidence regarding statute of limitations was raised until closing argument. The case here is distinguishable. The actual words “warranty for fitness of a particular purpose” were not used until closing argument by L.T. Land, but evidence of breach of implied warranty of fitness for a particular purpose was put on throughout the trial. McNabb’s attorney chose to waive closing argument. While statements made in closing are not evidence, I find this irrelevant as the evidence of this claim had already been presented. As stated above, Mississippi is a notice-pleadings state. McNabb was given a chance to respond and rebut evidence of any claims made by L.T. Land during trial. Therefore, I would affirm the decision of the trial court and uphold the judgment in favor of L.T. Land.

      . Because L.T. Land did not cross-appeal this decision, the denial of the misrepresentation claims is not before this court for review.

      . L.T. Land did not cross-appeal this decision. Therefore, like the misrepresentation claim, the denial of this claim is not before this court for review.


author: ROBERTS, J., RUSSELL, J.,

text:
    Anthony J. HUDSON, Appellant v. JONES COUNTY BOARD OF SUPERVISORS, Appellee.
    No. 2010-CP-01307-COA.
    Court of Appeals of Mississippi.
    Oct. 18, 2011.
    Rehearing Denied Jan. 17, 2012.

      Anthony J. Hudson, appellant, pro se.
    M. Wayne Thompson, attorney for ap-pellee.

      Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from the Jones County Board of Supervisors’ (the Board) decision to relocate the Jones County Department of Human Services (DHS) from Laurel, Mississippi, to Ellisville, Mississippi. Anthony J. Hudson appealed the Board’s decision to the Jones County Circuit Court. The Board filed a motion to dismiss Hudson’s appeal. Within its motion, the Board argued that Hudson lacked standing to challenge the Board’s decision. The circuit court granted the Board’s motion and dismissed Hudson’s appeal. Aggrieved, Hudson appeals.

STANDARD OF REVIEW

¶ 2. A review of a circuit court’s decision to grant a motion to dismiss under Mississippi Rule of Civil Procedure 12(b)(6) raises an issue of law, which requires a de novo review. Burgess v. City of Gulfport, 814 So.2d 149, 151-52 (¶ 9) (Miss.2002). 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 doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Id.

ANALYSIS

¶ 3. Hudson claims the circuit court erred when it granted the Board’s motion to dismiss. Hudson argues that he had standing to challenge the Board’s decision because he receives Supplemental Nutrition Assistance Program (SNAP) benefits. Hudson also claims he has standing to challenge the Board’s decision because he is defending the interest “of the unwed mothers, the elderly, the low[-]income [citizens,] and disabled [citizens].”

¶ 4. “Mississippi’s standing requirements are quite liberal.” Burgess, 814 So.2d at 152 (¶ 13). “[F]ederal courts adhere to a stringent definition of standing, limited by Article] 3, [section] 2 of the United States Constitution to a review of actual cases and controversies, [but] the Mississippi Constitution contains no such restrictive language. Therefore, [the Mississippi Supreme Court] has been ‘more permissive in granting standing to parties who seek review of governmental actions.’ ” Id. (quoting State v. Quitman County, 807 So.2d 401, 405 (¶ 11) (Miss.2001)).

¶ 5. “In Mississippi, parties have standing to sue when they assert a color-able interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.” Burgess, 814 So.2d at 152-53 (¶ 13) (citation and quotation omitted). “ ‘[C]olorable,’ when used to describe a claim or action, means ‘appearing to be true, valid, or right.’ ” Hall v. City of Ridgeland, 37 So.3d 25, 33 n. 6 (Miss.2010) (quoting Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 827 n. 13 (Miss.2009)).

¶ 6. “[T]o establish standing on grounds of experiencing an adverse effect from the conduct of the defendant/appel-lee, the adverse effect experienced must be different from the adverse effect experienced by the general public.” Id. at 33-34 (¶ 24). Hudson does not claim to own any property at or nearby the prospective sites of the county DHS office in either Laurel or Ellisville. Hudson would simply prefer that the Board locate the county DHS office in Laurel instead of Ellisville. Essentially, Hudson argues he has standing to challenge the Board’s decision because he receives SNAP benefits and because he represents the interests of “the unwed mothers, the elderly, the low[-]income [citizens,] and disabled [citizens].” Regarding his representation of single mothers, elderly citizens, low-income citizens, and disabled citizens, Hudson is not an attorney. Although it is a noble sentiment, it is factually incorrect to characterize Hudson as representing people who fit within those categories. Hudson represents himself and no one else. It is unclear why Hudson finds the location of the county DHS office in Ellisville to be an adverse effect — perhaps it will require additional travel time or greater travel expense — but the adverse effect of placing the county DHS office in Ellisville as opposed to Laurel is certainly the same adverse effect that any recipient of SNAP benefits who lives in Laurel. Consequently, that adverse effect must be considered to be the same adverse effect that would be experienced by members of the general public who happen to live in Laurel and receive assistance from the county DHS office.

¶ 7. Taking the allegations in Hudson’s appeal to the circuit court to be true, it is beyond doubt that Hudson will not be able to establish any adverse effect other than that experienced by a member of the general public regarding the Board’s decision to locate the county DHS office in Ellis-ville. Accordingly, we find that the circuit court was correct when it granted the Board’s motion to dismiss. It follows that we find no merit to Hudson’s appeal. Because Hudson lacked standing to challenge the Board’s decision, any other issues on appeal are rendered moot. Therefore, we affirm the judgment of the circuit court.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, CARLTON AND MAXWELL, JJ., CONCUR. RUSSELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY IRVING, P.J.

RUSSELL, J.,

dissenting:

¶ 9.1 respectfully dissent because SNAP recipients are a distinguishable class of individuals and, therefore, cannot be considered the “general public” for purposes of standing in this case.

¶ 10. The term “public” is defined as a noun as “[t]he people of a nation or community as a whole.” Black’s Law Dictionary 579 (Bd Pocket ed.2006). The term “public” is defined as an adjective as “[r]elating or belonging to an entire community, state, or nation[,]” and “[o]pen or available for all to use, share, or enjoy.” Black’s Law Dictionary 579 (3d Pocket ed.2006). In this case, SNAP recipients, like recipients of welfare, food stamps, and social-security benefits, cannot be considered the “general public” because by definition, only certain individuals receive these benefits. Moreover, the whole community of Laurel does not receive SNAP benefits. Therefore, the majority’s conclusion that “the adverse effect of placing the county DHS office in Ellisville as opposed to Laurel is certainly the same adverse effect [of] any recipient of SNAP benefits who lives in Laurel[,][and][c]onsequently, that adverse effect must be considered to be the same adverse effect that would be experienced by members of the general public who happen to live in Laurel” is incorrect.

¶ 11. While it is true that all people who live in Laurel are members of the general public, it does not logically follow that all people living in Laurel receive SNAP benefits. Indeed, the people living in Laurel who do not receive SNAP benefits will not experience an adverse effect at all. For these reasons, I would find that Hudson, as a SNAP recipient, cannot be considered merely a member of the general public. See Hall v. City of Ridgeland, 37 So.3d 25, 34 (¶ 24) (Miss.2010) (noting that “the adverse effect experienced must be different from the adverse effect experienced by the general public” to have standing).

¶ 12. Additionally, since Hudson is a low-income SNAP recipient, he does not need to represent anyone other than himself to have standing in this case. At a minimum, Hudson would personally suffer an adverse effect due to the further distance he would be required to travel to the new DHS office location and an increased expense. In my view, this would be a sufficient “colorable interest in the subject matter of the litigation.” See id. at 33 (¶ 24) n. 6 (noting that “ ‘[cjolorable,’ when used to describe a claim or action, means ‘appearing to be true, valid, or right.’ ”).

¶ 13. Accordingly, I would find that Hudson has standing to bring his claim.

IRVING, P.J., JOINS THIS OPINION.