author: GRIFFIS, J.,

text:
    Jesse Qualls STIGLER, III, Appellant, v. Lisa Elaine STIGLER, Appellee.
    No. 2008-CA-00813-COA.
    Court of Appeals of Mississippi.
    Oct. 13, 2009.
    Rehearing Denied Aug. 24, 2010.
    Certiorari Denied Dec. 2, 2010.

      John Robert White, Ridgeland, attorney for appellant.

      Jerry Wesley Hisaw, Southaven, attorney for appellee.
    Before KING, C.J., GRIFFIS and MAXWELL, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Jesse Qualls Stigler III (“Jay”) appeals an order from the Chancery Court of DeSoto County holding him in contempt of court for the non-payment of child support. Jay claims that the chancellor committed manifest error by (1) invoking the escalation clause in the judgment of divorce, (2) placing Jay in continuous contempt of court by requiring him to pay an unreasonable proportion of his income as child support, (3) miscalculating the interest owed on the unpaid child support, (4) awarding attorney’s fees without an analysis of the McKee factors, (5) failing to state the factual findings used to support a child support award outside of the statutory guidelines, and (6) failing to address the issue of Jay’s request that his obligation to pay for college expenses be predicated on a minimum grade point average. Finding error on the part of the chancellor as to issue three, we affirm in part and reverse and remand in part for further proceedings consistent with this opinion.

FACTS

¶ 2. Jay and Lisa Elaine Stigler (“Lisa”) were divorced on December 5,1994. They have two children, Jesse Qualls Stigler IV (“Jesse”) and Bailey Amanda Stigler (“Bailey”). At the time this appeal was filed, Jesse was twenty-one years old, and Bailey was seventeen years old.

¶ 3. In their divorce, Lisa was granted custody of the children. Lisa and Jay entered into an agreed property settlement and child support order. The order addressed Jay’s obligation to pay child support as follows:

The [Hjusband shall pay child support to the wife in the amount of $1,300.00 per month beginning January 1, 1997, and due and payable the first day of each month thereafter. During this calendar year and each calendar year hereafter should [the] Husband’s bonus place the aggregate of [the] Husband’s adjusted gross income in excess of the minimum guidelines for child support in effect in the State of Mississippi, the Husband shall pay that amount necessary to bring his child support payments $3,600.00 in excess of the minimum amount of child support as provided by the guidelines then [in] effect for the State of Mississippi based on the Husband’s annual income for that year.

¶ 4. On June 17, 2002, Lisa brought her first petition for modification and motion to enforce judgment. Lisa asked the chancellor to enforce the escalation clause by adding $3,600 to Jay’s yearly child support payments. An agreed order was entered in which Jay agreed to provide an automobile for Jesse in exchange for Lisa’s agreement not to pursue unpaid child support from Jay for the years since the divorce through 2001. The escalation clause was not addressed in the order.

¶ 5. On September 6, 2007, Lisa filed a petition for contempt seeking unpaid child support for the years 2002 through 2006. She again requested that the escalation clause be enforced. Jay filed a counterclaim requesting that the chancellor modify his monthly child support obligation due to a substantial decrease in Jay’s salary.

¶ 6. The chancellor found that the escalation clause was enforceable and awarded Lisa $39,713.28 in unpaid child support, interest, and attorney’s fees. Further, the chancellor found a material change in circumstances and reduced Jay’s monthly child support obligation to $690. Jay now appeals from this order.

STANDARD OF REVIEW

¶ 7. “In domestic relations cases, [the appellate court’s] scope of review is limited by the substantial evidence/manifest error rule.” Samples v. Davis, 904 So.2d 1061, 1063-64(¶ 9) (Miss.2004) (citing Jundoosing v. Jundoosing, 826 So.2d 85, 88(¶ 10) (Miss.2002)). “[We] will not disturb the chancellor’s opinion when [it is] supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 1064(¶ 9) (quoting Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996)). Questions of law are reviewed de novo. Amiker v. Drugs for Less, Inc., 796 So.2d 942, 945(¶ 7) (Miss.2000).

ANALYSIS

1. Whether the chancellor committed manifest error by invoking the escalation clause in the judgment of divorce.

¶ 8. Jay argues that there is no clear and convincing evidence of his contempt because the chancellor invoked an escalation clause in the divorce decree that was not specific and had never been previously enforced. He further argues that the escalation clause is void because it is tied only to increases in his adjusted gross income. Lisa responds that the clause is valid because it was agreed to by both parties. She further states that the chancellor correctly interpreted the escalation clause in conformity with the intent of the parties at the time the agreement was entered.

A.Validity of the Escalation Clause

¶ 9. Jay argues that, according to the supreme court’s decision in Tedford v. Dempsey, 437 So.2d 410, 419 (Miss.1983), an escalation clause should be based on the children’s expenses, the parents’ earning capacities, and the annual inflation rate for that clause to be enforceable. While such a suggestion was made in the Tedford decision, this Court has since held that there is a different standard when the parties enter into an agreement. “The parties may in fact agree of their own volition to do more than the law requires of them. Where such a valid agreement is made, it may be enforced just as any other contract.” Rogers v. Rogers, 919 So.2d 184, 189(¶ 19) (Miss.Ct.App.2005) (citing East v. East, 493 So.2d 927, 931-32 (Miss.1986)). Here, Jay and Lisa both agreed to the escalation clause as written; thus, it is a valid clause in their agreement.

B. Enforcement of the Escalation Clause

¶ 10. Jay further contends that the clause is unenforceable because it was not enforced by the chancellor’s order following Lisa’s first contempt action in 2002. In her petition, Lisa did request that the clause be enforced. However, when the parties appeared before the chancellor, Jay was not represented by counsel. The chancellor suggested that Jay obtain counsel before the action proceeded. Instead of following the chancellor’s direction, Jay met with Lisa and her attorney, and an agreed order was entered. Lisa agreed not to pursue the unpaid child support from the time of the divorce through 2001. Jay agreed to pay Lisa’s attorney’s fees. Both parties agreed to give a pickup truck to their son, Jesse.

¶ 11. Neither the chancellor nor the agreed order addressed the issue of the escalation clause. It remained a part of their settlement agreement. As such, we find that the chancellor in this action did not err by enforcing the clause.

C. Interpretation of the Escalation Clause

¶ 12. Jay’s essential argument on appeal is that the clause is ambiguous; therefore, it cannot be the basis of the chancellor’s finding of contempt. We quote the escalation clause at issue:

The [H]usband shall pay child support to the wife in the amount of $1,300.00 per month beginning January 1, 1997, and due and payable the first day of each month thereafter. During this calendar year and each calendar year hereafter should [the] Husband’s bonus place the aggregate of [the] Husband’s adjusted gross income in excess of the minimum guidelines for child support in effect in the State of Mississippi, the Husband shall pay that amount necessary to bring his child support payments $8,600.00 in excess of the minimum amount of child support as provided by the guidelines then [in] effect for the State of Mississippi based on the Husband’s annual income for that year.

¶ 13. Jay primarily claims two crucial ambiguities: (1) the clause contains a condition precedent in that it requires Jay be awarded a bonus to activate the escalation in child support, and (2) the term “minimum guidelines for child support” is ambiguous when read with the child support guidelines in Mississippi Code Annotated section 43-19-101 (Rev.2004). Therefore, the question presented by Jay is whether the escalation clause refers to the minimum income listed in the statute ($5,000) or the percentage of income for two children under the guidelines (twenty percent). Lisa responds that the clause clearly intends for the child support to be calculated by taking Jay’s total adjusted gross income (his salary plus additional compensation), then calculate the statutory amount of child support (twenty percent for the two children), and then add $3,600.

¶ 14. The supreme court stated the following guidance for contract interpretation:

We have delineated a three-tiered process for contract interpretation. First, we look to the “four corners” of the agreement and review the actual language the parties used in their agreement. When the language of the contract is clear or unambiguous, we must effectuate the parties’ intent. However, if the language of the contract is not so clear, we will, if possible, harmonize the provisions in accord with the parties’ apparent intent. Next, if the parties’ intent remains uncertain, we may discre-tionarily employ canons of contract construction. Finally, we may also consider parol or extrinsic evidence if necessary. The three-tiered approach is not a rigid “step-by-step” process. Indeed, overlapping of steps is not inconceivable. We further note that, when examining the contractual provisions of property settlement agreements, special deference is afforded such agreements. As we have stated:
In property and financial matters between the divorcing spouses themselves, there is no question, that absent fraud or overreaching, the parties should be allowed broad latitude. When the parties have reached agreement and the chancery court has approved it, we ought to enforce it and take a dim view of efforts to modify it, as we ordinarily do when persons seek relief from their improvident contracts.

West v. West, 891 So.2d 203, 210-11 (¶¶ 14-15) (Miss.2004) (internal citations and quotations omitted).

¶ 15. In West, the supreme court analyzed a property settlement agreement using this process. Id. at 211(¶ 15). The overall intent of the parties was determined by looking to the “four corners” of the document. Id. at (¶ 16). The husband argued that certain portions of the agreement were ambiguous; however, the supreme court found that the parties’ compliance with the agreement demonstrated their intent. Id. at (¶ 18). The supreme court held: “[hjowever vague, unintelligible, and contrary to his original intent [the husband] may now try to cast the substantive provisions of the property settlement agreement, the extrinsic evidence of his compliance with the provisions for nearly a decade eviscerates this argument of any credibility.” Id. at 211-12(¶ 18).

¶ 16. We agree with Jay that the clause, on its face, is unclear in some respects. However, we find it possible to harmonize the provisions of the clause in accord with Lisa’s and Jay’s intent at the time they entered the agreement. Indeed, we find, as did the chancellor, that the overall intent of the parties by including this clause was to increase child support payments as Jay’s income increased. The parties assumed that Jay’s annual income would be a minimum of $63,000. As initially written, $1,300 per month was more than the statutory guideline of twenty percent of $63,000. However, the parties anticipated that Jay’s income could increase to an amount where $1,300 per month would no longer equal twenty percent of his income. This escalation clause was intended to provide for such a situation.

¶ 17. The clause is poorly worded and fails to comport with the language used in section 43-19-101 — the statutory child support guidelines which the clause seeks to utilize. Especially unclear is what the parties intended by the phrase: “adjusted gross income in excess of the minimum guidelines for child support.” The only minimum adjusted gross income listed in the statute is $5,000, which is clearly inapplicable here as the agreement assumed Jay to have a minimum income of $63,000. Although this portion of the clause is unclear, we are able to deduce its meaning using extrinsic evidence of the parties’ compliance with the agreement.

¶ 18. The intent of the parties is evidenced by their actions during the years in question. The clause is clear that Jay was required to pay Lisa $1,300 per month in child support. By Jay’s own testimony, he paid $1,400 per month during 2002, 2003, and 2004. He also paid more than the required $1,300 per month during 2005 and the first half of 2006. Both Lisa and Jay testified that, at the end of each year, Lisa would calculate the remainder of child support owed by Jay. Lisa did so by calculating twenty percent of Jay’s adjusted gross income. Then, Lisa would subtract what Jay had already paid throughout the year and send Jay the amount due. At that point, the parties would negotiate various credits claimed by Jay for items such as medical bills and insurance on Jesse’s vehicle.

¶ 19. Evidence of the parties’ actions indicates that the intent of the clause was to use the twenty percent guideline for child support for two children. Jay was required to pay Lisa at least $1,300 per month. However, at the end of the year, if his income was large enough such that his payments did not total twenty percent of his income that year, he owed Lisa the difference.

¶20. Jay now claims that he never received a bonus that would trigger the escalation clause; thus, he was only required to pay $1,300 per month. In his testimony before the chancellor, he tried to distinguish the concept of a bonus from the commissions that he received each year. However, this argument is contradictory to his intent as shown by his child support payments. He obviously intended to pay Lisa more than the $1,300 per month because he paid extra each month and participated in the end-of-year calculation, which was done to bring Jay’s child support up to twenty percent of his income for that year. Considering the evidence of Jay’s extra payments, his current argument lacks credibility.

¶ 21. The only portion of the clause that was not applied by the parties was the additional payment of $3,600 per year. While Jay has a valid argument that certain portions of the clause are unclear, this additional payment is in no way ambiguous. We find that the chancellor correctly interpreted the clause in accord with the intent of the parties by (1) calculating Jay’s adjusted gross income, (2) taking twenty percent as annual child support due, (3) adding the additional $3,600, and (4) subtracting the child support already paid by Jay. Accordingly, this issue is without merit.

2. Whether the chancellor committed manifest error by placing Jay in continuous contempt of court.

¶ 22. Jay claims that the chancellor’s order requiring him to pay his child support arrearage in monthly payments of $1,000 failed to consider his living expenses and places him in hopeless, continuous contempt of court. Jay cites the supreme court’s decision in Yelverton v. Yelverton, 961 So.2d 19, 28(¶ 18) (Miss.2007) as support for his argument. However, Yelverton involved an initial award of child support and alimony by the chancellor upon the parties’ divorce. Id. at (¶ 16). There, the chancellor ordered the husband to pay $10,000 per month from his $12,000 monthly income. Id. at (¶ 18). The supreme court found the award per se unreasonable as it gave the wife “approximately $12,118.65 a month, although her monthly expenses totaled only $6,000, and [left the husband] with a negative balance of $4,429 per month.” Id.

¶ 23. Such is not the case here. This is not an initial award ordered at the time of the divorce; instead, it is the repayment of child support arrearage from years in which Jay’s total income rose as high as $172, 516.11. It is true that his income is now significantly lower due to the loss of his high-paying job. However, Jay testified that he has put his house on the market, and he has moved into his fian-cée’s house where he pays no rent, utilities, or expenses. The chancellor considered Jay’s reduction in income and, as a result, significantly lowered Jay’s monthly child support requirement from $1,300 to $690. His monthly payment to Lisa of $1,690 amounts to forty-nine percent of his income, and $1,000 of that payment will terminate once his arrearage has been paid. We find that the chancellor’s award is reasonable under the circumstances. Accordingly, this issue has no merit.

3. Whether the chancellor miscalculated the interest owed on the unpaid child support.

¶ 24. The supreme court has held that a father may receive credit on his unpaid child support “where the father proves by a preponderance of the evidence that he has, in fact, paid the support to the child under circumstances where the support money was used for the child for the purposes contemplated by the support order, that is, to provide shelter, food, clothing and other necessities for the child.” Varner v. Varner, 588 So.2d 428, 435 (Miss.1991). Here, the chancellor found that Jay made direct payments to Lisa for the support of the children. Therefore, Jay was given credit in the amount of $9,057.05.

¶ 25. However, this credit was deducted from Jay’s total amount of arrearage which already included eight percent interest on the unpaid child support. It seems illogical to this Court that the chancellor would find that Jay was entitled to a credit for amounts that were paid to Lisa, yet charge interest on those amounts. Accordingly, we remand this issue for the chancellor to deduct the amount credited to Jay before applying the interest on the total child support arrearage.

¶ 26. We further note that, on remand, the chancellor should correct the calculation of Jay’s child support arrearage for 2004. The additional $8,600 provided for in the escalation clause was inadvertently omitted from the 2004 calculation. While this error was not raised on appeal, “the court may, at its option, notice a plain error not identified or distinctly specified” in a party’s statement of issues. M.R.A.P. 28(a)(3).

J. Whether the chancellor committed manifest error by awarding attorney’s fees without an analysis of the McKee factors.

¶ 27. Jay argues that the chancellor should not have awarded attorney’s fees to Lisa without first conducting an analysis of the factors set forth in McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). An award of attorney’s fees in a divorce action is entrusted to the sound discretion of the chancellor. R.K. v. J.K., 946 So.2d 764, 778(¶ 43) (Miss.2007).

¶ 28. In R.K., the supreme court stated that: “[tjhough this Court has differed previously in its statements as to the mandatory considerations before a trial court awards attorney’s fees, each standard was followed by an indication that the ultimate decision is within the discretion of the trial court.” Id. at 779(¶46). While written findings on the McKee factors is the better practice, the supreme court concluded that “absent an apparent abuse of discretion, this Court will assume the chancellor considered the appropriate factors in awarding attorney’s fees.” Id. As such, we find no abuse of discretion in the chancellor’s determination to award Lisa reasonable attorney’s fees. Accordingly, this issue is without merit.

5. Whether the chancellor committed manifest error by failing to state the factual findings used to support a child support award outside of the statutory guidelines.

¶ 29. Jay claims that the chancellor erred by deviating from the statutory guidelines for child support without making the required findings of fact. Jay is correct that Mississippi Code Annotated section 43-19-101(2) (Rev.2004) requires that any deviation from the guidelines must be supported by specific findings of the chancellor. However, such findings are not required when the child support order is based on the parties’ agreement. See Williams v. Williams, 810 So.2d 613, 614(¶ 7) (Miss.Ct.App.2001) (addressing an agreed modification to child support). Here, Jay’s child support obligation was determined by the parties’ agreement. Accordingly, this issue is without merit.

6. Whether the chancellor committed manifest error by failing to address the issue of Jay’s request that his obligation to pay for college expenses be predicated on his children maintaining a minimum grade point average.

¶ 30. In his counterclaim for modification and other relief, Jay requested that the chancellor modify his divorce decree so that Jay would only be responsible for college expenses so long as the children maintained a 2.0 grade point average. The chancellor failed to address this issue in his order.

¶ 31. The parties’ settlement agreement entered into at the time of the divorce provided that Jay would maintain a trust fund that would be disbursed to Jesse and Bailey for their college expenses. Should either child elect to not attend college, their share shall be disbursed to them at age 30. There was no requirement that the children maintain a certain grade point average.

¶ 32. A settlement agreement approved by the chancellor becomes part of the final divorce decree for all legal intents and purposes. See Switzer v. Switzer, 460 So.2d 843, 845 (Miss.1984). As such, modification of that agreement requires a material change in the circumstances of the parties. Tingle v. Tingle, 573 So.2d 1389, 1391 (Miss.1990). Further, that material change must occur after the original decree was entered, and it “must also be one that could not have been anticipated by the parties at the time of the original decree.” Id. (citations omitted).

¶ 33. Jay has presented no evidence to show such a material change in circumstances. There was testimony that his son initially had trouble in college, but he has since improved his grades. Regardless, the fact that his children might not maintain a 2.0 grade point average while in college is a circumstance that could have been anticipated at the time of the original decree. Jay simply seeks to add additional limiting language that he failed to include in the settlement agreement. We find that the chancellor’s failure to address this issue does not amount to reversible error. Accordingly, this issue is without merit.

7. Whether Lisa should be awarded attorney’s fees incurred for her defense of this appeal.

¶ 34. Lisa claims that she is financially unable to pay her attorney’s fees incurred for her defense of this appeal. In support of her argument, she cites Grant v. Grant, 765 So.2d 1263, 1268(¶ 19) (Miss.2000) which, in turn, cites the supreme court’s decision in Monroe v. Monroe, 745 So.2d 249, 253(¶ 18) (Miss.1999). In Monroe, the supreme court held that:

Attorney fees are appropriate only where a party is financially unable to pay them. The fee should be fair and should only compensate for services actually rendered after it has been determined that the legal work charged for was reasonably required and necessary. Mrs. Monroe presented no evidence, however, of the fees charged by her attorney or of the amount of work involved. We therefore find that she is not entitled to attorney fees.

(Internal citations and quotations omitted).

¶ 35. Similarly, Lisa has provided no evidence of the fees charged by her attorney or of the amount of work involved. Accordingly, we deny her request for attorney’s fees for this appeal.

¶ 36. THE JUDGMENT OF THE CHANCERY COURT OF DESOTO COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . Mississippi Code Annotated section 43-19-101(1) and (4) (Rev.2004) provides:
      (1) The following child support award guidelines shall be a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state: Number Of Percentage Of Adjusted Gross
      Children Income That Should Be Due Support Awarded For Support
      1 14%
      2 20%

      (4) In cases in which the adjusted gross income as defined in this section is more than Fifty Thousand Dollars ($50,000.00) or less than Five Thousand Dollars ($5,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.

      . The parties correctly anticipated an increase in Jay’s income as his adjusted gross income increased to between $82,986.84 and $130,982.99 during the period of 2002 to 2006.


source: Caselaw Access Project

author: IRVING, J.,

license: Public Domain

text:
    Joel SISTRUNK, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00179-COA.
    Court of Appeals of Mississippi.
    March 30, 2010.
    Rehearing Denied Aug. 24, 2010.
    Certiorari Denied Dec. 2, 2010.

      Hunter Nolan Aikens, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., IRVING and ISHEE, JJ.
   IRVING, J.,

for the Court:

¶ 1. Joel Sistrunk was convicted in the Walthall County Circuit Court of possession of at least two, but less than ten, dosage units of hydrocodone in violation of Mississippi Code Annotated section 41-29-139(c) (Rev.2009). He was sentenced, as a habitual offender, to eight years in the custody of the Mississippi Department of Corrections and ordered to pay a $5,000 fine. Aggrieved, Sistrunk appeals and asserts (1) that the trial court erred in admitting a recorded statement that he made shortly after his arrest, (2) that his trial counsel was ineffective, (3) that the State committed a discovery violation, (4) that the evidence is insufficient to sustain the conviction against him, and (5) that the verdict is against the overwhelming weight of the evidence.

¶ 2. Finding no reversible error, we affirm Sistrunk’s conviction and sentence.

FACTS

¶ 8. Following a traffic stop on July 4, 2007, Sistrunk was arrested and charged with unlawful possession of hydrocodone. He was indicted in August 2007 and went to trial in October 2008.

¶ 4. Officer Tracy O’Quin with the Tyler-town Police Department testified that he received a call from the Walthall County Sheriffs Department alerting him that a possible drunk driver was operating an older model yellow truck near Highway 27. Officer O’Quin was in the area and waited for a vehicle matching that description to approach. After a couple of minutes, a vehicle matching that description came by, and Officer O’Quin began to follow it. According to Officer O’Quin, the vehicle crossed the center line, at which point Officer O’Quin activated his blue lights. After stopping the vehicle, Officer O’Quin approached the vehicle on the driver’s side. Officer O’Quin testified that he immediately recognized Sistrunk and his passenger, Bertram O’Quin, and that he smelled alcohol emanating from the vehicle. Sistrunk admitted having had one or two beers. Officer O’Quin asked Sistrunk to step out of the vehicle, so he could investigate. Officer O’Quin stated that it was at that point that he noticed a small brown bottle lying on the kick panel of the truck. Officer O’Quin obtained Sistrunk’s permission to look inside the vehicle. Officer O’Quin then picked up the bottle, opened it, and found three pills inside, which he believed to be hydrocodone. Officer O’Quin then took the pills to the Walthall County Sheriffs Department and contacted Agent Aubrey Hill with the Southwest Mississippi Narcotics Unit. Officer O’Quin testified that after speaking with Agent Hill, he met with Sistrunk on August 9, 2007, and obtained a recorded statement from him.

¶ 5. At the beginning of the tape, Officer O’Quin questioned Sistrunk regarding whether Sistrunk had been telling people that Officer O’Quin had planted the hydro-codone in his truck. Sistrunk denied having done so. At trial, Agent Hill was asked whether the charges were filed against Sistrunk as a result of the rumors. Agent Hill stated that the charges would have been filed anyway but that they had delayed filing them to give Sistrunk time to decide if he wanted to work as a confidential informant. Agent Hill also stated that the charges would have been filed whether Sistrunk worked as an informant or not.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Sistrunk’s Recorded Statement

¶ 7. In his first issue, Sistrunk argues that the trial court erred in admitting Exhibit S-l, the recorded statement that he provided to Officer O’Quin and Agent Hill. In the statement, Sistrunk made clear that he had been actively involved in the use of illegal drugs for several years. He also alluded to the fact that he had been incarcerated. Also during the statement, Officer O’Quin and Agent Hill made several attempts to convince Sistrunk to work as a confidential informant.

¶ 8. Sistrunk contends that the statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court set forth warnings that must be given in order to protect a defendant’s right against self-incrimination. Id. at 481, 86 S.Ct. 1602.

¶ 9. We note at the outset that there was no objection to the admission of Exhibit S-1, a fact that Sistrunk acknowledges. Accordingly, Sistrunk urges us to view the propriety of he exhibit’s admission under the plain-error doctrine. The Mississippi Supreme Court has held that “[u]nder the plain-error doctrine, we can recognize obvious error which was not properly raised by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive right.’ ” Neal v. State, 15 So.3d 388, 403 (¶ 32) (Miss.2009) (quoting Smith v. State, 986 So.2d 290, 294 (¶ 10) (Miss.2008)).

¶ 10. Sistrunk’s attorney filed a motion in limine to exclude testimony as it related to Sistrunk’s prior convictions and past bad conduct. The trial court granted the motion and stated:

I’m granting your motion in limine. [The attorney for the State] cannot bring up prior convictions unless and until he approaches the bench, and he’s granted leave to do so. If he believes you’ve opened the door, and then at that point he’ll have — you know, he can make a contemporaneous objection if he thinks you’ve opened the door. We’ll just have to see how it plays out. But the motion is granted. There won’t be any mention of the prior convictions without first approaching the bench and obtaining a ruling. All right.

Thereafter, the statement was pre-marked as Exhibit S-l. Later, Sistrunk’s attorney agreed to allow the statement into evidence without seeking to have any portion of it redacted, even though the statement contained the very information that Sis-trunk sought to have excluded. The following exchange occurred during Officer O’Quin’s direct examination:

Q. Okay. Now, I want to ask you what happened around August 9th of 2007?
A. Okay. Do you want me to tell you, or do you want — you want me to tell you now?
Q. Yeah, I’m asking you what happened on August 9th.
A. Once I turned Mr. Sistrunk over to the narcotics officer, which was Agent Hill at the time, I’m kind of out of the loop, so to speak. Agent Hill would confer with me about what they talked about. He wouldn’t tell me everything. But Agent Hill came to me and said that—
[ATTORNEY FOR DEFENDANT]:
Object to hearsay, Your Honor.
[ATTORNEY FOR THE STATE]: Let me rephrase the question.
BY THE COURT: All right.
Q. Did the conversation that you had with Agent Hill that you were about to refer to, did that lead to a subsequent meeting with the Defendant, Joel Sistrunk?
A. Yes.
[ATTORNEY FOR THE STATE]: Your Honor, then we would offer this not to show the truth of the matter asserted but for the — to show what he did next.
BY THE COURT: All right. Counsel, approach.
(FOLLOWING PROCEEDINGS HAD
AT BENCH, OUTSIDE THE HEARING OF THE JURY):
[ATTORNEY FOR THE STATE]: The truth of the matter is is that it’s pretty clear on the tape what he heard.
[ATTORNEY FOR DEFENDANT]: Yeah, I mean, I’d rather just play the tape.
[ATTORNEY FOR THE STATE]: I was just going to lead up to the tape and play the tape.
BY THE COURT: I’ll sustain the objection. I mean, I think — you establish [sic] that that’s how he got in touch with—
[ATTORNEY FOR THE STATE]: Okay.
(FOLLOWING PROCEEDINGS HAD IN COURTROOM, IN PRESENCE OF THE JURY):
DIRECT EXAMINATION CONTINUED:
Q. Based on the conversation you had ■with Agent Hill, was a tape recording of a meeting made?
A. Yes, sir, it was.
[ATTORNEY FOR THE STATE]: Okay. May I approach the witness? Your Honor, for the record, I’m handing the witness what has previously been marked and entered as State’s Exhibit No. 1.
Q. I’d ask you, if you could, Officer O’Quin, to tell the ladies and gentlemen of the jury what that is a tape recording of.
A. This is a tape of a conversation that myself, Agent Hill, and the Defendant had on August the 9th. I made the recording.
Q. Okay. And how did you make the recording?
A. I had a tape recorder on — laying [sic] on the desk.
Q. Why did you make the recording?
A. Because there had been some accusations made, and I wanted to clear them up.
Q. Okay. And that recording that you have there, is that a fair and accurate copy of the recording that was actually made?
A. Yes, it is.
[ATTORNEY FOR THE STATE]: Your Honor, at this time the State would ask to be allowed to play the recording.
BY THE COURT: You may.
(EXHIBIT S-l PLAYED).

(Emphasis added).

¶ 11. We cannot agree with Sistrunk that the failure to object falls within the realm of plain error, which would require this Court to consider the issue. Sis-trunk’s attorney not only failed to object to the introduction of the statement, but he stated that he preferred that the statement be admitted into evidence. Accordingly, we fail to see how Sistrunk can now argue that the trial court erred in admitting the statement.

¶ 12. Sistrunk also argues that the prosecutor committed prosecutorial misconduct in offering the statement into evidence because he had filed a motion in limine to prevent any evidence of his prior convictions or past bad conduct. Specifically, Sistrunk argues in his brief that:

the State committed prosecutorial misconduct in offering the Exhibit S-l in spite of the motion in limine, and, further, the trial court erred in failing to sua sponte order a mistrial, pursuant to Uniform Circuit and County Court Rule 3.12, due to the State’s misconduct and the extremely damaging nature of the evidence.

Sistrunk contends that allowing this evidence to come in violated Rule 404(a)(1) and (b) of the Mississippi Rules of Evidence because the probative value of the evidence was outweighed by its prejudicial effect. We disagree. But more importantly, Sistrunk fails to consider that it was his attorney who agreed to have the statement pre-marked and who later suggested that it be entered into evidence. Further, as stated, Sistrunk’s attorney did not seek to redact that portion of the tape that Sistrunk now contends was substantially prejudicial to his case. Therefore, even if we agreed with Sistrunk’s argument that the probative value of the evidence was outweighed by its prejudicial effect, he would not be able to obtain any relief, because not only did his attorney fail to object to the admission of the evidence, he urged its admission. Therefore, the issue is procedurally barred.

2. Ineffective Assistance of Counsel

¶ 13. In Read v. State, 430 So.2d 832, 841 (Miss.1983), the Mississippi Supreme Court set forth procedural rules that must be followed when a defendant raises a claim of ineffective assistance of counsel on direct appeal:

If ... [after] a review of the record, ... [an appellate court] can say that the defendant has been denied the effective assistance of counsel, the [c]ourt should also adjudge and reverse and remand for a new trial.... Assuming that the [c]ourt is unable to conclude from the record on appeal that defendant’s trial counsel was constitutionally ineffective, the [c]ourt should then proceed to decide the other issues in the case.... On the other hand, if the [c]ourt should otherwise affirm, it should do so without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings. If the [c]ourt otherwise affirms, it may nevertheless reach the merits of the ineffectiveness issue where ... the record affirmatively shows ineffectiveness of constitutional dimensions, or ... the parties stipulate that the record is adequate and the [c]ourt determines that findings of fact by a trial judge[,] able to consider the demeanor of witnesses, etc.[,] are not needed.

(Citations omitted).

¶ 14. In this issue, Sistrunk contends that he did not receive effective assistance of counsel because his attorney failed to object to the admission of the statement and failed to object to statements made by the prosecutor during his closing argument regarding Sistrunk’s prior convictions. Specifically, Sistrunk argues that his attorney’s failure to object to the statement “was clearly unreasonable.” In his brief, Sistrunk opines that his attorney may have failed to object to the statements because “he was of the opinion that it was [a] good defense that the officers decided to charge [him] only because they were upset with him.”

¶ 15. To prevail on an ineffective-assistance-of-counsel claim, a defendant must show that his attorney’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must also show that his attorney’s “representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. Further, in Strickland, the United States Supreme Court held that:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”

Id. at 689,104 S.Ct. 2052.

¶ 16. The record before us is not adequate to determine whether Sistrunk’s attorney’s decision to allow the statement into evidence constitutes ineffective assistance of counsel, as it can be argued that Sistrunk’s attorney may have agreed to the admission of the statement with the hope that the jury would conclude that the charges against Sistrunk were filed not because he actually possessed the contraband, but because he refused to work as a confidential informant for the authorities. This theory would be somewhat consistent with the notion that Officer O’Quin planted the pills in Sistrunk’s truck, a rumor that Officer O’Quin acknowledged on the tape as having heard in the streets. Because we are unable to conclude after a thorough review of the record that Sis-trunk’s attorney was constitutionally ineffective, we refrain from addressing his claim of ineffective assistance of counsel, without prejudice to him to raise this issue in a motion for post-conviction relief should he desire to do so.

3. Discovery Violation

¶ 17. Sistrunk contends that he was unfairly surprised by the State’s failure to disclose during discovery that Paige Mills, a forensic scientist with the Mississippi Crime Laboratory, would testify that he possessed ten milligrams of hydroco-done. Sistrunk argues that the crime laboratory report does not indicate that Mills reached a conclusion regarding the number of milligrams of hydrocodone in the pills. We note at the outset that Sis-trunk’s attorney failed to make a contemporaneous objection at trial. It is well settled that “to preserve an issue for appeal, a contemporaneous objection must be made.” Christmas v. State, 10 So.3d 413, 421 (¶ 36) (Miss.2009) (quoting Walker v. State, 913 So.2d 198, 238 (11148) (Miss.2005)). Here, as reflected in the following colloquy, the objection was not made until after Mills had twice stated that the pills contained ten milligrams of hydrocodone:

Q. And what are those tests and analy-ses called that you performed?
A. I performed a literature reference as well as a gas chromatograph mass spectrometer test.
Q. And did those tests and' analyses enable you to form an expert opinion as to what the exhibit is or what it contains?
A. Yes.
Q. Okay. And what is that?
A. Hydrocodone and acetaminophen.
Q. Okay. And in what milligrams are those pills in?
A. The acetaminophen is 650 milligrams, and the hydrocodone is 10 milligrams.
Q. The hydrocodone is how much?
A. Ten milligrams.

Following the quoted exchange, Sistrunk’s attorney asked if the attorneys could approach the bench. It was at this point that he objected. Accordingly, we find that this issue is procedurally barred.

A Sufficiency and Weight of the Evidence

¶ 18. Sistrunk filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial. A motion for a judgment notwithstanding the verdict challenges the sufficiency of the evidence. Ivy v. State, 949 So.2d 748, 751 (¶ 14) (Miss.2007) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). On the other hand, a motion for a new trial challenges the weight of the evidence. Barfield v. State, 22 So.3d 1175, 1187 (¶ 46) (Miss.2009) (citing Wilkins v. State, 1 So.3d 850, 854 (¶ 11) (Miss.2008)).

a. Sufficiency

¶ 19. In Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)), our supreme court stated that when reviewing issues regarding the sufficiency of the evidence, the relevant question is “whether, after viewing 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.” The Bush court also held that:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70; see also Gibby v. State, 744 So.2d 244, 245 (Miss.1999).

Id.

¶20. After considering the evidence in the light most favorable to the State, we find that sufficient evidence exists to support Sistrunk’s conviction for possessing hydrocodone in violation of section 41-29-139(c), which states in part:

It is unlawful for any person knowingly or intentionally to possess any controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article. The penalties for any violation of this subsection (c) with respect to a controlled substance classified in Schedules I, II, III, IV or V, as set out in Sections 41-29-113, 41-29-115, 41-29-117, 41-29-119 or 41-29-121, including marihuana, shall be based on dosage unit as defined herein or the weight of the controlled substance as set forth herein as appropriate:
“Dosage unit (d.u.)” means a tablet or capsule, or in the case of a liquid solution, one (1) milliliter. In the case of lysergic acid diethylamide (LSD) the term, “dosage unit” means a stamp, square, dot, microdot, tablet or capsule of a controlled substance.

Pursuant to section 41-29-139(c), a tablet constitutes a dosage unit. Therefore, Sis-trunk violated the statute by possessing hydrocodone tablets for which he did not have a prescription. The record contains a letter from Sistrunk’s dentist wherein he stated that on January 8, 2007, Sistrunk “was given Amoil 500 mg 24 tablets and Lortab 5 mg 20 tablets.” The record also contains a medical expenses report that indicates that Sistrunk had been prescribed hydrocodone and 500 milligrams of amoxicillin on January 8, 2007. However, Mills testified that the officers recovered hydrocodone in the amount of ten milligrams from Sistrunk’s vehicle. The record does not contain anything that indicates that Sistrunk was prescribed ten milligrams of hydrocodone. Mississippi Code Annotated section 41-29-148(1) (Rev.2009) provides that: “It is not necessary for the state to negate any exemption in this article in any complaint, indictment or other pleading or in any trial, hearing, or other proceeding under said article. The burden of proof of any exemption or exception is upon the person claiming it.” The State met its burden of proving that Sistrunk possessed a controlled substance in violation of section 41-29-139(c). Although the testimony reveals that Sistrunk had a prescription for hydrocodone, he did not have a prescription for the ten milligrams that were found in his possession. This issue lacks merit.

b. Weight

¶ 21. It is well settled that an appellate court will not disturb a verdict unless allowing it to stand will sanction an unconscionable injustice. Bush, 895 So.2d at 844 (¶ 18). The record clearly reflects that Sistrunk possessed hydrocodone in violation of section 41-29-139, as Officer O’Quin testified that he recovered pills from Sistrunk’s truck and those pills were later determined to be hydrocodone. Further, the record establishes that the pills were not lawfully in Sistrunk’s possession. Accordingly, we find that allowing Sis-trunk’s conviction for possession of at least two, but less than ten, dosage units of hydrocodone to stand will not sanction an unconscionable injustice. There is no merit to this issue.

¶ 22. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF AT LEAST TWO, BUT LESS THAN TEN, DOSAGE UNITS OF HY-DROCODONE AND SENTENCE, AS A HABITUAL OFFENDER, OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $5,000 FINE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT.

      . Bertram O’Quin and Officer O’Quin are not related.

      . It was determined that two of the pills were hydrocodone and one was acetaminophen.

      . Sistrunk takes issue with the following statements made by the prosecutor during closing argument: "What you heard is somebody who knows more about the drug trade probably than about anyone that you can find. He knew who had dope, when they had dope, who he got marijuana from, who he done [sic] dope with, time and time again.”


author: ROBERTS, J.,

text:
    Norman Ray SMITH, Appellant v. MASONITE CORPORATION and Lumbermen’s Underwriting Alliance, Appellees.
    No. 2009-WC-00549-COA.
    Court of Appeals of Mississippi.
    April 6, 2010.
    Rehearing Denied Aug. 10, 2010.
    Certiorari Denied Dec. 2, 2010.

      Craig N. Orr, Ryan Jeffrey Mitchell, attorneys for appellant.
    Brett Woods Robinson, attorney for ap-pellees.
   ROBERTS, J.,

for the Court:

¶ 1. Norman Ray Smith filed a claim for worker’s compensation benefits based on alleged bilateral knee injuries sustained during his employment as an instrument technician for Masonite Corporation in Laurel, Mississippi. The administrative law judge (ALJ) found that Smith sustained a 15% loss of use to each of his knees. The full Commission affirmed the ALJ’s decision. Smith appealed to the Jones County Circuit Court, but the circuit court affirmed the Commission’s decision. Aggrieved, Smith appeals to this Court. According to Smith, the ALJ erred when she did not find that he was temporarily disabled between the date he reported his injury and the date of his maximum medical improvement. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. As of September 2004, Smith had been working for Masonite for twenty-two years. Smith worked as an instrument technician. Smith’s work often required that he climb ladders. However, on September 11, 2004, Smith told one of his coworkers that he could not climb ladders because his knees hurt. Smith’s co-worker told his supervisor, Austin Clement, that he needed to work with someone who could climb ladders. According to Smith, “that’s when it all started.”

¶ 3. Smith told Clement that he “can’t handle this heavy climbing anymore; my knees can’t stand it.” However, Smith did not tell Clement or anyone else at Masonite that he thought he had sustained a work-related injury. Clement took Smith to see Lynn Mahaffey, an occupational health nurse who was employed by Masonite. The record indicates that Masonite’s on-call physician examined Smith and stated that he could not make any recommendations until Smith saw a specialist. Ma-haffey scheduled an appointment for Smith with Dr. Steven Nowieki, an orthopedic surgeon with the Laurel Bone and Joint Clinic in Laurel, Mississippi. Dr. Nowieki examined Smith on September 13, 2004.

¶ 4. According to Dr. Nowieki, Smith was experiencing “patello-femoral syndrome.” Dr. Nowieki recommended that Smith perform exercises to strengthen his hamstrings and quadriceps. Dr. Nowieki also recommended that Smith wear patello knee sleeves to support his knees. Otherwise, Dr. Nowieki recommended that Smith avoid climbing ladders on a repeated basis. Dr. Nowieki released Smith to return to work the next day.

¶ 5. However, the same day Smith visited Dr. Nowieki, Smith went back to Masonite and met with Mahaffey. The record indicates that Mahaffey gave Smith an application for short-term disability benefits. Smith filled out the application that very day. Under the section titled “date of accident or sickness,” Smith wrote “started few years ago and getting worse.”

¶ 6. What Smith later described as “a day or so” after his appointment with Dr. Nowieki, Mahaffey called Smith and told him that “we’ve got to file a workman’s comp on this for an accident.” Smith later testified that he responded, “what accident? I didn’t have an accident.” Smith then called Dr. Nowieki and told him, “[l]ook, this is not an accident; I don’t think its work-related.”

¶ 7. According to Smith, Mahaffey told him to go home and wait for someone to contact him. Smith testified that he called Mahaffey three weeks later, and Mahaffey told him that there had been no changes at that time. Smith testified that he next heard from Masonite approximately twenty-six weeks later, informing him that his short-term disability benefits would soon expire.

¶ 8. At some unspecified time between September 2004 and the expiration of his short-term disability benefits, Smith consulted with an attorney. According to Smith, he “thought Masonite had done something wrong at one time.” Smith added that:

it just didn’t seem right. I mean, I got a knee problem; I did not know what caused that knee problem. Nobody would really tell me what caused that knee problem. And, I mean, I’m sitting at the house going broke. Nobody is telling me nothing [sic]. And I felt that Masonite had done something wrong, so I went to see [an] attorney. I thought [Masonite] had violated the American Disabilities Act laws is what I thought, and I went and talked to [an] attorney in Jackson.

That attorney obtained Dr. Nowicki’s initial report, in which Dr. Nowieki opined that Smith’s condition was related to his employment at Masonite. However, Smith did not do anything at that time. He opted to continue receiving short-term disability benefits.

¶ 9. Smith estimated that it was during the following March or April that he went to Masonite to “try to work out whatever was going to happen with the temporary disability.” Smith testified that Masonite met with him regarding converting his short-term disability benefits to long-term disability benefits. During that meeting, Smith gave Masonite a copy of Dr. Now-icki’s report indicating that Smith’s knee pain was work related. To reiterate, Dr. Nowicki drafted that report before Smith contacted him and informed him that his condition was not due to a work-related accident. In any event, Mahaffey asked Smith how he wanted to proceed. Smith responded that he did not know. Mahaf-fey put Smith in contact with Bryan Huck-abay, Masonite’s health and safety manager.

¶ 10. Huckabay called Smith approximately one to two weeks later. Huckabay asked Smith whether he was going to change his position that his injury was not related to his employment. Smith told Huckabay that he was going to change his position. Huckabay then informed Smith that he could come back to work because they were going to accommodate his restrictions. According to Smith’s deposition testimony, Smith told Huckabay, “[w]ell, if you had work for me, you’d have had it seven months ago.” Smith also told Huckabay, “coming back down there was not an option.” Smith explained his response. According to Smith, “[t]he reason I said that’s not an option, I was there for twenty-two years and my knees are damaged because of working down there. Why would I want to go down there and get back into the same situation and make my knees worse?”

¶ 11. On May 2, 2005, Smith filed a petition to controvert. Within his petition, Smith stated that he had sustained a com-pensable injury on September 11, 2004. He described his compensable injury as a bilateral injury due to “cumulative impact caused by vertical climbing.”

¶ 12. Dr. Kendall Blake, an orthopedic surgeon, examined Smith during November 2005. Smith told Dr. Blake that his knees began to hurt approximately two to three years before September 2004. Smith also told Dr. Blake that he had worked for Swift Transport as a truck driver for approximately five weeks beginning sometime in October until the end of November 2004. Smith stopped working for Swift for reasons unrelated to knee pain. Additionally, Smith told Dr. Blake that he had worked for Federal Express as a truck driver and delivery person for approximately six months. As with Swift, Smith stopped working for Federal Express for reasons unrelated to knee pain.

¶ 13. Dr. Blake concluded that Smith had mild early degenerative joint disease in both knees. Dr. Blake did not think Smith would ever require surgical knee replacement due to that condition. Dr. Blake noted that, unless he lost weight, Smith had reached his maximum medical improvement at the time he had stopped working for Masonite.

¶ 14. On February 13, 2006, Smith was examined by Dr. Keith Melancon, an orthopedic surgeon. Dr. Melancon diagnosed Smith with “bilateral patello-femo-ral chondromalacia.” Dr. Melancon opined that Smith could not return to his work at Masonite. Dr. Melancon treated Smith with a series of injections in both knees. Dr. Melancon also permanently restricted Smith from any work that required kneeling, crawling, squatting, and stooping, as well as any work that required climbing stairs or ladders. According to Dr. Melancon, Smith would require knee replacements in both knees. Finally, Dr. Melancon requested that Smith undergo a functional-capacity evaluation (FCE).

¶ 15. As requested, Smith performed the FCE on December 7, 2006. The conclusion based on the FCE was that Smith was capable of performing physical work at a medium level and that Smith fully performed seventeen out of seventeen tasks without having to limit himself. Ultimately, the conclusion based on the FCE was that Smith’s maximum level of repetitive lifting was thirty pounds. However, Smith could sit, stand, and work standing constantly for two-thirds to a full day. Smith was restricted from tasks that required repetitive squatting or climbing ladders.

¶ 16. On January 2, 2007, Dr. Melancon concluded that Smith had reached maximum medical improvement. Dr. Melancon adopted the FCE conclusions and found that Smith had a 37% impairment rating to both legs. However, Dr. Melancon released Smith to return to work the next day, as long as Smith worked within his restrictions. Finally, Dr. Melancon concluded that Smith would need “total knee arthroplasty on each knee.”

¶ 17. In August 2007, the ALJ conducted a hearing on Smith’s petition to controvert. On February 26, 2008, the ALJ entered her order. Within her order, which is very detailed and thorough, the ALJ found that Smith’s injuries prevented him from performing his previous position with Masonite. The ALJ also found that Smith sustained a “permanent partial impairment to each lower extremity of 15%.” The ALJ concluded that Smith was entitled to permanent partial disability benefits of $341.11 per week for the 52.5 weeks that followed January 2, 2007, along with any applicable penalties and interest.

¶ 18. Smith appealed, but the full Commission affirmed without additional comment. Smith then appealed to the circuit court, which affirmed the Commission’s decision. Aggrieved, Smith appeals.

STANDARD OF REVIEW

¶ 19. This Court’s standard of review in workers’ compensations case is well settled:

The Mississippi Worker[s’] Compensation Commission is the ultimate fact-finder. Accordingly, the Commission may accept or reject an administrative judge’s findings. This Court will affirm the Commission’s findings of fact if they are supported by substantial evidence. In other words, this Court will reverse an order of the Workers’ Compensation Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence. Doubtful claims should be resolved in favor of compensation, so as to fulfill the beneficial purposes of statutory law. Unless common knowledge suffices, medical evidence must prove not only the existence of a disability but also its causal connection to the employment. As with any fact-finder, the Commission is entitled to rely upon the evidence and reasonable inferences.

Frito-Lay, Inc. v. Leatherwood, 908 So.2d 175, 179-80 (¶¶ 20-21) (Miss.Ct.App.2005) (internal citations and quotations omitted).

ANALYSIS

I. LOSS OF USE

¶ 20. Smith claims the ALJ erred when she declined to find that, because he could not return to his previous employment as an instrument technician, Smith was entitled to a 100% loss of use of each of his legs. The ALJ based her finding that Smith had not sustained a total occupational loss of use of his legs on the following: the medical records and physicians’ testimonies; Smith’s post-injury employment; Smith’s “failure to conduct an adequate job search”; and Smith’s training, age, work history, and education. Smith would have this Court find that the ALJ erred. Based on the evidence before the ALJ and our standard of review, we find no merit to Smith’s claim.

¶ 21. “In a workers’ compensation case, the claimant bears the burden of proving by a fair preponderance of the evidence each element of the claim. These elements are: (1) an accidental injury, (2) arising out of and in the course of employment, and (8) a causal connection between the injury and the death or claimed disability.” Hardin’s Bakeries v. Dependent of Harrell, 566 So.2d 1261, 1264 (Miss.1990) (internal citations and quotations omitted). Disability means “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. § 71-3-3© (Rev.2000). The Mississippi Supreme Court has held that:

If the injury prevents the employee from resuming his former trade, work or employment, this alone is not the test of disability to earn wages or the test of the degree of such disability, but the definition relates to loss of capacity in “the same or other employment,” and the meaning is that the employee, after his period of temporary total incapacity, must seek employment in another or different trade to earn his wages.

Sardis Luggage Co. v. Wilson, 374 So.2d 826, 828 (Miss.1979) (quoting V. Dunn, Mississippi Workmen’s Compensation § 72 (2d ed.1967)).

¶ 22. “In determining whether a claimant has made reasonable efforts to find gainful employment, the facts of each case must be examined individually, because we cannot delineate any hard and fast rule as to how many or exactly what type efforts a claimant must make in every case in order to establish disability within the purview of § 71 — 3—3(i).” Ford v. Emhart, Inc., 755 So.2d 1263, 1267 (¶11) (Miss.Ct.App.2000) (citation and internal quotations omitted). However, if a claimant successfully demonstrates a prima fa-cie showing of reasonable but unsuccessful efforts to find suitable employment, the burden of proof shifts to the employer, which must then prove otherwise. Id. at 1268 (¶ 13). The following factors “may be” relevant in determining whether a claimant made a reasonable effort to obtain employment in the same or another occupation: (1) “the economic and industrial aspects of the local community”; (2) “the jobs available in the community and surrounding area”; (3) “the claimant’s general educational background, including work skills”; and (4) “the particular nature of the disability for which compensation is sought.” Id. at (¶ 12). “Whether the claimant has made a prima facie case is a question of fact.” Id. at (¶ 13).

¶ 23. Smith had an associate’s degree in electronics technology. He also had a Class A driver’s license, meaning he could work as a commercial truck driver. Even after he left his employment at Masonite, Smith worked as a truck driver for Swift and left that employment for reasons unrelated to pain in his knees. Likewise, Smith worked as a truck driver and delivery man for Federal Express, and he also quit that position for reasons unrelated to pain in his knees. Smith also attempted to establish a business building steps for mobile homes. He stopped doing that because the venture was unprofitable — not because his knees hurt. Every physician who treated Smith released Smith to return to work, albeit with restrictions to avoid activities similar to his previous employment at Masonite which involved frequent climbing of ladders. Masonite even offered Smith a position, but Smith refused to return to work at Masonite. Smith testified that he did not return to Masonite based on his concern that he would further injure his knees, but there was no evidence that Masonite intended to place Smith back in that same position. There was no evidence that Masonite refused to accommodate Smith’s injuries.

¶24. In Ford, a claimant argued that because she could not “perform the substantial acts of her usual occupation she ... sustained a 100 percent industrial loss of the use of her legs regardless of whether she made efforts to obtain other employment.” Ford, 755 So.2d at 1267 (¶ 10). However, this Court held that the claimant “defeated her own argument by working for six years after the injury,” and “[tjhat fact established that [the claimant] could work.” Id. Accordingly, this Court held that the Commission’s decision was supported by substantial evidence, and we found no basis to reverse the Commission’s decision. Id. Physician testimony indicated that Smith’s knee pain was partially related to his weight, which fluctuated at a range between 265 and 280 pounds during the course of his treatment. Smith worked after he left his employment at Masonite. His knee pain did not stop him from working in those positions. Additionally, vocational-rehabilitation expert Pete Mills testified that he provided Smith with multiple lists of potential jobs within his restrictions, and Smith applied for only four of those positions. Otherwise, Smith testified that he reviewed two or three sources in which employers advertised available positions, but he did not apply to one potential job through those sources. Dr. Melancon released Smith to return to work in January 2007. Smith did not apply for any work for the next three months. As of the date of the hearing, Smith had not applied for work in six months. The results of the FCE indicated that Smith had some limitations, but there was no conclusion that Smith was completely unable to work. Based on the totality of the circumstances and our deferential standard of review involving questions of fact, we find no merit to Smith’s claim that the ALJ erred when she declined to find that Smith suffered a total occupational loss of use of his legs.

II. LACK OF A MEDICAL IMPAIRMENT

¶ 25. Smith claims the ALJ “erred by failing to make a finding as to the claimant’s percent of medical impairment.” The ALJ found that Smith had a 15% permanent partial impairment to each lower extremity. According to Smith, the ALJ should have found that Smith had a 37% medical impairment rating to each lower extremity as determined by Dr. Me-lancon.

¶ 26. Smith’s argument is based on the principle that an employee who suffers an injury to a scheduled member resulting in permanent partial disability is entitled to “the greater amount of compensation determined under two alternate theories of computation.” Hollingsworth v. I.C. Isaacs and Co., 725 So.2d 251, 254 (¶ 10) (Miss.Ct.App.1998). The first theory of computation involves determining the functional disability of the member and then determining the appropriate level of compensation by multiplying the percentage of disability times the maximum number of weeks for the scheduled member and then multiplying that figure by sixty-six and two-thirds percent of the employee’s average weekly wage. Id. This is the method the ALJ used in this case. The second theory of computation involves determining the employee’s industrial disability. Id. An employee’s industrial disability is based not only on the medical evidence, but also upon the evidence demonstrating how the employee’s limited functioning member affects the employee’s ability to perform the duties normally associated with his job. Id.

¶ 27. According to Smith, the ALJ should have utilized the second method and found that, pursuant to Dr. Melan-con’s opinion, Smith’s medical impairment was 37%; therefore, Smith contends he is entitled to a higher rate of compensation. We disagree. “[T]o show industrial disability, the claimant bears the burden of proving medical impairment and a loss of wage-earning capacity as a result of the medical impairment.” Ford, 755 So.2d at 1266 (¶ 7) (emphasis added). Here, there was evidence that there were positions available in which Smith could work despite the defined physical limitations imposed by the loss of some function in his knees. “Though the compensation laws contemplate the right of judicial review of the Commission’s determinations, this Court is limited in its authority to review such determinations, and is required to give great deference to the work of the Commission.” Hollingsworth, 725 So.2d at 254 (¶ 11). It is not within the realm of our authority to re-weigh the evidence. Id. Instead, we are obligated to affirm if there is substantial evidence to support the Commission’s findings. Id. at 254-55 (¶ 11). Pursuant to that obligation, we find no merit to this issue.

III. TEMPORARY DISABILITY BENEFITS

¶ 28. In his final issue, Smith claims the ALJ erred when she found that all temporary disability benefits had been paid. According to Smith, the ALJ correctly found that Smith reached maximum medical improvement on January 2, 2007. Smith notes that the parties had stipulated that Masonite had only paid temporary disability benefits from September 14, 2004, through April 10, 2005, and also from February 13, 2006, through February 11, 2007.

¶ 29. However, Smith refused to return to work when Masonite offered him a position in April 2005. Smith began to work for Federal Express in May 2005. Until February 13, 2006, no physician instructed Smith to avoid returning to work. Accordingly, we find no merit to this issue.

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

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

      . There was some dispute as to whether Ma-haffey recommended Dr. Steven Nowieki, or whether Smith selected Dr. Nowieki from a number of potential examining physicians that Mahaffey named.

      . Under the circumstances, the ALJ is referred to as the fact-finder, rather than the full Commission.


author: MYERS, P.J.,

text:
    DELTA HOUSING DEVELOPMENT CORPORATION, Appellant v. Mabel JOHNSON, Appellee.
    No. 2008-CA-02127-COA.
    Court of Appeals of Mississippi.
    April 6, 2010.
    Rehearing Denied Aug. 31, 2010.
    Certiorari Denied Dec. 2, 2010.

      Alsee McDaniel, Indianola, attorney for appellant.
    Derek D. Hopson, Clarksdale, Melissa Selman Martin, Drew McLemore Martin, David Neil McCarty, Jackson, attorneys for appellee.
    Before MYERS, P.J., BARNES and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. This case comes before the Court from a judgment entered by the Chancery Court of Bolivar County granting Mabel Johnson’s (Mabel) action for ejectment and directing Delta Housing Development Corporation (Delta) to remove all infrastructure that it placed on Mabel’s property. Specifically, the order mandates the removal of a fire hydrant, manhole, and a sewage-lift station, as well as water and sewer lines, and the encroaching portions of a street. Feeling aggrieved, Delta appeals to this Court and argues the following: (1) the adoption of the plat of the Rox-C-Sneed subdivision by the City of Mound Bayou in 1947 is presumptively valid; (2) the action filed by Mabel is barred by res judicata; and (8) Mabel’s action for a mandatory injunction is barred by laches and/or equitable estoppel. Finding no error, we were affirm the chancery court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 1944, Mabel’s father, Holt Johnson, purchased an eighty-acre tract of land in Mound Bayou, Mississippi. In 1947, the City of Mound Bayou adopted a plat for the Rox-C-Sneed subdivision, which was recorded in the land records in the office of the Bolivar County Chancery Clerk; this property lies adjacent to Mabel’s east-property line. The Rox-C-Sneed subdivision plat, as the chancery court would later determine, contained an error in the description of the west-property line, which created a “pie shape” overlap onto Mabel’s property, up to eighteen-feet wide.

¶ 3. In 1988, the “unplatted portion of Block 2” in the Rox-C-Sneed subdivision was sold for taxes by the Bolivar County Tax Collector and purchased by Herman Johnson. Following the redemption period, the chancery clerk executed a tax deed to Herman. In 1993, Herman executed a quit claim deed to his wife, Alfreta Johnson. In 1994, Herman and Alfreta filed a petition in the chancery court to confirm title and remove clouds on the property. A judgment confirming title was entered on February 2, 1995. Alfreta shortly thereafter conveyed 6.02 acres of the property by warranty deed to Delta. After receiving the warranty deed to the property, Clanton Beamon, Executive Director of Delta, submitted a preliminary plat to the Mayor and Board of Alderman of Mound Bayou for approval of a subdivision to be called the Sam Thompson Green Acres Subdivision. The plat eventually was adopted by the City of Mound Bayou in 2006.

¶4. Prior to the judgment confirming title in 1995, Delta had contracted with Hooker Engineering Services to conduct a survey of the property. According to the record, Beamon stated in his testimony that before Hooker conducted the survey, he had assumed that Mabel’s property line was demarcated by a drainage ditch. Beamon said that upon inspection of the property following the survey, he was surprised to discover a survey-stake angled out into Mabel’s field.

¶ 5. According to Mabel, she learned through Beamon sometime in early 1996 that Delta intended to develop the property adjacent to hers. Mabel told Beamon that she had no problem with the project as long as the construction did not interfere with her property.

¶ 6. In July 1996, Mabel received a letter from Delta’s legal counsel informing her that, based on the survey conducted by Hooker, Delta’s west property line extends to and across land claimed to be owned by her. The letter requested that Mabel provide Delta with any surveys or legal documents she might have reflecting otherwise.

¶7. Mabel sought legal counsel. She spoke to a number of attorneys, but for various reasons, she was unable to attain their assistance. Eventually, she hired Jeffrey Levingston. Levingston assisted Mabel for a short period in the fall of 1996 before he withdrew from the matter, due to an apparent conflict.

¶ 8. In October 1996, Delta’s contractor, Jimmy Douglas, staked the areas where the utility structures in question were to be placed. Levingston sent correspondence to Delta advising the company that it was encroaching onto Mabel’s property. Lev-ingston informed Delta that a drainage ditch delineates Mabel’s east-property line. Levingston disclosed that he was not sure what a survey would show in terms of record title, but he was confident Mabel at least had title by virtue of adverse possession; thus, he would not hesitate filing suit in order to preserve Mabel’s rights. Lev-ingston strongly suggested to Delta that any construction activities should be carried out east of Mabel’s boundary line. Construction continued, and at some point in October 1996, Mabel had Beamon arrested for trespassing. On the advice of Levingston, Mabel dropped the charges.

¶ 9. Sometime in the first half of 1997, after Levingston withdrew from the case, Mabel hired her present attorney, Derek Hopson. In June of that year, she contracted with Allen & Hoshall, Ltd. to conduct a survey to establish her property’s boundary lines. Meanwhile, Delta continued construction. Douglas filled in the ditch that supposedly marked Mabel’s east-property line. He installed the sewage-lift station in December 1996; he finished the water and sewer lines in June 1997; and two-months later, he completed the roadbed. According to Mabel, a pecan tree located on the strip of land in question, and which was planted there by her late son many years ago, was removed during the process.

¶ 10. On August 19, 1997, Mabel filed a petition in the chancery court against Delta, Herman, and Alfreta, which requested a temporary injunction be issued restraining Delta from carrying on development and construction operations on her real property. The chancery court issued a temporary restraining order (TRO) that same day. According to the record, a proposed order was drafted by Hopson and approved by Delta’s legal counsel, which would have extended the TRO. However, the order was never signed by the chancellor. On September 9, 1997, Mabel filed an amended petition for permanent injunction, restoration of land, order confirming title, and monetary damages.

¶ 11. That same day, on September 9, Delta filed its answer to the TRO petition filed by Mabel on August 19. Delta claimed that the exact boundaries of the property described in Mabel’s petition were in dispute, and it pleaded the affirmative defenses of res judicata and laches. According to Delta, because the chancery court had entered a final decree in 1995, adjudicating its predecessor’s title to the unplatted portion of the Rox-C-Sneed-subdivision, Mabel’s action was barred under the doctrine of res judicata. Delta also claimed that Mabel was aware of the development project as early as 1994, and because she took no legal action to assert and/or secure her rights, her action was barred under the doctrine of laches. Delta filed a counterclaim against Mabel, alleging, inter alia, that as a result of the TRO, it suffered losses in excess of $50,000. Delta sought compensatory damages in the amount of $100,000. According to the record, Delta continued construction after the TRO expired.

¶ 12. On January 16, 1998, the chancery court issued an order appointing David Evans, an experienced and qualified land surveyor, as special master for the purpose of deciphering and interpreting the parties’ respective and conflicting surveys. Evans was instructed to inspect the land in question. Evans found that the Alen & Hoshall survey correctly established Mabel’s east-property line. According to Evans, the Rox-C-Sneed subdivision plat, which was filed in the office of land records for Bolivar County subsequent to the recordation of Holt’s deed, contained an incorrect course run for its west-property line. When Hooker conducted its survey, it drew from this erroneous description, which resulted in a zero-to-eighteen-foot overlap onto Mabel’s property.

¶ 13. On February 25, 1998, the chancery court issued an order accepting the special master’s findings. Delta did not contest these findings.

¶ 14. The matter was set for trial to begin on April 17, 1998. Mabel thereafter amended her complaint to include ownership by adverse possession of another strip of land some thirty to thirty-five-feet wide which runs parallel to her east boundary line as established by the Allen & Hoshall survey. The additional strip of land was inclusive of property on which two houses had recently been constructed and for which the United States held mortgages and deeds of trust. As the United States was a defendant, the case was removed to the United States District Court for the Northern District of Mississippi. In 2005, the district court granted summary judgment in favor of the defendants which was affirmed by the Fifth Circuit Court of Appeals. The United States was subsequently dismissed as a party, and the case was remanded to chancery court for trial of the remaining claims.

¶ 15. Upon trial of this cause, the chancery court entered a judgment granting Mabel’s claim for ejectment and order confirming title. The chancery court directed Delta to remove all the above-mentioned infrastructure from her property.

STANDARD OF REVIEW

¶ 16. We defer to a chancery court’s findings, unless its decision “is manifestly wrong and not supported by substantial credible evidence, or unless an erroneous legal standard was applied.” Saliba v. Saliba, 753 So.2d 1095, 1098 (¶ 11) (Miss.2000). On questions of law, our standard of review is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990).

DISCUSSION

I. Adoption of the Rox-C-Sneed Subdivision Plat

¶ 17. Delta argues that because the Rox-C-Sneed subdivision plat was adopted by the City of Mound Bayou in 1947 and duly recorded in the land records of Bolivar County, a presumption of validity exists in its favor. Relying on Taquino v. City of Ocean Springs, 253 So.2d 854, 855 (Miss.1971) and Luter v. Oakhurst Assoc., Ltd., 529 So.2d 889, 894 (Miss.1988) for authority, Delta contends that the adoption of the subdivision plat by the City of Mound Bayou is presumptively valid, and that any party seeking to attack its validity has the burden to show that the action was arbitrary, carpricious, discriminatory, or beyond the legal authority of the Mayor and Board of Aldermen of Mound Bayou. Delta submits that Mabel failed to adduce evidence in this matter to rebut this presumption. Therefore, the Rox-C-Sneed subdivision’s plat should be declared valid, as well as all conveyances made thereafter. Also, Delta claims that the City of Mound Bayou is a necessary party to this action pursuant Rule 19 of the Mississippi Rules of Civil Procedure.

¶ 18. Both Taquino and Luter are distinguishable from the matter before this Court. Taquino dealt with an action by the Mayor and Board of Aldermen of Ocean Springs, as to whether land owners should be required to dedicate a portion of their property to allow the widening of an existing public street adjacent to a proposed subdivision. Taquino, 258 So.2d at 855. The supreme court found that, according to the official minutes of the city governing board for January 27, 1970, it was determined that the City of Ocean Springs did not require a fifty-foot right of way by the subdivision due to economical reasons and feasibility. Id. As was also reflected by the minutes, the City of Ocean Springs then approved the application of the plat for the subdivision. Id. None of the appellants appeared at the meeting; however, they objected to the action taken by the Mayor and Board of Aldermen on appeal to the circuit court, which thereafter affirmed the action taken by the City of Ocean Springs. Id. at 854. In affirming the circuit court’s judgment, the supreme court stated as follows: “The action of the City Governing Board is presumed to be valid. The appellants, in attacking that action, must show that it was arbitrary, capricious, discriminatory, or beyond the legal authority of the City Board.” Id. at 855 (citations omitted). The court held that the appellants did not meet their burden, and it found the action taken by the City of Ocean Springs in preliminarily approving the subdivision plat “was supported by substantial evidence, and was not arbitrary, capricious or discriminatory.” Id.

¶ 19. Luter involved a zoning issue. The City of Tylertown failed to have a zoning ordinance read aloud at a public meeting, and it did not have a roll call before its enactment. Luter, 529 So.2d at 894. The supreme court reiterated that “[t]he official action of the governing authorities of a municipal corporation in this state are presumed valid, albeit rebuttably so.” Id. at 894 (citations omitted). The Luter court explained:

What this means — and the point is critical in this case — is that those who would challenge the formal regularity of the prior act of a municipal corporation bear the burden of demonstrating affirmatively wherein the failures occurred. See City of Biloxi v. Cawley, 278 So.2d 389, 390 (Miss.1973); City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161, 163 (1908). No doubt as a practical matter proof of a negative may be difficult, particularly where a number of years have elapsed. Yet we regard the presumption vital in that otherwise untold scores of official actions may be invalidated, not because the board or agency failed of compliance, but because the draftsman of the minutes failed to use the requisite magic words. See Paine v. Underwood, 203 So.2d 593, 597 (Miss.1967).

Id. The supreme court concluded that the minutes of the Mayor and the Board of Aldermen’s meeting adequately reflected their intent, and the court held that this was “enough to raise a presumption of regularity shifting to the opponents the burden of affirmative demonstration wherein the [City’s] action failed [to comply] with essential formalities.” Id. at 895.

¶ 20. In the instant ease, we are without the minutes reflecting the City of Mound Bayou’s adoption of the Rox-C-Sneed subdivision plat in 1947, as both parties agree the minutes could not be located. Thus, we have no way of knowing whether the City’s action conformed to the procedural formalities required by law. See id. at 894 (“As a man’s will is invalid and ineffective if he fails to conform to the formalities of the statute, so a municipal ordinance is invalid if it has not been enacted according to procedural prerequisites.”). However, it is unnecessary for us to express whether such omission constitutes what the Luter court meant by “proof of a negative.” See id. Whatever presumptive validity might have existed with the description of the adopted plat’s west-boundary line, Mabel successfully overcame it by proving that the description was in error.

¶ 21. “[A] determination of the legal boundary between properties is a question of fact for the chancellor.” Kleyle v. Mitchell, 736 So.2d 456, 459 (¶ 8) (Miss.Ct.App.1999) (citing Farris v. Thomas, 481 So.2d 318, 318 (Miss.1985)). Delta filed no objection, as set forth under Mississippi Rules of Civil Procedure 53(g)(2), to the findings of the special master appointed by the chancery court to locate the true boundary line between the two properties. Therefore, Delta waived any objections it may have had with the factual conclusions submitted by the special master and accepted by the chancery court in this matter. Cuevas v. Kellum, 12 So.3d 1154, 1159 (¶ 21) (Miss.Ct.App.2009). The chancery court determined that the Rox-C-Sneed subdivision plat contained an improper course description, which Hooker relied upon in conducting its survey. The Allen & Hoshall survey, on the other hand, conclusively established Mabel’s east-property line. The court ultimately concluded that Mabel and her predecessors-in-title were the rightful owners of the strip of land in dispute.

¶ 22. This decision by the chancery court effectively means that the City of Mound Bayou, in 1947, adopted a subdivision plat which contained an erroneous legal description, encompassing Mabel’s east-property line. Because one may not subdivide and convey or dedicate land one does not own, we can confidently say that the City of Mound Bayou acted without legal authority in that instance, at least to the extent its action affected the preexisting rights enjoyed by Mabel and her predecessors-in-title. See, e.g., Eugene McQuillin, 11A The Law of Municipal Corporations § 33.12-70 (3rd ed.).

¶ 23. As to Delta’s contention that the City of Mound Bayou was a necessary party, we fail to see what interest, actual or mistaken, the City had with this strip of land. When this action began, either Delta or Mabel owned it. Based on our review of the record, the conveyance to Delta involved the unplatted portion of the Rox-C-Sneed subdivision, with no dedication provision for the City contained therein. See, e.g., Albright v. Baker, 213 Miss. 234, 238, 56 So.2d 703, 704 (1952). We do not find that the City’s absence in this matter prevented the chancery court from granting complete relief between Delta and Mabel. See M.R.C.P. 19.

¶ 24. This issue is without merit.

II. Res Judicata

¶ 25. Delta avers that pursuant Mississippi Code Annotated section 27-45-23 (Rev.2006), a conveyance to a purchaser at tax sales by the chancery clerk, after the period of redemption under law, vests in the purchaser a perfect title with the immediate right of possession. Thus, the final judgment entered by the chancery court in 1995 vested perfect title in Herman and in subsequent conveyances. Therefore, Mabel’s action should be barred by res judicata. We disagree.

¶ 26. First, not only was Mabel not made a party to that action, she clearly did not receive proper notice of it as required by Mississippi Code Annotated section 27-48-3 (Supp.2009). See, e.g., Curtis v. Carter, 906 So.2d 758, 759 (¶¶ 6-7) (Miss.2005) (affirming chancellor’s decision to set aside tax sale insofar as it pertained to those persons with ownership interest in the property who were without proper notice). Further, section 27-45-23 also states, “[n]o such conveyance shall be invalidated by any court except by proof that the land was not liable to sale for the taxes.... ” Mabel submitted ample evidence that her property has never been the subject of delinquent taxes; accordingly, this strip of land was not liable to sale for non-payment of taxes.

¶ 27. Mabel was not barred from asserting her ownership rights in this matter. This assignment of error is without merit.

III. Equitable Estoppel and/or Lach-es

¶ 28. Delta claims that a balancing of the equities in this matter clearly weighs in its favor, and submits that the chancery court erred when it rejected its defenses of laches and/or equitable estop-pel. Delta contends that before Mabel filed her action for injunction in August 1997, she had actual notice of the development project both by virtue of the initial survey that was conducted in April 1994 and via Beamon, who personally met with Mabel in March 1996 and discussed the project with her. Delta further asserts that the property at issue is valued at $800 and that a mandatory injunction requiring the removal of the infrastructure now in place would cost the company approximately $60,000 to carry out. In other words, the issuance of the injunction would cause Delta to suffer loss far greater than the loss Mabel would suffer if the injunction were not issued.

¶ 29. In Shattles v. Field, Brackett & Pitts, Inc., 261 So.2d 795, 797-98 (Miss.1972), the supreme court reiterated the rule regarding property rights and the issuing of injunctions pertaining to such rights:

The general rule is that a landowner is entitled to an injunction directing the removal of a trespassing structure on his land erected thereon by the owner of adjoining land. The facts that the aggrieved owner suffers little or no damage from the trespass, that the wrongdoer acted in good faith and would be put to disproportionate expense by removal of the trespassing structures, and that neighborly conduct as well as business judgment would require acceptance of compensation in money for the land appropriated, are ordinarily [not] reasons for denying an injunction. Rights in real property cannot ordinarily be taken from the owner at a valuation, except under the power of eminent domain. Only when there is some estoppel or laches on the part of the plaintiff, or a refusal on his part to consent to acts necessary to the removal or abatement which he demands, will an injunction ordinarily be refused.

¶ 30. Laches and equitable es-toppel are similar legal principles. Laches arises from a complaining party’s failure to assert a right or claim “for an unreasonable and unexplained length of time, under circumstances prejudicial to [the] adverse party.” Cannada v. Marlar, 185 So.2d 649, 651 (Miss.1966) (citation omitted). Equitable estoppel comes into play in situations where a party has changed his or her position in reliance upon the conduct or representation of another and as a result suffers detriment or prejudice caused by the change of position. PMZ Oil Co. v. Lucroy, 449 So.2d 201, 206 (Miss.1984) (citation omitted). What constitutes laches or equitable estoppel has been held to depend on the facts and circumstances of each particular case. See Cannada, 185 So.2d at 651 (discussing laches) and Bright v. Michel, 242 Miss. 738, 749, 137 So.2d 155, 159 (1962) (same, with respect to equitable estoppel). Therefore, a trial court’s decision to accept or reject either doctrine will not be disturbed on appeal when the decision’s factual findings are supported by substantial evidence. Cannada, 185 So.2d at 651.

¶ 31. On the question of whether Mabel should have been barred from her cause of action under the doctrine laches, we note that this particular defense has been viewed by our supreme court with disfavor in similar matters. In Clanton v. Hathorn, 600 So.2d 963, 966 (Miss.1992), before addressing the appellant’s laches claim on the merits, the court opined as follows:

The problem of laggardly landowners who ignore claims or encroachments over long periods of time has been addressed by the [L]egislature. Miss. Code Ann. § 15-1-13 (1972) is our familiar ten-year adverse possession statute. That act would seem to occupy the field. This would certainly seem the premise of our cases that laches is not a defense to an action if the plaintiff proceeds within the period of the applicable statute of limitations. Hans v. Hans, 482 So.2d 1117, 1121 (Miss.1986); Continental Oil Co. v. Walker, 238 Miss. 21, 34, 117 So.2d 333, 337-38 (1960); Griffith, Mississippi Chancery Practice, 344-45 (2d Ed.1950). It is difficult to imagine a case where we would credit a laches defense on an adverse claim to real property on grounds other than those set forth in the statute and cases reading [the] same. Of course, it is not necessary that we address so sweeping a point, it being sufficient that today’s is not such a case.

Cf. Pittman v. Currie, 414 So.2d 423, 428 (Miss.1982) (reiterating that Miss.Code Ann. § 15-1-17, which prescribes a two-year limitation to file suit to cancel tax titles following the period of redemption, does not apply when the tax sale is void and the owner has remained in possession).

¶ 32. That said, assuming arguendo that Delta’s theory has credence, we find no error with the chancellor’s decision to reject this claim on the merits. After considering the evidence submitted by both sides and hearing their respective arguments, the chancellor found that Mabel did not act with unreasonable delay in bringing her action. According to the chancellor, regardless of which point in time Mabel first learned of the development project, she had no idea at that time that the structures in question would be placed on her property. When Mabel discovered that Delta was claiming ownership to the strip of land she believed rightfully belonged to her, she acted as expeditiously as could be expected of a person in her situation to obtain the information necessary to protect her interests.

¶ 33. As to the inequitable loss Delta claims it will suffer by the mandatory injunction, such a result is a factor for the chancellor to take into consideration. However, it is not the controlling consideration on the question of laches or equitable estoppel. Cf. Bright, 242 Miss. at 749, 137 So.2d at 159 (addressing estoppel).

¶ 34. We note that Delta did not affirmatively raise the defense of equitable es-toppel in its pleadings; however, it was discussed at the hearing. Thus, we find Rule 15(b) of the Mississippi Rules of Civil Procedure controlling. On this question, we find no merit to Delta’s contention that Mabel should be estopped to complain of the encroachment. Nothing in the record remotely suggests that Delta changed its position in reliance upon Mabel’s conduct. Indeed, before construction began, Mabel told Delta not to interfere with her property. Once it became apparent to Mabel that Delta had plans to place the structures on her property, she expressly warned the company that there would be legal consequences if they proceeded. Delta disregarded her cautionary advice and continued with construction; Mabel followed through on her word, and she had Beamon arrested for trespassing.

¶ 35. Based on our review of the record, Delta received numerous indicators that should have given the company cause for concern in this matter. Apart from Mabel’s admonitions, Delta was put on notice by others who were familiar with the two properties that it was mistaken as to the true property line. The record even indicates that Hooker informed Delta that there might be a question with the Rox-C-Sneed subdivision plat. Yet, rather than exercise precaution, Delta proceeded forward. This issue is without merit.

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

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

      . The appellee’s name is spelled as Mable and Mabel in the record; however, according to the appellee, the correct spelling is Mabel.

      . Mabel later inherited the property from Holt; to avoid any confusion, it will hereinafter be referred to as Mabel’s property.

      . Herman is not related to Mabel.

      . Alfreta and Mabel, also of no relation, grew up together. Alfreta lived in a house located behind Mabel's property. According to Mabel, she and Alfreta walked to school together every day, which required them to walk across Mabel’s property, a portion of which included the disputed area.

      .According to the record, Herman was a board member of Delta at the time; Herman also served as alderman on the Mound Bayou City Council from 1970 to 2000.

      . Both Herman and Alfreta, eventually, were dismissed from the case.

      . Mabel's east-property line runs from the northeast corner of the property directly south to an old "railroad iron” which, according to the Allen & Hoshall survey, marks the southeast corner of her property. The west-boundary line of the Rox-C-Sneed subdivision is described as starting from the northwest corner of the northeast quarter of the southeast quarter of Section-T.-23N.-R.5 West. This corner lies in common with the northeast corner of Mabel’s east-property line. Instead of running due south, the Rox-C-Sneed subdivision's west-boundary line uses a southwest, one-degree, bearing. In his deposition, Evans indicated that drawing from the course run described by the Rox-C-Sneed subdivision plat results in a line ending eighteen feet west of the "railroad iron” found by Allen & Hoshall.

      . The district court found that Mabel's claim of title to the thirty-five-foot strip of land by adverse possession vanished when the land sold for taxes in 1988; thus, the defendants were entitled to judgment as a matter of law. As noted in the district court's memorandum order, the defendants did not dispute that Mabel held record title to the eighteen-foot strip of land and admitted that there was an encroachment thereof.