author: GRIFFIS, J., MYERS, P.J.,

text:
    George FORD, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-00673-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      Rabun Jones, Greenville, attorney for appellant.
    Office of the Attorney General by Stephanie Breland Wood, attorney for appel-lee.
    Before LEE, P.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. George Ford was convicted of manslaughter and sentenced to serve eighteen years in the custody of the Mississippi Department of Corrections. On appeal, Ford claims that the circuit court failed to provide proper instructions to the jury. We agree, and we reverse and remand for a new trial.

FACTS

¶ 2. On the night of May 17, 2008, in Shelby, Mississippi, Ford and his five year old son stopped at a convenience store to refuel his car and buy some groceries. Inside the store, Cassius Gallion approached Ford, and the two began arguing. Ford claimed the argument was over five dollars that he had refused to loan Gallion a few weeks earlier. After approximately five minutes of the argument, a friend of Gallioris intervened and escorted Gallion outside. According to Ford, Gal-lion’s friend made a threatening remark to Ford as he was leaving the store. He said: “This is not what you really want. Don’t come outside.”

¶ 3. Ford paid for his gas and groceries. A friend of Ford’s who worked at the gas station was afraid that a fight was going to occur in the parking lot, so she escorted Ford’s son out of the store and put him in the passenger seat of Ford’s car. As soon as Ford exited the store, Gallion approached him and resumed the argument. Ford went to his car and began pumping gas, and Gallion followed.

¶ 4. The convenience store was equipped with video surveillance. The video recording and corroborating testimony established that six or seven men surrounded Ford and his car. The evidence also indicated that there was yelling, but nothing in the record established what was said. Ford and his friend, the store employee, both testified they were afraid the group would turn violent. Ford also testified he feared that the group might rob him.

¶ 5. Among the group of men surrounding Ford was a friend of Gallioris named Maído Moore. Eventually, three of the men pulled Gallion away, and the crowd dispersed somewhat. At that point, Moore ran back toward Ford and threw one or two punches, which either struck both Ford and his friend or only struck Ford’s friend. Ford fell back into the driver’s seat of his car. He popped the trunk, ran back to it, and retrieved a handgun.

¶ 6. At this point, there is a dispute in the evidence. The video recording does not provide much clarity. Moore started running away from Ford at some point. It was either as soon as Ford popped his trunk, or it was not until Ford fired the first shot. There was also conflicting testimony on how the shots were fired. Two witnesses testified that the gun jammed after Ford had fired one or two shots and that Ford had to cock it again before it resumed firing. Ford denied the gun ever jammed. The police retrieved either two spent shell casings and three live rounds, or three spent shell casings and two live rounds, from the parking lot. The testimony also differed as to whether Ford aimed the gun at Moore as he fired. Gal-lion testified that he thought Ford was just trying to scare Moore away and that he was not actually trying to shoot him. Ford testified that he fired shots into the air not intending to hit anyone. Two other witnesses testified that Ford definitely aimed the gun at Moore.

¶ 7. The video recording, which captured still images once every two or three seconds, contained only three frames that were relevant. In one frame, Moore can be seen sprinting away from Ford’s car back toward the store. In the next frame, Moore is already out of the picture, and Ford is a considerable distance away from his car in the direction of Moore with his arm raised as if aiming a gun. The next frame shows Ford turning back toward his car.

¶ 8. Moore was struck by one of the shots in the left side of his torso. He fled to a nearby house, ran inside, and collapsed on the floor. He died shortly thereafter at the hospital. Ford got in his car and drove a short distance to Mound Bayou, Mississippi, where he made arrangements for family members to care for his son, and then he turned himself in to the police.

¶ 9. Ford was indicted for murder. The jury convicted Ford of manslaughter. It is from this judgment that Ford now appeals.

STANDARD OF REVIEW

¶ 10. “In determining whether error lies in the granting or refusal of various [jury] instructions, the instructions actually given must be read as a whole.” Wess v. State, 926 So.2d 930, 934 (¶ 20) (Miss.Ct.App.2005). “When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. (citations omitted). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Hager v. State, 996 So.2d 94, 97 (¶ 9) (Miss.Ct.App.2008) (citations omitted).

¶ 11. “A defendant is entitled to have instructions on his theory of the case presented, even though the evidence that supports it is weak, inconsistent, or of doubtful credibility.” Ellis v. State, 778 So.2d 114, 118 (¶ 15) (Miss.2000) (citation omitted). The defendant’s own testimony is enough of an evidentiary foundation to require the giving of a jury instruction. West v. State, 725 So.2d 872, 888 (¶66) (Miss.1998) (overruled on other grounds).

ANALYSIS

¶ 12. Ford argues that he is entitled to a new trial because the jury was not properly instructed. We find that the circuit court committed reversible error when it denied Ford’s instruction on justifiable homicide.

¶ 13. In Mississippi, justifiable homicide is defined as follows:

The killing of a human being ... shall be justifiable: ... (e) [w]hen committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him ... (f) [w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished....

Miss.Code Ann. § 97 — 3—15(1)(e)—(f) (Rev. 2006).

¶ 14. Ford offered a justifiable-homicide instruction. Ford’s proffered jury instruction reads as follows:

If you find from the evidence ... George Ford did shoot and kill Mario Moore ... while the said George Ford was resisting an attempt by Mario Moore and others to unlawfully kill George Ford, to rob him, or to commit any other felony upon him or that George Ford had reasonable grounds to apprehend a design on the part of Mario Moore and others acting in concert with him to commit a felony upon George Ford or to inflict some great bodily harm or personal injury upon the person of George Ford or any other human being and there existed an imminent danger of such design on the part of Mario Moore and or others acting in concert with him being accomplished, then the shooting and killing of Mario Moore by George Ford was justifiable and you shall find George Ford not guilty.

¶ 15. Ford argues this instruction was necessary to instruct the jury on three separate theories of his defense that were supported by the evidence and not covered by other instructions. Ford claims that: (a) he had a right to use deadly force to resist the commission of a felony against him, specifically robbery; (b) he had a right to use deadly force to protect his son if he reasonably feared that his son was in danger of serious bodily harm or death; and (c) he had a right to use deadly force if he reasonably feared serious bodily harm, death, or the commission of a felony from the entire group that surrounded his car, rather than from Moore alone.

¶ 16. The circuit court denied Ford’s proffered jury instruction and gave a jury instruction that read:

To make an assault justifiable on the grounds of self-defense the danger to the defendant, George Ford, must be either actual, present and urgent or the defendant, George Ford, must have reasonable grounds to apprehend a design on the part of the victim, Mario Moore, to kill him or do him some great bodily harm. And, in addition to this, he must have reasonable grounds to apprehend that there’s imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant, George Ford, acted.

This jury instruction limited the jury’s consideration to Ford’s right to protect himself — not his son — from death or serious bodily harm — not a felony — at the hands of Moore alone — not the group.

¶ 17. If a defendant proffers an instruction that correctly states the law, has a foundation in the evidence, and is not covered elsewhere in the instructions, it is error to deny that instruction. Hager, 996 So.2d at 97 (¶ 9). “A defendant is entitled to have instructions on his theory of the case presented, even though the evidence that supports it is weak, inconsistent, or of doubtful credibility.” Ellis, 778 So.2d at 118 (¶ 15). The defendant’s testimony alone is sufficient to establish the evidentiary basis for a jury instruction. West, 725 So.2d at 888 (¶ 66). It is the jury’s role to decide whether the evidence is credible. Furthermore, any serious doubt as to whether an instruction should be given should be resolved in favor of the accused. Brown v. State, 39 So.3d 890, 900 (¶ 37) (Miss.2010).

¶ 18. Recently, in Banyard, v. State, 47 So.3d 676, 678 (¶ 1) (Miss.2010), the Mississippi Supreme Court held it was reversible error for the circuit court to deny the defendant’s proffered jury instruction on duress. Demarious Banyard claimed he participated in the robbery and murder of a pizza-delivery man only out of fear that his accomplice, an older and stronger man, would seriously injure him or kill him if he did not participate. Id. at 679 (¶¶ 2-7). The only evidence in support of Banyard’s claim was his testimony and the testimony of one other witness. Id. at 682-88 (¶ 17). The supreme court held that, although the evidence supporting the theory was arguably weak, “the merits of Banyard’s duress claim are for a properly instructed jury to weigh.” Id. at 683 (¶ 18).

¶ 19. Here, there was evidence to support each of Ford’s three theories of defense. First, Ford testified that he was in fear of a robbery. He testified that the argument with Gallion was over five dollars that he had refused to loan Gallion. He also testified that, as the group congregated around his car, he thought they were going to rob him.

¶ 20. Second, Ford testified that he feared harm to his son. Further, the video recording was evidence that the entire event occurred in close proximity — perhaps ten feet — as his son sat in the car. See, e.g., Maye v. State, 49 So.3d 1124 (¶¶ 11-19) (Miss.2010) (proximity of infant daughter sufficient for jury instruction on self-defense and defense of others under section 97-3-15(1)(e)).

¶ 21. Third, the jury should have been instructed to consider the threat posed by the entire group that had congregated around Ford’s car. Certainly, seven men pose a far more serious threat than one man alone. In a similar case, the supreme court held it was reversible error to give a self-defense instruction that focused solely on the threat posed by an individual assailant who was part of a hostile mob. Wood v. State, 81 Miss. 408, 413, 33 So. 285, 286 (1903). As the supreme court explained:

The vice in this instruction is this: that it narrows the defendant’s right entirely too much, in testing his guilt in the killing of [the man], by what occurred between him and [the man] only, without having any reference to the other theory presented by the evidence for the defense that he shot [the man] supposing him to be one of the attacking group.

Id. at 412, 33 So. at 286.

¶ 22. Ford’s proffered justifiable-homicide jury instruction correctly stated the law, had a foundation in the evidence, and was not covered in other jury instructions. Therefore, we are required to reverse the judgment of conviction and remand this case for a new trial. As the supreme court reaffirmed: “[E]very accused has a fundamental right to have [his] theory of the case presented to a jury .... ,[and we] will never permit an accused to be denied this fundamental right.” Chinn v. State, 958 So.2d 1223, 1225 (¶ 13) (Miss.2007) (citations omitted).

¶ 23. For this reason, we reverse the judgment of the Bolivar County Circuit Court and remand this case for a new trial consistent with this opinion.

¶24. In addition, we note that Ford argues on appeal that the jury should have been instructed that his use of deadly force against Moore was presumptively reasonable under the Castle Doctrine. Mississippi Code Annotated section 97-3-15(3) (Rev. 2006) provides in pertinent part:

A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm ... if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered ... [an] occupied vehicle.

¶ 25. We note that the Mississippi Supreme Court recently decided Newell v. State, 49 So.3d 66 (¶¶ 24-34) (Miss.2010). The circuit court on remand should consider whether Newell requires Ford to receive an instruction under section 97-3-15(3).

¶ 26. Ford’s final argument on appeal is that the jury should have been instructed that it could find him not guilty if it found he had accidentally killed Moore. Ford proffered an instruction that tracked the language of the excusable-homicide statute, which provides:

The killing of any human being ... shall be excusable: (a) [w]hen committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent; (b) [w]hen committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation!)]

Miss.Code Ann. § 97-3-17 (Rev.2006).

¶ 27. Ford claims that while he was engaged in lawful self-defense, he accidentally shot Moore. Gallion testified that he thought Ford was only trying to scare Moore away, and Ford testified that he fired shots into the air to scare everyone away and never took aim at anyone. In other words, reasonably fearing death or serious bodily harm at the hands of Moore or the rest of the group, Ford grabbed his gun from the trunk and fired it, not intending to hit Moore but merely trying to scare everyone away. Therefore, Ford contends that it was simply an accident that Moore was fatally struck by one of the bullets.

¶ 28. “[A]n intentional act cannot be excused under the doctrine of accident and misfortune.” Montana v. State, 822 So.2d 954, 963 (¶ 35) (Miss.2002). In Montana, the defendant claimed to have fired his gun into the air to scare away a hostile group of people at a house party; however, one member of that group was fatally struck in the head. Id. at 962 (¶ 30). The supreme court upheld the circuit court’s denial of the defendant’s proffered jury instruction on excusable homicide. Id. The supreme court made clear that the question is whether the act, as opposed to the result, was intentional. Id. at 962 (¶ 33). If the act was intentionally done, there can be no defense of accident or misfortune. Id.

¶ 29. Here, we find the circuit judge was correct in denying a jury instruction on excusable homicide.

¶ 30. For these reasons, we reverse the judgment of conviction and sentence and remand this case for further proceedings consistent with this opinion.

¶ 31. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., LEE, P.J., IRVING, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. MYERS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.

MYERS, P.J.,

Dissenting:

¶ 32. I would not reverse the conviction and judgment in this case because I find no reversible error with the circuit court’s refusal to grant the jury instruction proposed by Ford on justifiable homicide. Based on my review of the record, the whole of the instructions fairly covered Ford’s self-defense claim and provided the jury a complete and accurate version of the law based upon the evidence produced at trial.

¶ 33. Ford requested and was denied the following justifiable-homicide instruction, identified in the record as jury-instruction D-5:

If you find from the evidence ... George Ford did shoot and kill Mario Moore ... while the said George Ford was resisting an attempt by Mario Moore and others to unlawfully kill George Ford, to rob him, or to commit any other felony upon him or that George Ford had reasonable grounds to apprehend a design on the part of Mario Moore and others acting in concert with him to commit a felony upon George Ford or to inflict some great bodily harm or personal injury upon the person of George Ford or any other human being and there existed an imminent danger of such design on the part of Mario Moore and or others acting in concert with him being accomplished, then the shooting and killing of Mario Moore by George Ford was justifiable and you shall find George Ford not guilty.

Instead, Ford was granted jury-instruction C-31, which is patterned on the Robinson instruction, the general self-defense instruction recommended by the supreme court in Robinson v. State, 434 So.2d 206, 207 (Miss.1983) (overruled on other grounds). Jury instruction C-31 reads as follows:

The Court instructs the jury to make an assault justifiable on the grounds of self-defense, the danger to the defendant, George Ford, must be either actual, present and urgent, or the defendant, George Ford, must have reasonable grounds to apprehend a design on the part of the victim, Mario Moore, to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant, George Ford, acts.

¶ 34. In addition to jury instruction C-31, Ford’s jury was provided jury instruction C-30, setting forth the elements of the crime of murder, and jury instruction C-34, setting for the elements of heat-of-passion manslaughter. Both instructions directed the jury to decide whether the State’s proof supported, beyond a reasonable doubt, the various elements to each crime. Through both instructions, the jury was informed that the State was required to prove beyond a reasonable doubt that Ford had not acted in self-defense and was told of its duty to acquit Ford if the State failed to meets its burden.

¶ 35. According to the majority, jury instruction C-31 limited the jury’s consideration of Ford’s justifiable-homicide defense to Ford’s right to protect himself, and it removed from the jury’s consideration the additional self-defense theories proposed by Ford. Those theories being: “(a) [Ford] had the right to use deadly force to resist the commission of a felony against him, specifically robbery; (b) he had a right to use deadly force to protect his son if he reasonably feared that his own son was in danger of serious bodily harm or death; and (c) he had a right to use deadly force if he reasonably feared serious bodily harm, death, or the commission of a felony from the entire group that surrounded his car, rather than from Moore alone.” (Maj. opinion at (¶ 15)).

¶ 36. I disagree.

¶ 37. During the jury-instruction conference, the discussion between the parties and the trial judge with regard to proposed jury-instruction D-5 dealt only with Ford’s assertion that he was fearful that a robbery was in progress at the time of the shooting. The record reveals the following colloquy, in pertinent parts, between the trial judge and Ford’s defense counsel:

BY THE COURT: So what evidence of robbery or attempted robbery?
DEFENSE COUNSEL: Your Honor, ... the only thing that I know that was presented, and I do recall [Ford] saying that he was told by Cash, [Cassius Gal-lion,] you don’t know me, I’ll take something from you.”
BY THE COURT: Okay. If someone says, I’m going to take something from you, does that give you the right to pull out a pistol and kill them?
DEFENSE COUNSEL: Not right then, no, Your Honor. But if they ... start to try to take it by force—
BY THE COURT: But don’t we have instructions to cover that part where he does have the right to pull out his gun and kill him. I think we have instructions covering that part. So D-5 is denied.

¶ 38. As an evidentiary matter, no where in Ford’s testimony, or anyone else’s, was it reported that Gallion said, “I’ll take something from you.” All that is in the record in support of Ford’s robbery assertion is a claim by Ford that when he first encountered Gallion inside the store, Gallion exhibited “bitterness” toward him over a “$5.00” loan Ford had refused Gal-lion a couple of weeks prior. An argument ensued between the two men inside the store, which appeared to end when James Townsend, according to Ford, “grabbed” Gallion and took him outside. The argument resumed outside the store, at the behest of Gallion, while Ford was standing beside his car pumping gas. According to Ford, “that’s when a group of guys, ... bum rushed the car, all of them shouting out, [Gallion] made the statement, you don’t know me, I tell you something.” Ford explained: “While I’m facing [Gal-lion], Mario Moore ... came and I don’t know what he had, but I know where he was at. I don’t know anything, I don’t know if he had a weapon. My life was threatened and I had a ... five year old child in the car, my life threatened. I had ... fear for me and him.” Later during Ford’s testimony, Ford was asked the following question by his defense counsel: “Now, when you fired, what was going through your mind when those people were around your car?” Ford replied: “They were fixing to rob me, you know, by any means necessary, they were going to get what they want.” When asked by defense counsel whether he said anything to the people standing around his car, Ford testified:

I asked them why were they around me; why were they surrounding my car. That’s what I asked them, you know. I had already, [sic] what’s /all’s intention on going over there, what y’all trying to do, you know. But by me talking to [Gallion], my back turned toward Mario when he made the attack. So I really don’t know what he had on him at the time. When he made the attack, I turned around, then I got my gun in the trunk, I lifted it up and got the gun out, you [know] what I’m saying. I cocked it, he still was there. Like I say, I don’t know what was going on in his mind and I shot, just turned around and shot two times in the air just like that.

¶ 89. Mississippi Code Annotated section 97 — 3—15(f) (Rev.2006) provides:

The killing of a human being by the act, procurement, or omission of another shall be justifiable ... [w]hen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.

(Emphasis added). The phrase “reasonable ground to apprehend,” as used in section 97-3-15(f) “implies ‘apparent danger[.]’ ” Dillon v. State, 18 So.2d 457, 457-58 (Miss.1944) (interpreting section 2218(f), Code 1942, which is identical to current section 97-3-15(f)). In Scott v. State, 203 Miss. 349, 353-54, 34 So.2d 718, 719 (1948), it was held:

[T]he term apparent danger, as applied in cases of homicide, means such overt demonstration, by conduct and acts, of a design to take life or do some great personal injury, as would make the killing reasonably apparently necessary to self-preservation or to escape great bodily harm. Section 2218(f), Code 1942, makes homicide justifiable[:] When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.

(Internal quotation omitted). “The actor’s apprehension of danger must be objectively reasonable before his homicide is justified.” Cook v. State, 467 So.2d 203, 207 (Miss.1985) (citing Robinson, 434 So.2d at 207). “Where the actor’s apprehension is only subjectively, in his or her own mind, reasonable, the homicide is ... manslaughter.” Id. The jury is the judge of the reasonableness of the actor’s belief, and the belief “must appear objectively real to a reasonable person of average prudence.” Jones v. State, 39 So.3d 860, 865 (¶ 28) (Miss.2010).

¶ 40. I find it difficult to conclude from the facts and circumstances attending this case that a rational juror, even while simulating those facts and circumstances as they may have appeared to Ford at the time, could have found in accordance with Ford’s belief that a robbery was in progress. Nevertheless, as the trial court found, jury instruction C-31 accurately addressed Ford’s robbery theory. The danger described to Ford’s jury through instruction C-31 is the same danger that characterizes the crime of robbery, and Ford’s jury concluded that no such danger was present in this case. Further, proposed instruction D-5 merely referred to the act of robbery in the abstract; thus, it had the potential of misleading the jury. Robbery, it must be remembered, is considered a crime against the person, not against property. Woods v. State, 883 So.2d 583, 588 (¶ 10) (Miss.Ct.App.2004).

¶ 41. With respect to Ford’s claim that he feared his son was in danger of serious bodily harm or death, there was insufficient evidence to support the reasonableness of such a claim. As Ford acknowledged during his testimony, the fracas that occurred around his vehicle involved him, not his son. And the fact that it occurred in close proximity to Ford’s son did not in and of itself justify Ford’s belief. Further, Ford indicated in his testimony that the danger he believed had confronted his son was due to the danger posed to him, the alleged presence of which was rejected by Ford’s jury.

¶ 42. Lastly, I do not find that the evidence in this case warranted an instruction to consider the threat posed by “others.” In Wood v. State, 81 Miss. 408, 413, 33 So. 285, 286 (1903), the case relied upon by the majority, the defendant shot and killed an individual who the defendant mistakenly believed was part of a hostile group of armed individuals who were in immediate pursuit of the defendant. Distinguishable from Wood there was no attacking group in this case; there was only Moore. Ford responded to Moore’s actions, and his alone.

¶ 43. For these reasons, I respectfully dissent.

      . The dissent’s assertion that, as a matter of fact, there was no attacking group is inconsistent with the record. There were several men that surrounded Ford at his car, and there was ample evidence that these men were allied with Gallion and hostile to Ford. One of the men threw a punch at Ford. In assessing the reasonableness of Ford’s response, it would be unrealistic and unfair not to consider the other men and only consider Ford and Moore in isolation.


source: Caselaw Access Project

author: ISHEE, J., CARLTON, J.,

license: Public Domain

text:
    Rotheleo DIXON, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-CP-00948-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.
    Rotheleo Dixon, appellant, pro se.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   ISHEE, J.,

for the Court:

¶ 1. On April 5, 2005, Rotheleo Dixon pleaded guilty to the crime of murder. He was sentenced to life in the custody of the Mississippi Department of Corrections. Dixon subsequently filed a pro se petition for sentence reduction with the Yazoo County Circuit Court; it was considered by the circuit court as a motion for post-conviction relief (PCR). Dixon’s PCR motion alleged that his guilty pleas had been involuntarily entered and that he had received ineffective assistance of counsel. After reviewing the motion and applicable records, the circuit court found that the PCR motion failed to comply with the statute of limitations set forth in Mississippi Code Annotated section 99-39-5(2) (Supp. 2010) and dismissed the motion. Aggrieved, Dixon now appeals.

STANDARD OF REVIEW

¶ 2. Circuit courts may summarily dismiss a PCR motion “if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Robinson v. State, 19 So.3d 140, 141-42 (¶ 6) (Miss.Ct.App.2009) (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)). This Court will not disturb a lower court’s dismissal of a PCR motion unless the court’s findings are clearly erroneous. Mann v. State, 2 So.3d 743, 745 (¶ 5) (Miss.Ct.App.2009). However, when questions of law are raised, we employ a de novo standard of review. Id.

DISCUSSION

¶ 3. Section 99-39-5(2) provides, in part, that a prisoner who has entered a guilty plea, has three years following entry of judgment on the guilty plea to file a PCR motion. Excepted from the three-year statute of limitations are situations in which the prisoner can show an intervening decision of the Supreme Court of Mississippi or of the United States that adversely affects his conviction or sentence, or when the prisoner has new evidence that was not reasonably discoverable at trial that would have caused a different outcome at the trial. Miss. Code Ann. § 99-39-5(2). Also, errors affecting fundamental constitutional rights are excepted from the procedural bars of the Uniform Post-Conviction Collateral Relief Act. Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010).

¶ 4. A PCR motion must be filed within three years following the entry of judgment of conviction. Johnson v. State, 923 So.2d 237, 238 (¶ 8) (Miss.Ct.App.2006). Failure to file within the period of the three-year statute of limitations procedurally bars the appeal of the dismissal of the motion. Id.

¶ 5. Dixon’s petition was filed on April 21, 2009, approximately four years after his conviction. Not only is Dixon’s appeal barred by the applicable statute of limitations, but he also has failed to reach his burden of showing that his motion was an exception provided by statute or involved a fundamental constitutional right. Although Dixon mentions in his brief that he was denied effective assistance, he has failed to plead this properly in his brief and, therefore, has failed to state any claim for which relief can be granted. Accordingly, this issue has no merit.

¶ 6. THE JUDGMENT OF THE YA-ZOO COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO COUNTY.

LEE AND MYERS, P.JJ., GRIFFIS AND MAXWELL, JJ., CONCUR. KING, C.J., IRVING, BARNES AND ROBERTS, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION.

CARLTON, J.,

concurring in result only:

¶ 7. I concur with the majority’s decision to affirm the trial court’s dismissal of Dixon’s motion for post-conviction relief. I write separately, however, to comment as to the majority’s citation to Rowland v. State, 42 So.3d 503 (Miss.2010) and a defendant’s ability to waive constitutional rights through a proper voluntary, intelligent, and knowing waiver. I also write to distinguish Rowland from the case at bar.

¶8. In the case at hand, Dixon filed a motion for a sentence reduction with the trial court, and the court treated this motion as a motion for post-conviction relief. In this motion, Dixon explained that the State had initially charged him with aggravated assault for setting his girlfriend on fire with a gasoline-type substance during an argument over cocaine. He also explained that the State later indicted him for murder because the victim died a month later from the burns sustained from the gasoline poured on her by Dixon. In his motion, Dixon requested that the trial court vacate his sentence or reduce his sentence to a lesser charge. He asserts that he received ineffective assistance of counsel because his counsel failed to “put forth effort” to get him a reduced charge and failed to inform him of the lesser offense of murder — manslaughter. He complains of his sentence arguing that his actions were not premeditated, and he argues that this offense constituted his first offense.

¶ 9. Notably, Dixon failed to provide any specific statement of facts in his motion for a sentence reduction that were not within his own personal knowledge, and he failed to attach any affidavits or material evidence in support of his claim of ineffective assistance of counsel. Therefore, his claim differs from Rowland in that Dixon failed to meet the threshold showing of an alleged error of a fundamental constitutional right.

¶ 10. In the present case, the trial court found that Dixon entered a free and voluntary plea to the crime of murder and that Dixon’s motion failed to comply with the statute of limitations as set forth in Mississippi Code Annotated section 99-39-5(2) (Supp.2010). I concur with the ruling of the trial court and further note that Dixon also failed to comply with Mississippi Code Annotated section 99 — 39—5(1)(e) (Supp. 2010), which requires “[t]hat there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice” when he failed to provide any supporting evidence, other than his own assertions, in support of his claim of ineffective assistance of counsel. Hence, Dixon failed to raise a proper claim of any error to ineffective assistance of counsel, and the trial court correctly found Dixon’s motion barred by the statute of limitations. In contrast with Rowland, Robert Rowland’s convictions on their face established a sufficient basis to support a claim of a violation of double jeopardy, and the Mississippi Supreme Court remanded Rowland’s motion for post-conviction relief to the trial court for an evidentiary hearing to determine if any error had occurred.

¶ 11. In Rowland, the supreme court held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Id. at 507 (¶ 12). While this is true, it should also be noted that a defendant may indeed choose to waive constitutional rights through a proper waiver that is voluntarily, intelligently, and knowingly made. Uniform Rule of County and Circuit Court 8.04 specifically identifies particular constitutional rights that the defendant must acknowledge and waive before a trial court may accept a plea of guilt. Rule 8.04(A) provides in pertinent part:

1. A defendant may plead not guilty, or guilty, or with the permission of the court, nolo contendere.
4. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the charge;
b. That the accused understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law;
c. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/her if (s)he is indigent.

URCCC 8.04. See Bolton v. State, 831 So.2d 1184, 1189 (¶¶ 19-22) (Miss.Ct.App.2002).

¶ 12. Consistent with Rule 8.04, in Myles, this Court recognized that a prerequisite for acceptance of a guilty plea in Mississippi is that a defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination. Myles, 988 So.2d at 488 (¶ 4). In addition, this Court acknowledged that a trial court may “disregard the movant’s own assertions when they are substantially contradicted by the court record of the proceedings that culminated in the guilty plea.” Id. at 440 (¶ 10). This Court further explained that “a post-conviction-relief petition must include ‘[a] specific statement of the facts which are not within the prisoner’s personal knowledge, how or by whom said facts will be proven, and affidavits of the witnesses who will testify and copies of documents or records that will be offered.’ ” Id. at (¶ 12) (citing Miss.Code Ann. § 99-39-9(l)(e) (Rev.2007)). In finding that John Myles failed to attach any affidavits to his motion for post-conviction relief to support his claims, this Court affirmed the trial court’s denial of his motion for post-conviction relief. Id.

¶ 13. Dixon, the defendant in the present case, like Myles, attached no affidavits or any other supporting evidence to his motion for post-conviction relief supporting his own assertions claiming that his guilty pleas were involuntarily entered and that he had received ineffective assistance of counsel. Hence, consistent with Myles and Mississippi Code Annotated section 99-39-5(l)(e), I affirm the trial court’s dismissal of Dixon’s motion for post-conviction relief as to his unsupported claims of ineffective assistance of counsel, and I concur with the court’s finding that Dixon failed to comply with the applicable statute of limitations.

      . In Rowland, no evidence existed that Rowland provided a waiver, much less a knowing and voluntary waiver, of his constitutional right against double jeopardy and thereafter received an illegal sentence. See Rowland, 42 So.3d at 504-06 (¶¶ 2-7).

      . For example, defendants may knowingly and voluntarily waive their right to self-incrimination and the right to remain silent. See Jones v. State, 948 So.2d 499, 504 (¶ 14) (Miss.Ct.App.2007); Barlow v. State, 8 So.3d 196, 205 (¶ 23) (Miss.Ct.App.2008). Defendants may similarly waive their right to a jury trial. See Wade v. State, 33 So.3d 498, 502 (¶ 13) (Miss.Ct.App.2009). A defendant may choose to waive their rights for various motives or reasons, including the hope of a reduced sentence. See Myles v. State, 988 So.2d 436, 439 (¶ 9) (Miss.Ct.App.2008).


author: MYERS, P.J.,

text:
    Marsha K. AUSTIN, Appellant v. The STATE of Mississippi, Mississippi Department of Mental Health, Cheryl Phillips and James Chastain, Appellees.
    No. 2009-CA-01656-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      E. Michael Marks, Jackson, Julie Ann Epps, Canton, attorneys for appellant.
    Louis G. Baine III, Jan F. Gadow, Jackson, Michelle Tolle High, Office of the Attorney General by Scott Stuart, Jackson, attorneys for appellees.
    Before MYERS, P. J„ IRVING and MAXWELL, JJ.
   MYERS, P.J.,

for the Court:

¶ 1. Marsha Austin filed suit against the State of Mississippi, the Mississippi Department of Mental Health, and two MDMH employees, Cheryl Phillips and James Chastain. We shall refer to the defendants collectively as MDMH. Austin alleged that she had been fired for complaining about understaffing and falsification of medical records at the Mississippi State Hospital at Whitfield, where she had worked as a nurse. Austin alleged wrongful termination, negligence and gross negligence, breach of contract and tortious breach of contract, negligent and intentional infliction of emotional distress, and slander and defamation. MDMH denied the substance of Austin’s complaint, maintaining that she had been fired for falsifying a timecard. MDMH also raised various defenses, including sovereign immunity. The Rankin County Circuit Court ultimately granted summary judgment to MDMH. Austin appeals.

STANDARD OF REVIEW

¶ 2. We review a trial court’s grant of summary judgment de novo. Treasure Bay Corp. v. Ricard, 967 So.2d 1235, 1238 (¶ 10) (Miss.2007). This Court “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citations omitted). The moving party has the burden of demonstrating that no genuine issue of material fact exists, and the nonmoving party must be given the benefit of doubt concerning the existence of a material fact. Id. “If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party’s favor.” Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). “A fact is material if it tends to resolve any of the issues properly raised by the parties.” Moss v. Batesville Casket Co., Inc., 935 So.2d 393, 398 (¶ 16) (Miss.2006) (citation and internal quotations omitted).

DISCUSSION

¶ 3. The only discovery in this case was propounded by MDMH. In her response to the motion for summary judgment and her brief on appeal, Austin relies entirely on her responses to MDMH’s interrogatories as evidence to defeat summary judgment. However, Austin’s interrogatory responses, as they appear in the record, are unsworn. Unsworn responses to interrogatories are not competent evidence to oppose summary judgment. Scales v. Lackey Mem’l Hosp., 988 So.2d 426, 434 (¶ 18) (Miss.Ct.App.2008).

¶ 4. It is well settled that to survive summary judgment, “[t]he non-moving party’s claim must be supported by more than a mere scintilla of colorable evidence; it must be evidence upon which a fair-minded jury could return a favorable verdict.” Luvene v. Waldrup, 903 So.2d 745, 748 (¶ 10) (Miss.2005) (quoting Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1213-14 (Miss.1996)). A plaintiff cannot survive a motion for summary judgment by relying on “unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda.” Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1356 (Miss.1990) (internal quotations omitted).

¶ 5. In her reply brief on appeal, Austin argues that a genuine issue of material fact may inferred from MDMH’s admissions in its answer. She notes that MDMH admitted that Austin had been employed as a nurse, had complained about understaffing on one occasion, and had been terminated. From these admitted facts, Austin argues she is entitled to the inference that she was wrongfully terminated for complaining about understaffing. Austin is correct that in resisting summary judgment she is entitled to the benefit of all reasonable inferences that can be drawn from the evidence. Rhaly v. Waste Mgmt. of Miss., Inc., 43 So.3d 509, 516 (¶ 22) (Miss.Ct.App.2010). However, that evidence must be sufficient “to remove the case from the realm of conjecture and place it within the field of legitimate inference.” Kussman v. V & G Welding Supply, Inc., 585 So.2d 700, 703 (Miss.1991). There is no evidence suggesting a causal relationship between the complaint and the termination; MDMH instead maintained that Austin was terminated for tardiness and falsifying a time-card. In fact, the allegation that Austin was terminated for complaining about understaffing was made in the complaint and specifically denied by MDMH in its answer.

¶ 6. We have thoroughly reviewed the record, and we can find no competent evidence sufficient to support any of Austin’s alleged causes of action. Consequently, we affirm the trial court’s grant of summary judgment to MDMH.

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

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

      . Austin also raised various claims under federal law, but she did not oppose summary judgment on those counts.


author: GRIFFIS, J.,

text:
    MOLD PRO, INC., Appellant v. Peggy A. ALFORD, Appellee.
    No. 2010-WC-00238-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.
    Jessie L. Evans, Canton, attorney for appellant.
    Michael Wayne Darby Jr., Batesville, attorney for appellee.
    Before KING, C.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. Mold Pro, Inc. appeals the judgment of the Circuit Court of Madison County denying its request for an out-of-time appeal. We find that Mold Pro’s request for an out-of-time appeal was not timely filed. Accordingly, the judgment of the circuit court is affirmed.

FACTS

¶ 2. Peggy Alford applied for workers’ compensation benefits following a back injury she sustained during her employment at Mold Pro. Mold Pro denied that the injury had occurred, and a hearing was held before the administrative judge. The administrative judge found that Alford met her burden of proof that she was injured during the course and scope of her employment, and Alford was awarded workers’ compensation benefits.

¶ 3. Mold Pro requested a review by the Mississippi Worker’s Compensation Commission. The Commission upheld the administrative judge’s award. Mold Pro then appealed the decision of the Commission to the Circuit Court of Madison County. On May 5, 2009, the circuit court found that the Commission’s decision was supported by substantial evidence and affirmed the award of benefits.

¶4. Neither Mold Pro nor its attorney received notice of the May 5, 2009, order from the circuit clerk. The record shows that the order was mailed to the Commission and Alford’s attorney but not Mold Pro. On June 19, 2009, Mold Pro’s attorney received a faxed letter from Alford’s attorney. The letter stated: “As you know, we have received an Order from the Circuit Court of Madison County, dated May 5, 2009. I also noted that the Employer/Carrier never appealed said Order.”

¶ 5. Counsel for Mold Pro claims that this letter was his first notice of the circuit court’s order. On July 17, 2009, Mold Pro filed a motion to reopen the time for appeal. At the hearing on the motion, Circuit Judge Samac Richardson decided to assign the case to Circuit Judge William E. Chapman III. Mold Pro asserts that this assignment was the result of a conflict on the part of Judge Richardson, but that assertion is unsupported by the record.

¶ 6. Judge Chapman denied Mold Pro’s request to reopen the time for appeal. He further dismissed the case with prejudice because Mold Pro had failed to appeal timely the decision of the circuit court.

STANDARD OF REVIEW

¶ 7. We review the circuit court’s decision to grant or deny a motion to reopen the time for an appeal under Rule 4(h) of the Mississippi Rules of Appellate Procedure for an abuse of discretion. Winter v. Wal-Mart Supercenter, 26 So.3d 1086, 1088 (¶ 6) (Miss.Ct.App.2009) (citing Prepaid Legal Servs., Inc. v. Anderson, 873 So.2d 1008, 1009 (¶4) (Miss.2004)).

ANALYSIS

¶8. Rule 77(d) of the Mississippi Rules of Civil Procedure requires the clerk to provide each party with notice of the judgment entered by the court, stating:

Immediately upon the entry of an order or judgment the clerk shall serve a notice of the entry in the manner provided for in Rule 5 upon each party who is not in default for failure to appear, and shall make a note in the docket of the service. Any party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal, nor relieve, nor authorize the court to relieve, a party for failure to appeal within the time allowed, except as permitted by the Mississippi Rules of Appellate Procedure.

As the rule states, the lack of notice from the clerk does not affect the time for appeal. Here, it is undisputed that Mold Pro failed to file timely an appeal of the circuit court’s May 5, 2009, order.

¶ 9. Mold Pro argues that the circuit court should have granted an out-of-time appeal because Mold Pro did not receive notice of the May 5, 2009, order. Rule 4(h) of the Mississippi Rules of Appellate Procedure provides:

The trial court, if it finds (a) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry and (b) that no party would be prejudiced, may, upon motion filed within 180 days of entry of the judgment or order or within 7 days of receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

¶ 10. Mold Pro correctly asserts that Rule 4(h) allows the circuit court to reopen the time for appeal in instances when, as here, a party who is entitled to notice of a judgment did not receive that notice within twenty-one days of the entry of the judgment. But what Mold Pro fails to recognize is that the motion to reopen the time for appeal must be filed within seven days of the party’s receipt of notice of entry of the judgment.

¶ 11. Mold Pro admitted in its motion to reopen the time for appeal that: “Appellant’s counsel first learned of the Court’s decision on June 19, 2009, when he received a fax memo from appellee’s counsel indicating, among other things, that the time for appeal of the Court’s decision had run.” Under Rule 4(h), Mold Pro had seven days from June 19, 2009, to file its motion to reopen the time for appeal, yet Mold Pro’s motion was not filed until July 17, 2009 — almost a month later.

¶ 12. Mold Pro asserts that the fax it received from Alford was not truly notice of the judgment entered by the circuit court because the actual judgment was not attached to the letter. However, Rule 4(h) requires that a party file a motion to reopen the time for appeal within seven days of receipt of “notice of the entry of a judgment or order.” Alford’s letter clearly informed Mold Pro that a judgment had been entered by the circuit court on May 5, 2009. Mold Pro’s attorney was then able to view the judgment contained in the circuit court file. Mold Pro had notice of the entry of judgment but failed to file timely its motion to reopen the time for appeal.

¶ 18. As this Court has held: “The requirements of M.R.A.P. 4(h) are obligatory rather than permissive. Timely notice of appeal is jurisdictional; where the appellant has not given proper notice this Court lacks jurisdiction to address the appeal.” Curry v. B.C. Rogers Poultry, Inc., 797 So.2d 265, 267 (¶ 11) (Miss.Ct.App.2001) (citations omitted). Accordingly, the circuit court’s order denying Mold Pro’s motion to reopen the time for appeal is affirmed.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ, CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

      . The transcript of that hearing is not a part of the record before this Court.


author: MAXWELL, J„

text:
    SUN VISTA, INC., Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2009-CC-00859-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      Nathan Lamar Prescott, Biloxi, attorney for appellant.
    Leanne Franklin Brady, attorney for ap-pellee.
    Before LEE, P.J., ISHEE and MAXWELL, JJ.
   MAXWELL, J„

for the Court:

¶ 1. David Alford signed an “independent contractor agreement” with Sun Vista, Inc. and began work on a construction crew. He later filed a claim for unemployment benefits with the Mississippi Department of Employment Security (MDES), reporting that he was an employee of Sun Vista for about two months during late 2006. The central issue before us is whether Alford was Sun Vista’s “employee” within the meaning of Mississippi Code Annotated section 71 — 5—11(J)(14) (Supp. 2010). Sun Vista does not contend that Alford was an independent contractor. Instead, Sun Vista contends that Alford was employed by someone else, Jose Medrano, who also performed construction work for Sun Vista.

¶ 2. The MDES Board of Review (Board) found that Alford satisfied the statutory criteria and was Sun Vista’s “employee.” The circuit court affirmed. Given the ample testimony and documentary evidence before the Board supporting that Sun Vista employed Alford, we are unable to say the Board’s decision was arbitrary and capricious. We also disagree with Sun Vista that “newly discovered evidence” warrants remanding this case. Thus, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶3. Sun Vista is a company based in Waveland, Mississippi, which builds and renovates homes. Alford signed an “independent contractor agreement” with Sun Vista and worked for them for approximately two months during late 2006. Sun Vista paid Alford $12 per hour for his work. Sun Vista issued Aford a 1099-MISC federal tax form for the year 2006, which shows that Sun Vista paid him $2,629 in compensation.

¶4. On April 24, 2007, Alford filed a claim for unemployment benefits with MDES claiming wages with Sun Vista. Ater an unsuccessful attempt to locate an account for Sun Vista, the Chief of the Tax Department of MDES (Chief) conducted an investigation to determine whether there had been an employer/employee relationship between Sun Vista and Alford. Following the investigation, the Chief issued a decision finding that Sun Vista had employed Alford.

¶ 5. On appeal, the administrative judge (AJ) held a telephonic hearing for the purpose of deciding this same question— whether an employer/employee relationship existed between Sun Vista and A-ford. MDES called Noreen Prouty, Status Specialist for the Tax Department, and Larry Ladner, MDES Tax Field Representative. Prouty testified that Alford was Sun Vista’s employee. She relied on her department’s investigation and various documents she had received, including an “independent contractor questionnaire” Aford had submitted to MDES. Ladner, who conducted an investigation to determine Aford’s status with Sun Vista, testified that he had recommended to the department that Aford was Sun Vista’s employee. Ladner based his recommendation on his conversations with Aford during the investigation. According to Ladner, Medrano was Alford’s “supervisor” or “foreman,” but his employer was Sun Vista. Though MDES had subpoenaed Aford, he failed to participate in the hearing. Medrano also did not testify.

¶ 6. Sun Vista called two witnesses, James R. Gurley, the secretary-treasurer of Sun Vista, who allegedly hired Aford, and Jeffrey Armstrong, who worked with Aford under Medrano’s supervision for a particular project. Gurley testified that Aford was Medrano’s employee rather than Sun Vista’s. And he denied that Sun Vista exercised control over Alford’s duties. Armstrong testified that Medrano supervised Aford, but Amstrong knew nothing about the nature of the relationship between Sun Vista and Alford.

¶ 7. The AJ affirmed the finding of the Tax Department that Aford was an employee of Sun Vista. Therefore, the AJ ordered that Sun Vista register with the Tax Department and pay unemployment insurance taxes on Alford and any other similarly situated employees. Sun Vista appealed to the Board. The Board adopted the AJ’s findings of fact and opinion and affirmed.

¶ 8. On appeal to the Hinds County Circuit Court, Sun Vista requested reversal of the Board’s decision or, alternatively, that the case be remanded based on “newly discovered evidence.” This “newly discovered evidence” included Medrano’s “independent contractor agreement” with Sun Vista and an “affidavit,” purportedly signed by Medrano but not notarized.

¶ 9. After conducting a hearing and reviewing briefs filed by the parties, the circuit court affirmed the Board’s decision. On appeal to this court, Sun Vista asserts the same issues it raised in the circuit court. First, Sun Vista argues the Board’s decision that Alford was its employee is arbitrary and capricious. Second, Sun Vista alternatively requests that we remand the case based upon “newly discovered evidence.”

STANDARD OF REVIEW

¶ 10. The standard of review for administrative appeals is limited. Miss. Employment Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 841 (Miss.1991). We will not disturb the Board’s decision unless it: (1)is not supported by substantial evidence, (2) is arbitrary or capricious, (3) falls beyond the scope of authority granted to the agency, or (4) violates a constitutional right. EMC Enter., Inc. v. Miss. Dep’t of Employment Sec., 11 So.3d 146, 150 (¶ 9) (Miss.Ct.App.2009). “[T]he findings of the Board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” Miss.Code Ann. § 71-5-531 (Supp. 2010). See also Williams v. Miss. Employment Sec. Comm’n, 395 So.2d 964, 966 (Miss.1981) (interpreting the word “evidence” used in section 71-5-531 as “substantial evidence”). “On appeal, ‘a rebut-table presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise.’ ” Miss. Dep’t of Employment Sec. v. Harbin, 11 So.3d 137, 139 (¶ 5) (Miss.Ct.App.2009) (quoting Sprouse v. Miss. Employment Sec. Comm’n, 639 So.2d 901, 902 (Miss.1994)).

DISCUSSION

I. Employer/Employee Relationship

¶ 11. According to Mississippi Code Annotated section 71 — 5—11(J)(14):

Sendees performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the department that such individual has been and will continue to be free from control and direction over the performance of such services both under his contract of service and in fact[.]

This section further instructs “the relationship of employer and employee shall be determined in accordance with the principles of the common law governing the relation of master and servant.” Id. Under common law, the following factors are considered in assessing whether an employer/employee relationship exists:

(1) The extent of control exercised over the details of the work;
(2) Whether or not the one employed is engaged in a distinct occupation or business;
(3) The skill requirement in the particular occupation;
(4) Whether the employer supplies the tools and place of work for the person doing the work;
(5) The length of time for which the person is employed;
(6) The method of payment, whether by the time or by the job;
(7) Whether or not the work is part of the regular business of the employer.

PDN, 586 So.2d at 841-42 (citing Miss. Employment Sec. Comm’n v. Plumbing Wholesale Co., 219 Miss. 724, 732, 69 So.2d 814, 818 (1954)).

¶ 12. “The primary factor is the right to or degree of control.” Id. at 842. Yet a worker “may be actually under slight supervision or control but still be an employee where the right of control existed and the service performed was a part of the regular business of the alleged employer.” Miss. Employment Sec. Comm’n v. Total Care, Inc., 586 So.2d 834, 837 (Miss.1991) (citing Miss. Employment Sec. Comm’n v. Logan, 248 Miss. 595, 600, 159 So.2d 802, 804 (1964)).

¶ 13. The test for employee status is considered on a case-by-case basis. It is a flexible inquiry with “no talismanic formula” to be mechanically applied. Total Care, 586 So.2d at 837-38. The burden of proof is on the party attempting to prove a worker was not an employee. PDN, 586 So.2d at 840.

A. Board’s Application of Common-Law Factors

¶ 14. The Board adopted the AJ’s opinion finding that an employer/employee relationship existed between Sun Vista and Alford under section 71 — 5—11(J)(14). Though the AJ did not perform a factor-by-factor analysis, his findings and opinion touched on many of the applicable factors.

¶ 15. First, the AJ found Sun Vista determined Alford’s duties. Alford was required to “dig the footings for a concrete driveway” and perform various other assigned duties. Second, Alford does not have a license to engage in the type work he performed and does not advertise his services to the public. Third, Sun Vista hired Alford to perform general construction work. Fourth, Sun Vista supplied Alford with some tools, while Alford himself supplied the rest. The AJ made no findings regarding whether Sun Vista supplied a place of work. Fifth, although the AJ made no findings regarding the length of employment, it is not disputed that Alford’s relationship with Sun Vista lasted for approximately two months during late 2006. Sixth, Sun Vista paid Alford $12 per hour for his services. Sun Vista did not require Alford to submit a bid. Seventh, the AJ noted that Alford performed construction labor, which was integral to the regular operation of Sun Vista.

¶ 16. Several other considerations led the AJ to conclude Sun Vista controlled or had a right to control Alford. Sun Vista set Alford’s work hours as Monday through Friday from 8:00 a.m. to 4:00 p.m. and required Alford to take a lunch break around 11:30 a.m. or 12:00 p.m. Also, Alford was prohibited from delegating his duties or hiring a substitute to perform his work. Alford did not bid on his work and was not allowed to determine his pay. Further, the AJ concluded that Sun Vista exercised control through Alford’s supervisor, Medrano.

¶ 17. Sun Vista contends these findings are arbitrary and capricious, and Alford was neither an independent contractor nor an employee of Sun Vista. Rather, it claims Alford was an employee of Medra-no, who allegedly was an independent contractor of Sun Vista. Sun Vista argues the proof is so overwhelming that Medrano actually employed Alford that it cannot be said that the Board’s decision is supported by substantial evidence.

¶ 18. We disagree. The Board’s decision is supported by ample evidence that Alford performed a service for Sun Vista for wages. Further, Sun Vista has not sufficiently shown Alford was free from its control and subject instead to Medrano’s control. See Miss.Code Ann. § 71-5-11(J)(14). The “independent contractor questionnaire” filled out for MDES by Alford was admitted into evidence. Alford’s questionnaire supports the findings of the Board, as does the testimony of MDES employee Ladner, who interviewed Alford. Also, Sun Vista’s representative, Gurley, admitted his company provided workers’ compensation coverage for Alford and did not require Alford to carry his own property or liability insurance. Though some of Gurley’s testimony contradicts the AJ’s findings, we are precluded from re-weighing the facts that were before the Board. We are instead limited to determining whether the Board’s decision was based upon substantial evidence. Henry v. Miss. Dep’t of Employment Sec., 962 So.2d 94, 104 (¶ 35) (Miss.Ct.App.2007). We find that it was.

¶ 19. While the “independent contractor agreement” between Sun Vista and Alford suggests that Alford was an independent contractor, the Mississippi Supreme Court has emphasized:

[T]he terms of the contract between the parties are only a part of the inquiry.... [E]ven though the contract gives no right of control, the worker will be found [an employee] if there is substantial control in fact.... The true test incorporates a consideration of all of the facts and the economic realities.

Total Care, 586 So.2d at 838. Here, there is substantial evidence supporting the Board’s decision that Sun Vista actually exercised control over Alford, despite the terms of the contract between them. Similarly, the Board found the “fact that the company issued [Alford] a Form 1099 does not change the fact that a master/servant relationship existed.” Again, this is but one consideration in the overall assessment of the employer’s control over the alleged employee’s means of performance. The weight of the evidence shows Alford was an employee rather than an independent contractor, as reflected in the AJ’s findings. Indeed, Sun Vista does not even contend that Alford was an independent contractor.

¶ 20. Finally, Sun Vista argues the facts before us dictate the same result as in Harbin, where we found that the Board’s determination that an employer/employee relationship existed was arbitrary and capricious. Harbin, 11 So.3d at 142 (¶ 16). The Harbin claimant worked for a satellite-television-installation company as an installer. Id. at 140- (¶ 9). He set his own hours, was paid by the job per installation, had no set time for his work schedule, and provided all of his own tools. Id. at (¶¶ 10-12). The installers used their own phones to contact customers to coordinate an installation time. Id. at 140^11 (¶ 12). They were also required to provide their own independent-contractor insurance, though the claimant had not purchased it because he was in a “bind.” Id. at 141 (¶ 12). The claimant also had obtained specialized training prior to working for the company. Id. at 141-42 (¶ 15).

¶ 21. In contrast, Alford was paid hourly. Evidence supported that Sun Vista set his work hours and provided some of his tools. There was no evidence of Alford’s interaction with customers. Alford was not required to provide his own insurance. Finally, Sun Vista hired Alford to perform general construction work, which required no specialized training. For these reasons, we find Harbin distinguishable from this case.

B. Hearsay Evidence

¶ 22. Sun Vista argues that the Board’s entire decision rests on uncorroborated hearsay testimony and does not satisfy the substantial-evidence standard. The supreme court has explained that “substantial evidence” means “such relevant evidence as reasonable minds might accept as adequate to support a conclusion or to put it simply, more than a mere scintilla of evidence.” Hooks v. George County, 748 So.2d 678, 680 (¶ 10) (Miss.1999) (internal quotations omitted). But the supreme court has held that “uncorroborated hearsay is not substantial evidence, even though hearsay is admissible in an administrative proceeding.” Williams, 395 So.2d at 966 (finding Board’s decision denying benefits based solely on an employer’s letter was not supported by substantial evidence).

¶ 28. We find this issue is procedurally barred for Sun Vista’s failure to object to the testimony when offered to the Board. See Pub. Employees’ Ret. Sys. v. Freeman, 868 So.2d 327, 330 (¶ 9) (Miss.2004). Procedural bar aside, we cannot overlook that Sun Vista’s representative, Gurley, provided direct testimony that Sun Vista issued a 1099 form to Alford, paid workers’ compensation insurance on Alford, and did not require him to provide his own property or liability insurance—all of which tend to undercut Sun Vista’s claim that Medrano employed Alford. Thus, we disagree with the notion that MDES’s case rests on uncorroborated hearsay.

¶24. For these reasons, we find the Board was not arbitrary or capricious in determining Alford was Sun Vista’s employee.

II. Remand

¶ 25. Sun Vista also asks this court to remand the case for consideration of “newly discovered evidence,” pointing to two documents. The first is labeled an “affidavit,” which bears the purported signature of Medrano but is not notarized. The so-called “affidavit” states among other things that Medrano employed Alford. The second document is an “independent contractor agreement” bearing the signatures of Medrano and Gurley. It is quite similar to the contract executed between Gurley and Alford.

¶ 26. This court has found Mississippi Rule of Civil Procedure 60(b) applicable to administrative law decisions. Herring Gas Co., Inc. v. Miss. Employment Sec. Comm’n, 944 So.2d 943, 949 (¶ 27) (Miss.Ct.App.2006). Rule 60(b) provides for relief from a final judgment or decision based upon the discovery of new evidence. A Rule 60(b) motion may only be granted when:

(1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; [and] (5) the evidence is such that a new trial would probably produce a new result.

Cuffee v. Wal-Mart Stores, Inc., 977 So.2d 1187, 1191-92 (¶ 18) (Miss.Ct.App.2007). We review the grant or denial of a Rule 60(b) motion for abuse of discretion. Id. at 1191 (¶ 14).

¶ 27. The proper course would have been for Sun Vista to file a Rule 60(b) motion, which it did not. Yet we need not examine the procedural defaults because Sun Vista cannot meet this standard.

¶ 28. Black’s Law Dictionary defines an affidavit as “[a] voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public.” Black’s Law Dictionary 62 (8th ed.2004). This Court has reasoned that an unsworn “affidavit” is “merely a piece of paper with the word ‘affidavit’ as its title.” Thomas v. Greenwood Leflore Hosp., 970 So.2d 273, 277 (¶ 19) (Miss.Ct.App.2007). Thus, a standard form affidavit that is not sworn “cannot create an issue of material fact” for the purposes of summary judgment. Id. The “affidavit” relied on by Sun Vista is not sworn, which renders its reliability questionable.

¶ 29. Sun Vista also seeks review of Medrano’s “independent contractor agreement.” This document is essentially the same agreement Alford signed with Sun Vista. We fail to see how Medrano’s purported contract with Sun Vista sheds light on Alford’s relationship with Sun Vista. The document might support (though certainly not determine) that Medrano was an independent contractor, but it in no way establishes Sun Vista’s claim that Medrano employed Alford.

¶ 30. We find the two documents produced by Sun Vista neither material nor likely to alter the outcome of the Board’s determination. Therefore, we find no abuse in the circuit court’s refusal to remand the case.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


text:
    Sam KAZERY, Appellant v. George WILKINSON, Appellee.
    No. 2009-CA-01391-COA.
    Court of Appeals of Mississippi.
    Feb. 1, 2011.

      Thomas M. Bryson, Jackson, attorney for Appellant.
    Vernon H. Chadwick, Jackson, attorney for Appellee.
    Before MYERS, P.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court:

¶ 1. This is an appeal of a' chancellor’s denial of a request for declaratory judgment. At issue is the validity of a lease extension for a parking lot located on Pas-cagoula Street in downtown Jackson, Mississippi. The plaintiff, Sam Kazery (Sam), appeals. We find no reversible error and affirm.

FACTS

¶2. On August 1, 1966, Mary Kazery Eyd (Mary) (the Lessor) entered a lease agreement with Courtesy Inns, Inc. (the Lessee). In the lease, the Lessor granted the Lessee “full and unrestricted use of the leased premises for the term of this lease, including any extensions thereof. ... ” The lease required the “net rentals to be paid by Lessee to Lessor,” in a monthly amount that escalated as the term was extended. The Lessee was obligated to pay ad valorem taxes and provide adequate liability insurance.

¶ 3. The initial term of the lease was for one year, with five renewal options:

FIRST OPTION: To be exercised on or before July 31, 1967, to extend the term for a period of twenty years....
SECOND OPTION: To be exercised on or before March 31, 1987, to extend the term for a period of ten years....
THIRD OPTION: To be exercised on or before March 31, 1997, to extend the term for a period of ten years beginning August 1, 1997, and ending July 31, 2007.
FOURTH OPTION: To be exercised on or before March 31, 2007, to extend the term for a period of ten years beginning August 1, 2007, and ending July 31, 2017.
FIFTH OPTION: To be exercised on or before March 31, 2017, to extend the term for a period of ten years beginning August 1, 2017, and ending July 31, 2027.

¶ 4. In 1967, the first option was exercised, and the lease term was extended through 1987. In 1985, Courtesy Inns assigned its interest to George Wilkinson. Thereafter, for over twenty years, Wilkinson made the monthly rental payments, paid the ad valorem taxes, and provided adequate liability-insurance coverage.

¶ 5. Mary’s interest in the property was transferred during this term. In 1986, Howard Ross was appointed by the Hinds County Chancery Court as the conservator for Mary. In an order, the chancellor authorized the conservator to convey the property to Mary’s son, Arnold Kazery (Arnold) or his designees. On November 10, 1986, Ross and Mary executed a warranty deed that conveyed the property to Arnold’s designees, his sons George Kaz-ery (George) and Sam. In 1987, George conveyed his interest to Sam. This deed was recorded in the land records in September 1990.

¶ 6. From 1987 through April 2007, Sam was the sole owner of the property. As such, he was the Lessor. Despite Sam’s actual ownership of the property and interest as Lessor, Wilkinson paid the monthly rental payment to Sam’s father, Arnold. Wilkinson also provided proof of insurance to Arnold, and Arnold was the named insured on the required insurance coverage. Wilkinson’s dealings with Sam were primarily about the payment of the ad valo-rem taxes.

¶ 7. At trial, Wilkinson explained his understanding of this arrangement. When the conservator was directed to convey Mary’s interest to Arnold or his designees, Arnold had a substantial tax lien filed against him. Since Mary wanted Arnold to have the property, it was arranged so that the property would be titled in Sam’s name, but Arnold would receive the rent. Wilkinson claimed that, because of this arrangement, he believed that Arnold was the owner of the property and the Lessor under the lease. Wilkinson also claimed that, in addition to rent and insurance, he understood that he had to provide the renewal notices to Arnold as well.

¶ 8. Sam claimed that Wilkinson either knew or should have known that Sam, not Arnold, was the owner of the property and the Lessor under the lease. In support, Sam offered three letters he had sent to Wilkinson that could have revealed his interest in the property. First, by letter dated January 15, 1987, Sam sent Wilkinson a letter that advised “[t]he above mentioned taxes are due by February 1, 1987. Your prompt remittance is appreciated. Please forward to: Sam Kazery....” Second, by letter dated January 4, 1990, Sam sent Wilkinson a letter that enclosed the 1989 tax statement, which listed the property in the name of “Eyd, Mary K, c/o Sam Kazery.” Third, by letter dated November 23, 1992, Sam wrote to Wilkinson as follows:

Attached herewith is a past due statement of taxes owed ... on the property which you lease from me on East Pasca-goula Street. As per our lease, you are obligated to pay these taxes. Hence, you are currently in contractual violation of our lease....
Since you are already in material [breach] of said contract, I do hereby request the following forthwith:
(1) Copies of proof of insurance on the property.
(2) Receipts and proof of payment on property taxes.
(3) Corporate papers for Courtesy Inn, Inc. and documents which specify transferral of lease to you personally-
Failure to supply this required information ... will force me to commence proceedings to redeem said property and render your lease null and void. No longer can I brook [sic] the stress which your neglect incurs; this ongoing problem must cease. You will be responsible for any damages as a result of your neglect.

In addition, Sam introduced as evidence the Hinds County tax receipt for tax year 1991 that indicated he was the owner of the property.

¶ 9. Despite these letters, Wilkinson continued to make the monthly rental payments to Arnold, and Arnold continued to be the named insured on the insurance policy. Sam offered no evidence of his objection or that this was improper.

¶ 10. The second option had to be renewed before March 31, 1987. The parties disputed how the second option was exercised. Wilkinson testified that he gave Arnold notice, which Arnold denied. Nevertheless, there was little dispute that the lease continued through 1997. Indeed, Wilkinson paid rent, paid the ad valorem taxes, and provided insurance coverage during this period of time.

¶ 11. The third option had to be renewed before March 31, 1997. Wilkinson sent notice of renewal to both Sam and Arnold. Thus, there was no dispute that the lease was extended through 2007. However, Wilkinson testified that he sent a letter to Sam, sometime in 1996 or 1997, which reads as follows:

Enclosed is a copy of the letter I sent to you twice via certified mail and you refused. A copy was received by your father, but I thought you might like to have one also. This renews my lease for another 10 years starting in August of this year.

The letter was introduced into evidence. Wilkinson testified that he sent it to “let [Sam] know that I ... [had] renewed with his father.”

¶ 12. The fourth option had to be renewed before March 81, 2007. Wilkinson claimed that he exercised this option in two letters sent to Arnold. Arnold testified that he put Wilkinson’s correspondence in the garbage.

¶ 13. First, by letter dated June 24, 2004, Wilkinson wrote to Arnold as follows:

Please be advised that I am renewing early my option to lease your lot on Pascagoula Street. This extends the lease through July 31, 2017.
My rent checks will continue to be sent by the bank to your account as we agreed.
... I am glad you are pleased with the way everything is being handled. I called my insurance company and asked that they send to you proof of insurance. If you don’t have this with in several days please call me.

Second, by letter dated March 2, 2006, Wilkinson wrote to Arnold as follows:

The lease on the Mary Eyd[] Kazery property on Pascagoula Street has options that extend it through July 2027. I have already exercised the option that carries our agreement through July 2017 (letter dated 6/24/04). This letter reconfirms that renewal. Also enclosed is a copy of our insurance policy naming you as being [the] insured. I trust all is well with you and your family....

Sam was not copied on either letter. Sam testified that Arnold never told him about either letter. Arnold continued to receive the monthly rental payments and be the named insured on the liability-insurance policy.

¶ 14. Sometime in early 2007, Sam was contacted by a developer who inquired about the possibility of purchasing the property.

¶ 15. On April 20, 2007, twenty days after the option deadline, Sam sent Wilkinson a letter, with a copy to Arnold, which reads:

Please forward all future rent payments directly to Mr. Sam Kazery.... Cancel your automatic electronic draft to Mr. Arnold Kazery’s account immediately. If another payment is sent to him I will consider it as a nonpayment of rent. Further, as per your lease, send me proof of liability insurance protecting my interest in this specific property, for the last 10 years. I would like the actual insurance policy for each and every year. After reviewing said coverage I will take under advisement what is considered reasonable coverage for this new age.
As you well know there’s an interested buyer and I am not so sure I want to sell at all. I may even fight Eminent Domain to keep the property. And of course as I told you before, I am concerned about my children. If you desire to keep the lease would you like to join in with me and hire joint counsel?
Please be aware that my estranged father does not represent me. And any communications with him of said property is for not. However, if you have a personal relationship with him and wish to chat then that is your business. However the property you rent from me, Sam Kazery, is strictly my business.

¶ 16. On May 1, 2007, Wilkinson sent Sam a letter, with a copy to Arnold, which reads as follows:

Your letter dated April 20, 2007 has been received. I have verified with the tax assessor that Arnold Kazery’s interest was transferred to you. The May rent check is enclosed with this letter. I have called my insurance carrier ... and they have added you as an additional insured to the $1,000,000 liability policy....
I would not like at this time to join with you in hiring joint counsel.

¶ 17. On July 12, Sam sent Wilkinson a letter that reads:

I note that you have not exercised your option to renew in the above referenced lease and therefore the lease will expire by its terms and ending July 31, 2007. The purpose of this letter is to inform you that I would be interested in discussing with you a continuation of your occupancy of the premises on a month to month basis provided that we can reach a satisfactory arrangement. Please contact me at your earliest convenience if you decide to discuss such an arrangement. If you do not wish to do so then I will expect you to vacate the premises at the end of the above referenced term....

¶ 18. By letter dated July 23, 2007, Wilkinson’s attorney responded to Sam and informed him that the option had been exercised by the 2004 and 2006 letters to Arnold. Sam did not respond to this letter. In the ensuing months, Wilkinson continued to occupy the property, pay rent (albeit to Sam), provide insurance coverage with Sam listed as the named insured, and otherwise comply with the terms of the lease.

¶ 19. In February 2008, Sam filed a pro se complaint in the Chancery Court of Hinds County. The complaint asked the chancellor to find that Wilkinson had failed to give proper notice of renewal and declare the lease void. Wilkinson filed an answer and counterclaim. The counterclaim asked the chancery court to declare that the options to renew were exercised timely and in good faith and that the lease is in full force until July 31, 2027.

¶ 20. After two days of trial, the chancellor entered an order and opinion that denied Sam’s claim for declaratory judgment, denied the requests for attorneys’ fees, and “deemed all other issues moot.” The chancellor did not grant the relief requested in Wilkinson’s counterclaim. Sam timely filed a notice of appeal from this judgment. Wilkinson did not file a cross-appeal.

STANDARD OF REVIEW

¶ 21. This Court will not disturb the findings of a chancellor when supported by substantial credible evidence unless the chancellor abused his or her discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002). Legal questions are reviewed de novo. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721 (¶ 5) (Miss.2002).

ANALYSIS

¶ 22. The chancellor identified the issue as whether “Wilkinson had knowledge, actual, constructive, or otherwise that Sam Kazery had become the true title owner of the subject property and thus should have given Kazery notice that he intended to exercise in future options.” The chancellor then found:

Kazery has brought forth no adequate evidence that he gave notice or that Wilkinson received knowledge of his September 1990 recorded deed. Regardless, with or without notice, Sam Kazery allowed Wilkinson’s notice to his father, Arnold Kazery to renew Wilkinson’s second and third renewal options which extended Wilkinson’s leasehold interest until July 31, 2007.

¶ 23. The chancellor then recognized the relationship between Sam, as the Lessor; Arnold, Sam’s father, who received the consideration for the lease (i.e. the monthly rental payments); and Wilkinson, as the Lessee, who had communications with both Sam and Arnold. Indeed, the chancellor acknowledged that Wilkinson paid rent for twenty years to Arnold, who both Sam and Arnold testified was never the owner of the property and, thus, was not legally entitled to the rental payments. The chancellor further acknowledges that, for many years, Sam asked Wilkinson to provide proof of insurance coverage; Wilkinson complied, and Sam did not complain about this arrangement. Thus, for twenty years, Arnold received the economic benefit of the lease and the insurance protection, not Sam. It was not until 2007 that Sam demanded that Wilkinson pay rent to Sam as the true owner of the property and place his name on the liability-insurance policy.

¶ 24. The chancellor’s opinion discerned that Sam was responsible for some if not all of Wilkinson’s confusion, which could have been avoided if Sam had immediately, in 1990, informed Wilkinson of his ownership interest and directed the rent be paid to him and the insurance policy cover him. The chancellor likewise considered the evidence that Wilkinson could or should have known that Sam was the owner of the property. As a result, the chancellor called upon the equitable powers of the chancery court to make this decision.

¶ 25. The question for this Court to consider on appeal is whether the chancellor committed reversible error when she determined that Wilkinson’s notices of the exercise of the fourth and fifth options were sufficient to extend the lease when such notices were delivered timely to Arnold.

¶ 26. Sam’s first argument relates to the waiver of the lease-notice provisions prior to March 31, 2007. The chancellor ruled that Sam “waived and surrendered his rights to object to the [second] 1987 renewal option notice.” For the 1987 renewal, the chancellor determined that Sam never notified Wilkinson of his ownership interest. The chancellor also ruled that Sam waived his right to object to the 1997 renewal-option notice for “different circumstances.” For the 1997 renewal, the chancellor recognized that Wilkinson could have been aware of Sam’s ownership interest since Sam’s name was listed as the property owner on the tax notice that Wilkinson had the obligation to pay each year. The chancellor determined that “even though Wilkinson provided Arnold Kazery notice of the third [1997] renewal and not Sam Kazery, Sam Kazery acquiesced and allowed Wilkinson to continue as lessee.”

¶ 27. Sam argues that the waiver of the second (1987) option and the third (1997) option does not constitute a waiver of his right to receive written notification for the fourth and fifth options. Indeed, this is correct. The chancellor cited Taranto Amusement Co. v. Mitchell Associates, Inc., 820 So.2d 726, 729-30 (¶ 13) (Miss.Ct.App.2002) for the legal proposition that waiver requires “full knowledge of a right existing, and an intentional surrender and relinquishment of that right.” In Taranto Amusement Co., this Court ruled:

Under Mississippi case law, a “waiver” presupposes a full knowledge of a right existing, and an intentional surrender or relinquishment of that right. It contemplates something done designedly or knowingly, which modifies or changes existing rights, or varies or changes the terms and conditions of a contract. It is the voluntary surrender of a right. To establish a waiver, there must be shown an act or omission on the part of the one charged with the waiver fairly evidencing an intention permanently to surrender the right alleged to have been waived.

Id. The Court held that, in a lease with successive options to renew, when the lessor failed to object to an improper renewal for one option, he did not per se waive his right to insist on proper renewal for subsequent options. In other words, waiver with respect to one option is not a waiver with respect to all. “The reasoning behind demanding exact compliance with the terms of the [renewal] option including the notice provisions is that the Lessor is bound to grant the additional term while the Lessee is free to accept or reject it.” Id. at 729 (¶ 11) (citation omitted).

¶ 28. Here, the chancellor correctly applied this rule. The chancellor determined that even though Sam might have waived his rights under the notice provision and acquiesced to improper renewals in 1987 and 1997, which was contested by the parties, this fact would not operate as a waiver of his right to receive proper renewal notice in 2007 for the fourth or fifth option. The chancellor correctly determined that, in order to rule in favor of Wilkinson, she had to find Sam waived his right to the 2007 notice.

¶ 29. The proper analysis of the notice provision begins with the language of the lease:

Notice of election to exercise each option to extend the lease shall be made in writing and shall be given by United States mail, addressed to Lessor, her heirs, executors, or assignees, at Lessor’s address last known to Lessee, and posted not later than midnight of the dates set out above for expiration of the respective options.

¶ 30. Sam obtained sole ownership of the property in 1987 and was the sole record owner of title when the deed from his brother was recorded in 1990. Thus, in 1990, at the latest, Sam became “the Lessor” and was entitled to receive the notice of extension. Likewise, he was then entitled to receive the monthly rental payments and be covered by the liability-insurance policy.

¶31. Despite his legal status as “the Lessor,” Sam neither expressly informed Wilkinson of his ownership interest, the need to pay Sam rent, nor list Sam as the named insured on an insurance policy. Instead, for approximately twenty years, Wilkinson made rental payments to Sam’s father, Arnold, and Arnold was listed as the named insured on the insurance policy. The chancellor noticed that the parties’ course of dealing included Arnold as a fundamental and integral part of the lease arrangement and the parties’ business dealings. Ultimately, the chancellor’s ruling was based on her interpretation of parties’ correspondence about the renewal of the 2007 option.

¶ 32. To prove his notice of extension, Wilkinson presented the two letters he had sent to Arnold. The June 24, 2004 letter states: “[P]lease be advised that I am renewing my option to lease your lot on Pascagoula Street. This extends the lease through July 31, 2017. My checks will continue to be sent by the bank to your account as we agreed.” The second letter, dated March 2, 2006, states: “[T]he lease on the Mary Eyd[ ] Kazery property on Pascagoula [SJtreet has options that extend it through July 2027. I have already exercised the option that carries our agreement through July 2017 (letter dated 6/24/04). This letter reconfirms that renewal.”

¶ 33. After these letters, Wilkinson continued to submit the monthly payments to Arnold. Sam neither objected nor instructed Wilkinson otherwise.

¶ 34. On April 20, 2007, after the option deadline, Sam sent Wilkinson a letter. In this letter, Sam first demanded that Wilkinson cease paying rent to Arnold and begin paying rent to him. Likewise, this letter was the first time Sam demanded that Wilkinson list Sam as the named insured on the liability-insurance policy. However, the letter also states:

As you well know there’s an interested buyer and I am not so sure I want to sell at all. I may even fight Eminent Domain to keep the property. And of course as I told you before, I am concerned about my children. If you desire to keep the lease would you like to join in with me and hire joint counsel?
Please be aware that my estranged father does not represent me. And any communications with him of said property is for not. However, if you have a personal relationship with him and wish to chat then that is your business. However the property you rent from me, Sam Kazery, is strictly my business.

(Emphasis added).

¶ 35. Wilkinson’s letter of May 1, 2007, responded to Sam and enclosed the May rental payment. This was the first rental payment ever made to Sam. It also indicated that Wilkinson did not want to hire joint counsel to sell his interest. Sam’s response, a letter dated July 12th, indicated that he believed Wilkinson did not renew the lease and asked that he either renegotiate the lease or vacate the property.

¶ 36. The chancellor determined that Sam had waived his right to notice. In fact, the chancellor determined that ‘Wilkinson had been giving improper notices for years which [Sam] substantially ignored until the prospect of having a lucrative real estate buyer was at hand.” The chancellor then ruled that he had waived his right to receive proper renewal notices in 2004 and 2006 when he asked Wilkinson to share in the cost of hiring joint counsel to consider the sale of their interests in the property.

¶ 37. We agree that under Taranto Amusement Co., Sam did not waive his right to receive notification under the lease. However, Wilkinson clearly established that he properly and timely extended the fourth option by exercising it prior to March 31, 2007, when he sent notice to the person he believed to be the owner and the person he had made rental payments to for twenty years. Had Sam timely informed Wilkinson of his ownership interest and assignment of the lease as late as 1990, then he certainly would have been the proper and only person to receive the notice. He did not, so he cannot now complain. We find no other authority that would convince us that the chancellor erred in this decision.

¶ 38. The chancellor also cited Koch v. H & S Development Co., 249 Miss. 590, 622, 163 So.2d 710, 724 (Miss.1964), for the following legal proposition:

[Wjhere an option to renew is expressly conditioned upon a request therefor or notice thereof, it is generally held, in the absence of equitable considerations, that such notice must be given, or the right of renewal cannot be enforced.... [Tjhere are two exceptions when the renewal clause of a lease need not be strictly complied with to prevent a forfeiture, namely, (I) Waiver ..., and (II) where the lessee is entitled to and can obtain relief from his failure to give the notice required by the renewal provisions, (1) where by reason of compelling circumstances the failure to give notice results not from lessee’s own ignorance or negligence, but (2) from accident, fraud, surprise, or mistake; (3) and the forfeiture will result in a real hardship to lessee, (4) but will do little or no harm to the lessor.

(Citations omitted). The chancellor then ruled:

This court is persuaded that such compelling circumstances require equitable considerations. Even though Wilkinson knew or should have known, from 1992 on, that Sam Kazery was the true owner of the subject property, if all rents were paid to Arnold Kazery, insurance was held for Arnold Kazery’s benefit, and if correspondences were being sent to Arnold Kazery and Sam Kazery still had not objected to such things, this court deems it equitable to look closely at the circumstances to determine whether the 2004 and 2006 renewal notiee[s] should be deemed proper. We will begin with exception II. If Wilkinson had properly inspected the tax statement for the name change of the title owner to Sam Kazery in 1991, he would have determined that Sam Kazery was the true owner of the subject property. At most, however, Wilkinson’s oversight of such could be considered just that, an oversight, mistake or he could have simply done a cursory review of the tax statement and overlooked the change.

¶ 39. Here, after considering the record and the chancellor’s findings, we recognize that the chancellor determined that Wilkinson was entitled to an equitable exception to the requirement of strict compliance with the renewal clause because of “compelling circumstances.” As compelling circumstances, the chancellor determined that Wilkinson should have known that Sam was the Lessor. Nonetheless, the chancellor determined that for the twenty years Sam was the property owner and “the Lessor,” but Sam allowed Wilkinson to pay the rent to his father, Arnold.

¶40. The chancellor also determined that, in his first correspondence after the renewal deadline of March 31, 2007, Sam wrote to Wilkinson; but he did not mention Wilkinson’s failure to renew. Rather, Sam demanded that Wilkinson stop paying rent to Arnold and begin paying the rent to him and that he be listed as the insured on the property. Further, Sam stated: “If you desire to keep the lease, would you like to join in with me and hire joint counsel?” The chancellor found it significant that Sam spoke of Wilkinson “keep[ing] the lease,” which, if Sam was going to insist on proper renewal, would have expired by its own terms on July 31, 2007.

¶ 41. Further, the chancellor found that the invitation to hire joint counsel was significant, in that there would be no need to include Wilkinson in fighting eminent domain or negotiating with the prospective buyer unless Sam acknowledged the validity of Wilkinson’s continuing leasehold interest. The chancellor also found it important that Sam did not attempt to remove Wilkinson from the land after July 31st but continued to include Wilkinson in negotiations with the prospective buyer, receive the rental payments without returning each payment, and allow Wilkinson to pay the insurance and taxes on the property.

¶ 42. Although we may have i'eached a different result if we had been the chancellor, under our defei’ential standard of review, we find that: the chancellor’s ruling was supported,by substantial, credible evidence; she did not abuse her discretion; her decision was not manifestly wrong or clearly erroneous; and she did not apply an erroneous legal standard.

¶ 43. For these reasons, we find no reversible error and affirm the judgment of the chancery court.

¶ 44. THE JUDGMENT OF THE CHANCERY COURT OF HINDS COUNTY IS AFFIRMED. 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., CONCURS IN RESULT ONLY.