author: MAXWELL, J.,

text:
    R.A.S. JR., K.S., A.S., V.S. and M.S., Appellants v. S.S., Appellee. S.S., K.S., A.S., V.S. and M.S., by and through their Joint Legal Guardian and Next Friend, S.S., Appellants v. R.A.S. Jr., Appellee.
    Nos. 2009-CA-01603-COA, 2009-CA-01809-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.
    John Christopher Cox, Cleveland, attorney for appellants.
    John Mark Nettles, William Charles Bell, Ridgeland.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. R.A.S. Jr. (“Matt”) argues the chancellor wrongly denied his request for an accounting of S.S.’s (“Anna”) use of child-support payments. He also alleges the chancellor violated his due-process rights by restricting him from presenting evidence on his modification claim. Anna appeals from a different order, challenging the chancellor’s handling of her request for expenses, specifically those for the children’s transportation and school uniforms.

¶ 2. We do not reach the merits since the chancellor failed to address all of the contested issues. Because additional unresolved claims remain and the chancellor did not enter a final, appealable order, we are without jurisdiction and must dismiss.

FACTS

¶ 3. Matt and Anna were divorced in 1998 based on irreconcilable differences. The chancellor approved the parties’ child custody and property-settlement agreement. He incorporated the terms of this agreement into the final judgment. Both parties were awarded joint legal custody of their six children, and Anna was given primary physical custody. Matt was required to pay $6,900 per month in child support. The chancellor also required Matt to maintain policies for life, health, and dental insurance for the benefit of the children, and to pay all private school tuition costs.

¶ 4. In 2004, Matt filed a modification action, seeking to decrease his child support payments. Soon after, Anna filed an affidavit with the Greenwood Police Department accusing Matt of molesting two of their children. Matt was initially charged by indictment with two counts of gratification of lust. Both counts were eventually disposed of in 2007 when the State nolle prossed the indictment in part based on insufficient “corroboration to support continued prosecution.”

¶ 5. The next month Matt filed a motion for an accounting of Anna’s use of his child-support payments. The motion was purportedly filed on behalf of the children as “their next friend and joint legal guardian.” In May 2008, Matt filed an amended petition for modification seeking to reform the divorce decree’s original provisions for both child support and custody. On June 23, 2008, the chancellor held a motion hearing. Without hearing evidence, he held from the bench: “I’m going to leave the primary physical custody as it is under the prior order. I’m going to leave the joint legal as it is.” But the chancellor left Matt’s modification request unresolved. The chancellor made clear: “I’m not here today to decide that issue.... I’m not going to address those motions today as to whether or not they meet the legal standard.”

¶ 6. On January 15, 2009, the chancellor entered a written order denying Matt’s request for an accounting. But he reserved ruling on the modification action. Matt then filed a motion for a new trial. About six months later, Anna filed a “Petition for Assessment of Expenses,” seeking to have Matt pay various expenses under the terms of the original divorce decree. On July 22, 2009, the chancellor held a hearing on (1) Matt’s motion for a new trial and (2) Anna’s request for expenses.

¶ 7. The chancellor entered two written orders. In the first, he denied Matt’s motion for a new trial. His second order reflected his denial of Anna’s request for reimbursement for the children’s school uniform costs but did not resolve the children’s transportation costs. The parties appealed from these two written orders.

¶ 8. On appeal, Matt claims the chancellor erred by (1) denying a motion for accounting of child-support payments and (2) not allowing him to present evidence in support of his modification claim in violation of his due-process rights. Anna contends the chancellor erred by refusing to order Matt to pay for the children’s school uniforms and reasonable transportation costs.

¶ 9. Because the chancellor did not enter a final, appealable judgment, we are without jurisdiction to address the merits of the parties’ claims. We confine our analysis to the issue of jurisdiction.

DISCUSSION

¶ 10. When reviewing jurisdictional issues, our standard is de novo. Calvert v. Griggs, 992 So.2d 627, 631 (¶ 9) (Miss.2008). We must examine the finality of a chancellor’s order on our own initiative. M.W.F. v. D.D.F., 926 So.2d 897, 899 (¶ 4) (Miss.2006) (citing Williams v. Delta Reg’l Med. Ctr., 740 So.2d 284, 285 (¶ 5) (Miss.1999)).

¶ 11. Parties may only appeal from a final judgment unless otherwise provided by law. Miss.Code Ann. § 9-3-9 (Rev.2002); Miss.Code Ann. § 11-51-3 (Rev.2002). See also M.W.F., 926 So.2d at 899 (¶4); Walters v. Walters, 956 So.2d 1050, 1053 (¶ 8) (Miss.Ct.App.2007). “A final, appealable, judgment is one that adjudicates the merits of the controversy which settles all issues as to all the parties and requires no further action by the lower court.” Anderson v. Anderson, 8 So.3d 264, 270 (¶ 18) (Miss.Ct.App.2009) (quoting Walters, 956 So.2d at 1053 (¶ 8)) (emphasis added and quotations omitted). The purpose behind this rule — sometimes called the final-judgment rule — has been -summarized as follows:

The ... rule minimizes appellate court interference with trial court proceedings, reduces the ability of a litigant to wear down an opponent with a succession of time-consuming appeals, and enables the appellate court to view the case as a whole and avoid questions which may be mooted by the shifting fortunes of trial combat.

Walters, 956 So.2d at 1053 (¶ 8) (quoting Nygaard v. Getty Oil Co., 877 So.2d 559, 561 (¶ 11) (Miss.Ct.App.2004)). Perhaps the most important function of the final-judgment rule is to prevent piecemeal appeals. Cf. Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 203, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (interpreting federal statutorily derived final-judgment rule and explaining policy rationales behind it); Reeves Constr. & Supply, Inc. v. Corrigan, 24 So.3d 1077, 1083 (¶¶ 16-17) (Miss.Ct.App.2010). Allowing piecemeal appeals from various trial court rulings would undercut the efficient adjudication of controversies and needlessly consume judicial resources. See Cunningham, 527 U.S. at 203-04, 119 S.Ct. 1915.

¶ 12. Exceptions to the final-judgment rule exist. First, Mississippi Rule of Appellate Procedure 5 permits appeals from interlocutory orders under certain circumstances. But here the parties neither requested nor were granted permission to proceed with an interlocutory appeal. Second, parties may appeal from a proper Rule 54(b) judgment. Corrigan, 24 So.3d at 1083 (¶¶ 16-17). But a trial judge may only enter a Rule 54(b) judgment disposing of less than all claims between the parties “upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). There is no Rule 54(b) certification here.

¶ 13. With no exception applicable, we must discern whether the orders appealed from in this case conform to the final-judgment rule. A common sense application of the rule leads us to conclude the chancellor did not enter a final, appeal-able judgment.

¶ 14. At the June 23, 2008 motion hearing, the chancellor made clear several times that he would not rule on the modification matter until a later date. He stated plainly: “I’m not here today to decide that issue.... I’m not going to address those motions today as to whether or not they meet the legal standard.” Although the chancellor denied Matt’s request for an accounting, the January 15, 2009 written order shows he still did not make a final ruling on the modification matter:

[Matt’s] request that the court modify custody and allow [Matt] to enroll the minor children in a boarding school known as the “Webb School” in Tennessee is hereby denied at this time. Consistent with the court’s separate Order requiring [Anna] to engage in parental counseling ... the court will monitor the minor children’s parenting by [Anna] and their living situation, with custody modification being an option that the court may consider at a future date. The court will review its rulings regarding custody and boarding school in December of 2008 at a date and time to be agreed upon by the parties, their respective counsel and the guardian ad litem.
All other issues and claims previously raised by the paHies in this action should be continued to a date and time to be set by the court upon agreement of the parties and counsel.

(Emphasis added). The order also lacks any finding on Matt’s request for a downward modification of child support payments.

¶ 15. Matt requested a new trial. He claimed, as he now does, that the chancellor erred in refusing to allow him to present evidence in support of his modification action. But we cannot address the validity of Matt’s argument since the chancellor did not rule on the custody and child-support issues.

¶ 16. The chancellor later signed an agreed order setting oral argument on Matt’s motion for a new trial. After hearing arguments on July 22, 2009, the chancellor from the bench made clear that he had not previously ruled on the modification action. The chancellor stated:

[T]he Court is satisfied that the order entered on January 28, 2009, leaves open the issues to which [Matt] attempts to complain of today for the Court to hear another date. Specifically ... the Court said all other issues and claims previously raised by the parties in this action should be continued to a date to be set by the Court upon agreement with the parties and counsel. The CouH notes in reading this order entered January 8, 2009, nowhere does it deny the relief sought by [Matt] relative to the modification.

(Emphasis added). The chancellor also found no due-process violation had occurred and that his prior order “was prop-i erly entered[.]” These comments from the bench evince that the chancellor did not rule on Matt’s request for a modification. Nor did he decide whether a material change in circumstances had occurred. The chancellor later entered a written order denying Matt’s motion for new trial commenting only that it was “not well taken.”

¶ 17. At the July 22, 2009 hearing, the chancellor also heard arguments on Anna’s request for expenses. The chancellor denied from the bench Anna’s request for reimbursement for school uniform costs. As to her request for transportation expenses, the chancellor required Matt to determine the necessity of upgrading one of the children’s 1998 Toyota Camry. The chancellor conditionally found that once Matt had selected a reasonably priced replacement for the Camry, or decided not to purchase a replacement, the chancellor would “re-address” the issue, unless Anna were to concede Matt’s decision was reasonable. The chancellor stated, “I will need some proof on that.” In the subsequently entered written order, the chancellor found that a competent mechanic should examine the Camry and determine “if it is roadworthy and safe or needs to be upgraded.”

¶ 18. We also note that the chancellor’s written order contains various conditional rulings on Anna’s request that Matt furnish one-half the cost of their daughters’ car insurance. Although the chancellor addressed Anna’s request for certain expenses concerning the daughters’ vehicles, his orders left several disputed issues undecided.

¶ 19. The Mississippi Supreme Court has found the final-judgment rule applicable in domestic-relations cases. See M.W.F., 926 So.2d at 899 (¶ 4). In M.W.F., the chancellor granted a fault-based divorce, but did not resolve the other contested issues of child custody and support, property division, and alimony. Id. These unresolved issues led the supreme court to find the chancellor’s judgment was not final. Id. at 899-900 (¶¶ 4-5). The supreme court dismissed the case for lack of appellate jurisdiction. Id. at 900 (¶¶ 5-7). Our supreme court has also held that parties may not appeal from a temporary order. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995).

¶ 20. The chancellor’s orders here were not final. We fully recognize that child-custody decisions are always subject to modification until the children’s emancipation. And no judgment entered is final in the sense of ending the case until that point. However, that the case involves custody modification does not eliminate the requirement that the chancellor enter a final, appealable judgment. Absent proper Rule 54(b) certification or the supreme court’s permission to proceed on an interlocutory appeal, which are both lacking here, piecemeal appeals are disallowed.

¶ 21. The chancellor clearly deferred ruling on contested issues, which he had not revisited when the parties appealed. Because we find the chancellor did not enter a final, appealable judgment, we dismiss this appeal for lack of jurisdiction.

¶ 22. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE PARTIES.

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

      . Because this case involves allegations of sexual abuse, the parties names remain confidential.

      . The parties' separate appeals were consolidated.

      . This amount was reduced during June and July when Matt kept the children more often. The agreement also provided for a reduction conforming to the child-support guidelines upon each child’s emancipation.

      . We note that this written order was actually entered after December 2008, but the court’s findings related to the hearing held June 23, 2008.

      . We note that Matt's request for child-support modification was conditioned on the chancellor granting a change in custody.

      . It appears this date is wrong. The chancellor was apparently referencing the order which was dated January 8, 2009, and file stamped January 15, 2009.

      . Anna labels her claims a “cross-appeal.” We find it is actually an appeal of a separate order, which this court has consolidated with Matt's appeal. Because her appeal, like Matt’s, was not from a final judgment, we need not address whether her appeal could survive on its own independent jurisdictional footing.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Shannon JOHNSON and Sashaye Johnson, Appellants v. CITY OF QUITMAN, Mississippi, Appellee.
    No. 2010-CA-00850-COA.
    Court of Appeals of Mississippi.
    July 19, 2011.

      Linda Ann Hampton, attorney for appellants.
    Michael Jeffrey Wolf, Jackson, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On February 6, 2009, Shannon Johnson and her daughter, Sashaye Johnson, filed suit in the Clarke County Circuit Court against the City of Quitman (City) and Officers Hank Gandy and Cathy Cameron (collectively the Officers), individually and in their capacity as Quitman Police Officers. Johnson asserted that the City and the Officers were liable for injuries sustained by Johnson from an assault by Johnson’s ex-husband, Daniel Nicholson, as a result of their failure to arrest Nicholson. Johnson alleged that the Officers’ conduct in failing to arrest Nicholson was in reckless disregard for Johnson’s safety and violated Mississippi Code Annotated section 99-3-7(3) (Rev.2007).

¶ 2. Ultimately, the Officers were dismissed from the action, and Johnson does not raise this dismissal in her appeal. The City filed a motion for summary judgment, arguing that it was entitled to immunity pursuant to the Mississippi Tort Claims Act (MTCA). See Miss.Code Ann. §§ 11-46-1 to 11-46-23 (Rev.2002 & Supp.2010). After a hearing on the merits, the trial court found that the City was entitled to the immunity provided for actions relating to police protection. Johnson now appeals, asserting the following issues: (1) the trial court erred in finding that the Officers did not act with reckless disregard to Johnson’s safety, and (2) the trial court erred in finding that the Officers did not falsify police records.

FACTS

¶ 3. Johnson and Nicholson were divorced in 2005. The divorce decree contained an order permanently restraining Nicholson from having any contact with Johnson. On or about February 17, 2008, the Officers responded to a disturbance call at Johnson’s house in Quitman, Mississippi. Nicholson was in front of Johnson’s house threatening to harm Johnson and her family. Nicholson was not arrested, but he was ordered by the Officers to leave. Officer Cameron stayed at the house until Nicholson departed. On February 20, 2008, Nicholson returned to Johnson’s home, where he proceeded to beat Johnson and stab her with a knife. Nicholson also stabbed Sashaye.

STANDARD OF REVIEW

¶ 4. In reviewing a trial court’s grant of summary judgment, this Court employs a de novo standard of review. Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (¶ 13) (Miss.1998). Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). This Court will consider all of the evidence before the trial court in the light most favorable to the non-moving party. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995). The party opposing the motion “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The entry of summary judgment is mandated if the non-movant “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial, and the moving party is entitled to judgment as a matter of law.” Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987). This Court also reviews the proper application of the MTCA de novo. City of Jackson v. Brister, 838 So.2d 274, 278 (¶ 13) (Miss.2003).

DISCUSSION

I. RECKLESS DISREGARD

¶ 5. Johnson’s first issue on appeal concerns whether the Officers acted with reckless disregard to her and her daughter’s safety. Athough the MTCA waives sovereign immunity for tort actions, it also prescribes certain exemptions from this statutory waiver under which a governmental entity retains its sovereign immunity:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury....

Miss.Code Ann. § 11—46—9(1)(c) (Supp.2010).

¶ 6. The Mississippi Supreme Court has held that “reckless disregard” under Mississippi Code Annotated section 11-46-9(l)(e) (Supp.2010) “embraces willful and wanton conduct which requires knowingly or intentionally doing a thing or wrongful act.” Turner v. City of Ruleville, 735 So.2d 226, 230 (¶ 19) (Miss.1999). “Reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” Miss. Dep’t of Pub. Safety v. Durn, 861 So.2d 990, 995 (¶ 10) (Miss.2003)(quoting Maye v. Pearl River County, 758 So.2d 391, 394 (¶ 19) (Miss.1999)).

¶ 7. In a similar situation, the Mississippi Supreme Court held that there was “no evidence that the officers intended for harm to follow their decision not to arrest, nor is there evidence establishing a conscious indifference to the consequences of their actions.” City of Laurel v. Williams, 21 So.3d 1170, 1176 (¶ 21) (Miss.2009). In that particular case, the officers failed to arrest the victim’s boyfriend after responding to prior domestic disturbances. Id. at 1173 (¶ 10). The boyfriend returned later that same night and murdered his girlfriend. Id. at 1173 (¶ 12). In the case at hand, Nicholson was not arrested, but he was ordered to leave the premises. Furthermore, Officer Cameron stayed at the scene until she was certain Nicholson had left the premises. Nicholson came back to Johnson’s house approximately three days later and stabbed Johnson and her daughter.

¶ 8. Johnson has presented no evidence suggesting that the Officers intended for harm to follow their decision not to arrest Nicholson. There is no evidence that the Officers’ conduct was willful or wanton. Therefore, we find that the City was entitled to immunity as provided for actions relating to section 11—46—9—(l)(c). This issue is without merit.

II. FALSIFICATION OF POLICE RECORDS

¶ 9. In her other issue on appeal, Johnson argues that the Officers attempted to conceal their wrongdoing by falsifying their records to reflect the following: Nicholson was at Johnson’s house on February 11 rather than February 17, and Johnson had asked them not to arrest Nicholson. However, Johnson has failed to support this contention with anything other than mere allegations. This issue is without merit.

¶10. THE JUDGMENT OF THE CLARKE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

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


author: ISHEE, J.,

text:
    In the ESTATE OF George W. MACE, Deceased: Patty M. Mace Stewart and Lynette Winston O’Neal, Appellants v. Patricia Hayes GARDNER, Appellee.
    No. 2010-CP-00878-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Patty M. Mace Stewart, appellant, pro se.
    Lynette Winston O’Neal, appellant, pro se.
    R. Louis Field, Vicksburg, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, J.
   ISHEE, J.,

for the court:

¶ 1. Patty Mace Stewart and Lynette O’Neal (grand-nieces) filed suit in the Hinds County Chancery Court, challenging the last will and testament of their great-uncle, George William Mace (Mace), through the administratrix of his will, Patricia Gardner (Gardner). The grandnieces claimed that Mace improperly received a portion of family land when their great-grandfather, George Mace Sr. (George Sr.), passed away over sixty-five years ago. Because of this invalid transfer of property in which Mace received more than his rightful share, the grand-nieces claimed that the transfer of the land to beneficiaries of his will was invalid.

¶ 2. Gardner filed a motion for summary judgment, asking the chancery court to dismiss the action. The chancery court granted the motion and dismissed the case with prejudice, finding that the grandnieces lacked standing to challenge their great-uncle’s will and failed to present a claim upon which relief may be granted.

¶ 3. The grand-nieces now appeal, arguing: (1) the chancellor erred by granting summary judgment, because the fraud that was committed when George Sr. died intestate over sixty-five years ago tolled the statute of limitations; and (2) the chancellor erred by dismissing the case with prejudice, because the lesser sanction of dismissal without prejudice was available and should have been executed.

¶ 4. Because the statute of limitations expired years ago, this cause of action is clearly time-barred. Accordingly, we affirm the chancery court’s judgment.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 5. This case concerns a will dispute that arose from the death of the Mace family’s patriarch, George Sr., who died in 1943. In 1890, years before he died, George Sr. purchased 238 and 3/4 acres of land in Hinds County, Mississippi. Over a period of years after 1890, George Sr., along with his children, constructed homes on the property and engaged in selling some of the timber for profit. They also received income from mineral leases on the property.

¶ 6. George Sr. died intestate in October 1943. His wife predeceased him, as did one of his sons, George Mace Jr. (George Jr.), who died in 1939. George Sr. had eight children, with three different mothers. His children were Virgie Mace, Atwood Mace, Annie Mace Wallace, Illinois Mace, Pattie Rea Mace (Pattie), Roosevelt Mace, George Jr. and George William Mace. At the time of his death in 1943, George Sr. also had eleven grandchildren, all of whom were George Jr.’s children: Stanford B. Mace (Stewart’s father), Velma Mace Burkes, Clara Mace Winston (O’Neal’s mother), Luevester Mace Hayes (Gardner’s mother), Roscoe Peter Mace, Queen Ester Mace Jackson, Virgil Mace, Mynetta Mace Smith, Aileen Mace Brooks, Ethel Elaine Mace, Robert Earl Mace, and Huey Prince Mace.

¶ 7. Upon George Sr.’s death, the chancery court appointed Pattie, one of George Sr.’s daughters, to be administratrix of the estate. On July 14, 1944, Pattie filed a final accounting of George Sr.’s estate. The accounting stated that Pattie had made due and legal publication of notice to creditors in the Hinds County Gazette weekly newspaper, which circulated the notice four times during July and August 1944. The notice stated that the creditors had six months to prove and probate their claims. The final accounting also stated that George Sr.’s “sole and only heirs at law” were his seven remaining children. Pattie did not include George Jr.’s eleven children, although they were all adults.

¶ 8. No claims were probated against the Estate of George Sr. Thus, all of his personal and real property passed to his seven surviving children. George Jr.’s children did not inherit anything from George Sr.

¶ 9. Over the years, George Sr.’s children all passed away. When each child died, his or her portion of the family land received from George Sr.’s estate passed to the remaining brothers and sisters. None of George Sr.’s remaining children had children of their own or spouses.

¶ 10. The youngest child of George Sr., Mace, passed away on February 20, 2009, in Hinds County, Mississippi. Mace prepared his Last Will and Testament on February 10, 2003. In his will, Mace named his brother, Theodore Roosevelt (Roosevelt), as executor and Gardner as successor executrix. Roosevelt predeceased Mace on March 10, 2005. Mace did not update his will after his brother passed away. Gardner was Mace’s caretaker until his death, and during his later years, Gardner had power of attorney over Mace’s bank accounts and financial assets.

■ ¶ 11. In his will, Mace left all of his real and personal property to his brother, Roosevelt. The will also included a “Secondary Disposition,” which distributed Mace’s property to Ethel Mace and Queen Esther Jackson (his nieces by George Jr.), Gardner (his great-niece by Luevester Hayes), Shirley Thompson, Patti R. Patterson (who predeceased Mace), Cynthia Wells (who predeceased Mace), Nita Reed (who predeceased Mace), Loreen Cross Toliver, and Rosetta Cross Gladney. Neither Stewart nor O’Neal were included in Mace’s will. Gardner offered Mace’s last will and testament to probate in the chancery court on May IB, 2009. The court appointed Gardner as executrix and authorized the issuance of letters testamentary to her.

¶ 12. Before the will was probated, O’Neal filed for a restraining order and an injunction against Gardner on March 23, 2009, to prohibit Gardner from selling any of the timber or gravel on the real property owned by Mace, and also to stop Gardner from distributing any of Mace’s personal property. O’Neal claimed that she had standing to contest Gardner’s actions because she was Mace’s grand-niece and, thus, a lawful heir. Stewart also filed a similar petition for injunction and restraining order against Gardner on September 18, 2009, claiming that she had standing as Mace’s grand-niece and lawful heir.

¶ IB. The petitions stated that the grand-nieces sought to protect Mace’s “rightful heirs,” and included Mace’s nieces and nephews (George Jr.’s remaining children): Stanford Berry Mace, Velma Mace Burks, Clara Mace Winston, Luevester Mace Hayes, Roscoe P. Mace, Queen Ester Mace Jackson, Mynetta Mace Smith, Aileen Mace Moore, Robert Earl Mace, Ethel Elaine Mace, and Huey Prince Mace. However, the grand-nieces did not amend the petitions to include this list of “rightful heirs” as parties to the suit. Stewart also filed a petition to contest Mace’s will, which was nearly identical to her petition for a temporary restraining order and injunction.

¶ 14. Gardner answered O’Neal’s and Stewart’s petitions on September 22, 2009, by stating that the petitions failed to state a claim for which relief could be granted and should be dismissed. Gardner also asserted that O’Neal and Stewart should be sanctioned under Rule 11 of the Mississippi Rules of Civil Procedure because the allegations in the petitions were “false,” “frivolous,” and “filed for the purpose of harassment.”

¶ 15. Gardner also filed motions for summary judgment on September 24, 2009, against both of the grand-nieces, and she filed a motion to consolidated the two cases, which the chancellor granted on January 7, 2010. During the summary-judgment hearing, the grand-nieces both argued that they were fraudulently excluded from Mace’s will because an oral promise had been made upon George Sr.’s death that George Sr.’s property would descend to them after the surviving children of George Sr. had all passed away. However, no evidence was submitted to support their oral assertions.

¶ 16. The chancery court gave the grand-nieces ten days to file their respective briefs. Gardner filed her brief on April 9, 2010, and Stewart filed hers on April 7, 2010. O’Neal failed to submit a brief or respond to the motion for summary judgment. The chancery court granted summary judgment in favor of Gardner on May 19, 2010. In its final order, the chancery court stated that no genuine issues of material fact were presented because neither grand-niece had raised any issue of Mace’s testamentary capacity or undue influence. Because O’Neal and Stewart were grand-nieces of Mace, they were not real parties in interest per Rule 17(a) of the Mississippi Rules of Civil Procedure. As such, the grandnieces lacked standing to contest their great-uncle’s will.

STANDARD OF REVIEW

¶ 17. We review de novo a chancery court’s grant or denial of a summary judgment. Williams v. Williams, 43 So.3d 517, 520 (¶ 12) (Miss.Ct.App.2010). The evidence is viewed in the light most favorable to the non-moving party. Id. (citation omitted). If no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law, then summary judgment is appropriate. Id.

DISCUSSION

I. Statute of Limitations

¶ 18. The grand-nieces argue that the chancellor erred by granting summary judgment in favor of Gardner, because the fraud that was committed when George Sr. died intestate over sixty-five years ago tolled the statute of limitations. The grand-nieces claim that Pattie committed fraud when she served as administratrix of George Sr.’s estate in 1944 by intentionally “hiding” the eleven known heirs of George Jr. from the court. None of George Jr.’s children received any portion of their grandfather’s estate upon George Sr.’s passing. Thus, they argue the property that Mace attempted to distribute in his will was invalid.

¶ 19. We find this argument unconvincing. The statute of limitations for challenging the administration of an estate is four years after the qualification of an administrator. Miss.Code Ann. § 15-1-25 (Rev.2003). Pattie probated George Sr.’s estate in 1944. When George Sr. died, his eleven grandchildren by his deceased son, George Jr., were all adults. Yet none of George Jr.’s children challenged the distribution of the property at that time, despite the grand-nieces’ admission that the grandchildren were aware that Pattie did not include them in the distribution of property.

¶ 20. An administratrix has an affirmative duty to disclose to the court “the existence of known potential heirs and claimants.” Smith ex rel. Young v. Estate of King, 501 So.2d 1120, 1123 (Miss.1987). Because of this affirmative duty, the grand-nieces contend that Pattie’s nondisclosure constituted concealed fraud, which tolled the statute of limitations. Miss. Code Ann. § 15-1-67 (Rev.2003).

¶21. To toll a statute of limitations based upon fraud, a plaintiff must prove: “(1) that the defendant ‘engaged in affirmative acts of concealment,’ and (2) despite investigating with due diligence, the plaintiff was unable to discover the claim.” Nygaard v. Getty Oil Co., 918 So.2d 1237, 1242 (¶ 22) (Miss.2005) (citations omitted). The grand-nieces admit that all of George Jr.’s children lived on the family land in question after George Sr. had died and were aware of the probate of his estate. The grand-nieces provided no evidence to prove that Pattie concealed the distribution of George Sr.’s estate, or that George Jr.’s children were unable to discover the transfer of property.

¶ 22. We find the grand-nieces’ argument that Pattie committed concealed fraud is without merit. Since any alleged fraud was not concealed, the statute of limitations was not tolled. Thus, there are no genuine issues of material fact, and Gardner was entitled to judgment as a matter of law. Accordingly, summary judgment was proper.

II. Lesser Sanctions

¶ 23. The grand-nieces further argue that the chancery court should not have dismissed their case with prejudice because lesser sanctions were “available and warranted.” We find this argument is without merit. The grand-nieces are barred by the statute of limitations and would not be able to bring another suit to contest Mace’s will or George Sr.’s estate, even if the chancellor had dismissed the case without prejudice. Due to the statutory bar, the final order dismissing the case with prejudice was appropriate. Accordingly, we affirm the chancery court’s judgment.

¶ 24. THE JUDGMENT OF THE HINDS COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., MYERS, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY. IRVING, P.J., AND BARNES, J., CONCUR IN PART AND IN THE RESULT. RUSSELL, J., NOT PARTICIPATING.

      . Although neither party raised this issue on appeal, we note that by operation of law, in the absence of a will, title of real property vests immediately in the heirs at law upon the owner’s death. In re Will of Wilcher v. Wilcher, 994 So.2d 170, 176 (¶ 12) (Miss.2008). While real property does not pass through an estate in such a situation, the fact that the chancery court in this case entered an order to establish title in certain family members constitutes a hostile taking. Further, the family members who were excluded by the court’s order over forty years ago continued to live on the land in question, without seeking any adjudication of their rights. Thus, it appears that the elements for adverse possession have long since been satisfied. Accordingly, the appellants are also barred by the statute of limitations for adverse possession. Miss.Code Ann. § 15-1-7 (Rev.2006).


text:
    Lisa CHAMBERS, Appellant v. Robert K. BROWN, Appellee.
    No. 2010-CA-00845-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Dana J. Swan, Clarksdale, attorney for appellant.
    John Brian Hyneman, Oxford, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. The Grenada County Circuit Court found Lisa Chambers willfully and in bad faith concealed her pre-accident medical treatment for the same injuries she alleged were caused by Robert Brown’s negligence. The sole issue before us is whether the circuit judge abused his discretion when he dismissed Chambers’s personal-injury suit after finding she provided false deposition testimony concerning her prior medical conditions and treatment. Though dismissal for failure to comply with discovery is reserved for the most extreme circumstances, we find the circuit judge did not err in reasoning that no lesser sanction would achieve the same deterrent value.

¶2. Finding no abuse of discretion, we affirm the dismissal with prejudice.

FACTS AND PROCEDURAL HISTORY

¶ 3. Chambers and Tasha Nobles sued Brown for injuries caused when his vehicle collided into theirs on January 10, 2006. Brown stipulated to liability. The sole triable issue was the extent of the plaintiffs’ damages. Although both plaintiffs claimed they suffered pain caused by the wreck, Chambers testified she began experiencing debilitating neck pain and headaches after the wreck.

¶ 4. After discovery was completed, the circuit judge set trial for July 28, 2009. By agreement of the parties, the trial was continued. It was later re-set for December 1, 2009, but then again continued by the circuit judge. Soon after December 1, Brown discovered other relevant medical information that Chambers had not provided in discovery.

¶ 5. Through these additional medical records, Brown learned Chambers had been treated for headaches and neck pain in 2004 at Ballard Chiropractic Clinic in Grenada, Mississippi. Upon intake, Chambers complained her headaches and neck pain were “often” and “constant.” In January 2005, one year prior to the wreck, Dr. Keith Stanford referred Chambers to Grenada Lake Medical Center for an MRI of her spine due to her complaints of “neck and back pain.” The hospital performed the MRI on January 25, 2005. Then, in October 2005, just three months before the accident, Chambers returned to Ballard Chiropractic for treatment for neck pain and constant headaches.

¶ 6. On February 16, 2010, Brown moved to dismiss Chambers from the lawsuit under Rule 37, citing discovery violations. See M.R.C.P. 37(e). He pointed to Chambers’s sworn deposition testimony from September 2006. During her deposition, Chambers testified she had not suffered any headaches until after the accident. She also claimed she had neither received treatment for nor complained of headaches and neck or back pain to any physicians within ten years prior to her deposition. The relevant portions of her deposition illustrate her denials:

Q: After the accident here that happened on January 10th of this year, what were your immediate problems, physical problems that you had?
A. I had none. I didn’t have any.
By [her attorney]: He asked you about after your accident what problems.
[Chambers]: He said prior to it, didn’t he?
[Her attorney]: Oh, did he? I assume he meant—
A: —before the accident is that what you are talking about?
Q: ... As far as had [sic] you ever had problems with headaches prior to this?
A: No, sir.
Q: Did you have any migraines or sought treatment for migraine headaches prior to this?
A: No.
Q: Other than the nurse practitioner ... have you seen any other doctors?
A: No, sir.
By [her attorney]: He’s asking about have you ever seen any other doctor in your lifetime I guess.
Q: No. Let’s refrain it to the last ten years other than the nurse practitioner....
A: No because I’ve never really been sick to have to seen one unless I had a cold or something.
By [her attorney]: Lisa, he could be asking you also about like an OB doctor, lady doctor, I don’t know if he’s asking you that.
Q: No, I don’t want to know your OB, certainly not but just in general for sickness or any type of headache problems or neck problems, back problems, anything of that nature?
A: No.

¶ 7. In seeking sanctions, Brown also cited Chambers’s response to Interrogatory 14. This particular question requested she disclose any illness, injury, or disability she had suffered within the last ten years. It also asked that she identify health-care providers who had treated her in the past ten years. Her attorney had previously objected claiming the interrogatory sought information beyond the scope of Rule 26. See M.R.C.P. 26. No answer was ever given, and Brown’s attorney did not move to compel a response.

¶ 8. Chambers’s counsel responded by acknowledging her deposition testimony was false. He informed the circuit court that Chambers recalled going to Ballard Chiropractic for headaches and neck pain. Chambers justified not disclosing her pre-accident chiropractic treatment because she found it unimportant since her previous pain was minor and had been resolved. Yet Chambers gave no explanation for omitting both Dr. Stanford’s treatment and the MRI she underwent at the hospital.

¶ 9. The circuit judge deemed Chambers’s explanation insufficient and lacking in credibility. He found it “highly unlikely that one who was suffering headaches as a result of an accident would not remember having sought treatment for similar conditions from medical providers within eighteen months of the accident especially when one of the occasions resulted in a MRI.” The circuit judge granted Brown’s motion and dismissed Chambers’s action with prejudice. This sanction was based on his finding that Chambers had testified falsely during her deposition.

¶ 10. The circuit court further granted Brown a Rule 54(b) final judgment. See M.R.C.P. 54(b) (requiring certification to finalize a judgment against less than all plaintiffs in a multi-plaintiff lawsuit). Chambers timely appealed.

LAW AND DISCUSSION

I. The Standard of Review

¶ 11. Rule 87(e) provides the court great latitude in imposing sanctions for discovery abuse. M.R.C.P. 37(e); Pierce v. Heritage Props., Inc., 688 So.2d 1385, 1388 (Miss.1997) (citing White v. White, 509 So.2d 205, 207 (Miss.1987)). “The power to dismiss is inherent in any court of law or equity, being a means necessary to orderly expedition of justice and the court’s control of its own docket.” Id. at 1388. But dismissing a cause of action for failure to comply with discovery is only justified “under the most extreme circumstances.” Id. (citing Hapgood v. Biloxi Reg’l Med. Ctr., 540 So.2d 630, 634 (Miss.1989); White, 509 So.2d at 209).

II. The Legal Standard for Dismissals for Discovery Violations

¶ 12. Rule 37 grants the trial court broad authority to “impose upon any party or counsel such sanctions as may be just[J” M.R.C.P. 37(e). But the Mississippi Supreme Court has established factors courts must evaluate when considering dismissal as punishment. See Pierce, 688 So.2d at 1389.

¶ 13. In Pierce, a circuit judge dismissed a personal injury action with prejudice after learning the plaintiff had been lying under oath. Id. at 1388. This discovery occurred after the verdict in the first trial had been set aside but before the second trial. Id. at 1387. Pierce maintained in her deposition, and then on the stand in her first trial, that she was the only person present when a ceiling fan fell on her bed injuring her. Id. She failed to disclose that another witness was with her at the time.. Id. at 1388. She later admitted she had concealed the other person’s presence because she feared her family learning she had a male companion in her bedroom. Id.

¶ 14. In reviewing the sanction-based dismissal in Pierce, the Mississippi Supreme Court considered the almost identical Federal Rule of Civil Procedure 37. It adopted the Fifth Circuit Court of Appeals’ factors for determining whether a trial court abused its discretion when dismissing a case with prejudice. Id. at 1389. This inquiry focuses on four considerations:

[1] First, dismissal is authorized only when the failure to comply with the court’s order results from wilfulness or bad faith, and not from the inability to comply. [2] Dismissal is proper only in situation where the deterrent value of Rule 37 cannot be substantially achieved by the use of less drastic sanctions. [3] Another consideration is whether the other party’s preparation for trial was substantially prejudiced. [4] Finally, dismissal may be inappropriate when neglect is plainly attributable to an attorney rather than a blameless client, or when a party’s simple negligence is grounded in confusion or sincere misunderstanding of the court’s orders.

Id. (quoting Batson v. Neal Spelce Assocs., Inc., 765 F.2d 511, 514 (5th Cir.1985)).

¶ 15. Deciding whether lesser sanctions were appropriate, the Pierce court emphasized that “other sanctions considered by the court would not achieve the deterrent value of the dismissal.” Id. at 1391.

¶ 16. In Scoggins, a case almost identical to the one before us, the plaintiff also failed to disclose during written discovery, production of documents, or deposition testimony previous medical treatment for the same types of ailments she alleged resulted from the accident. Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 991-92 (¶¶ 5-7) (Miss.1999). As in this case, the sole issue was the extent of damages. Id. at 994 (¶ 17). The trial court found Scog-gins’s justification that she did not remember her previous medical problems lacked credibility. Id. at 993 (¶¶ 15-16). The supreme court affirmed, holding the trial court properly applied the Pierce factors. Id. at 996-97 (¶¶ 30-35); see also Allen v. Nat’l R.R. Passenger Corp., 934 So.2d 1006, 1012-13 (¶ 18) (Miss.2006) (finding trial court did not abuse its discretion by rejecting plaintiffs “innocent mistake” explanation for failing to disclose previous medical problems).

III. The Sanction of Dismissal

¶ 17. Chambers’s sole argument is that dismissal was too harsh a sanction, citing White, 509 So.2d at 207. Although the Mississippi Supreme Court in White reversed the Rule 37 dismissal of a husband’s divorce pleadings, it did so because: (1) the trial court made no determination the husband’s discovery violations were willful or in bad faith, and (2) other lesser sanctions were available under the circumstances. Id. at 208-09. Comparing White with the more factually similar cases Pierce, Scoggins, and Allen, which all upheld dismissal, we find White helps Chambers’s case little. Unlike White, here the circuit court did make a finding that her omissions were material and willful.

¶ 18. And a second pertinent distinction exists in the cases she cites supporting reversal — none of them involved false sworn testimony. See Wood v. Biloxi Pub. Sch. Dist., 757 So.2d 190, 194-95 (¶¶ 12-18) (Miss.2000) (reversing dismissal for false interrogatory answer because the answer was ambiguous and plaintiff had not lied under oath); Wallace v. Jones, 572 So.2d 371, 374-77 (Miss.1990) (reversing dismissal under M.R.C.P. 41(b) for failure to meet criteria for sanction under that rule); White, 509 So.2d at 208-10 (reversing dismissal for failure to comply with discovery requests because no determination of willful behavior or bad faith); see also Caracci v. Int’l Paper Co., 699 So.2d 546, 557-58 (¶¶ 22-24, 31) (Miss.1997) (reversing denial of expert testimony for failure to respond to interrogatories because no motion to compel had been filed). Because dismissal was deemed appropriate for lying under oath in Pierce, Scoggins, and Allen, we obviously do not find the mere imposition of this sanction to be per se unreasonable or harsh. To assess the ultimate appropriateness of dismissal, we turn to the Pierce factors.

IV. The Pierce Factors

¶ 19. Reviewing Judge Morgan’s application of the Pierce factors, we note he found Chambers’s omissions were both willful and in bad faith. From the record, we see no error in this finding. Nor do we question his rejection of her excuse that she did not think it important to reveal her recent pre-accident chiropractic visits for treatment of the apparent identical pains. The circuit judge believed it was “highly unlikely” Chambers forgot her recent MRI examination. We too agree this convenient memory lapse is quite suspect. The circuit judge considered other sanctions, such as imposing costs for additional discovery. But he found lesser sanctions would not achieve the deterrent value of Rule 37. Confronted with false testimony, our supreme court has similarly emphasized that “any other sanction beside dismissal would virtually allow the plaintiff to get away with lying under oath without a meaningful penalty[.]” Pierce, 688 So.2d at 1391.

¶ 20. The circuit judge also properly recognized that had the case been tried on damages, as scheduled, Brown would have been severely prejudiced. As to the final Pierce factor, the circuit court did not in any way attribute Chambers’s non-disclosure to her attorney. And his finding that Chambers’s concealment was willful and in bad faith negates any inference her omissions were due to a misunderstanding.

¶ 21. Pierce demonstrates that a party “who knowingly gives false testimony under oath and conceals significant facts from the court” is subject to the sanction of dismissal. Id. at 1391. The circuit judge here correctly adduced that all fault lay with Chambers alone. Finding no abuse of discretion in the circuit judge’s reasoning that Chambers’s willful concealment required the dismissal of her claim against Brown with prejudice, we affirm.

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

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

      . Brown had not moved for — and the circuit court did not grant — dismissal of Nobles’s claim.

      . The circuit judge did not rely on the response to Interrogatory 14 in dismissing the case, "since the objection was clearly interposed by the attorney and not Chambers.”


text:
    Augusta McKENZIE, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00831-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Augusta McKenzie, appellant, pro se.
    R. Stewart Smith Jr. James M. Norris, attorneys for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Augusta McKenzie appeals the Sunflower County Circuit Court’s dismissal of his “Motion for an Order for Time Served,” which the circuit court found frivolous. McKenzie challenges the operation of his twenty-year and five-year concurrent sentences for armed robbery and a related conspiracy charge, which are consecutive to his thirty-year sentence for the sale of cocaine. McKenzie pursued a direct appeal from these convictions, and this court affirmed. McKenzie v. State, 669 So.2d 795 (Miss.Ct.App.1995); McKenzie v. State, 667 So.2d 634 (Miss.Ct.App.1995).

¶ 2. To the extent McKenzie’s motion challenges a decision or policy of the Mississippi Department of Corrections (MDOC), he must first seek administrative review before turning to the courts. Brown v. State, 54 So.3d 882, 884 (¶ 9) (Miss.Ct.App.2011). See also Miss.Code Ann. §§ 47-5-801 through 47-5-807 (Rev. 2004). In McKenzie’s motion, he alleges MDOC has committed various errors, including that it improperly computed his earned time and denied his eligibility for parole. The proper vehicle for such inmate grievances is not a PCR motion, but instead a claim filed through the MDOC Administrative Remedies Program. See Keys v. State, 67 So.3d 783, 784 (¶ 6) (Miss.Ct.App. 2010); Brown, 54 So.3d at 884 (¶ 9); Melton v. State, 930 So.2d 452, 456 (¶ 14) (Miss.Ct.App.2006); see also Burns v. State, 933 So.2d 329, 331 (¶ 9) (Miss.Ct.App.2006) (“[A]n inmate who is uncertain about the operation of his sentence and desires clarity should pursue the administrative review procedures before turning to court.”). Because the record contains no proof that McKenzie has exhausted his administrative remedies, we are without jurisdiction to consider claims of this nature. See Walker v. State, 35 So.3d 555, 559 (¶ 12) (Miss.Ct.App.2010).

¶ 3. McKenzie also seems to claim that his sentences violate the law. A PCR motion is the proper avenue for challenging the legality of a sentence, Burns, 933 So.2d at 331 (¶ 8), yet we lack jurisdiction to consider this claim as well.

¶ 4. Where a PCR movant’s direct appeal has been affirmed by the Mississippi Supreme Court or this court, he must be granted leave from the supreme court before filing a PCR motion. Miss.Code Ann. § 99-39-7 (Supp.2010). See also Crosby v. State, 982 So.2d 1003, 1004-05 (¶¶ 1, 6) (Miss.Ct.App.2008). Since his direct appeal, McKenzie has filed at least four PCR motions prior to the motion under our review. Considering the most recent of his four prior motions, the supreme court on July 18, 2007, denied McKenzie’s application for leave to proceed in the trial court. The supreme court also cautioned McKenzie of the court’s authority to sanction him for future filings. See Ivy v. State, 688 So.2d 223, 224 (Miss.1997); McLamb v. State, 974 So.2d 935, 939 (¶ 17) (Miss.Ct.App.2008) (citing Miss.Code Ann. § 47-5-138(3) (Supp.2007)).

¶ 5. The supreme court has not granted McKenzie leave to proceed in the trial court on his present motion, nor has McKenzie requested the supreme court’s permission. Thus, we are without jurisdiction, as was the trial court, to consider his challenge' to the legality of his sentence. See Lacey v. State, 29 So.3d 786, 788 (¶ 7) (Miss.Ct.App.2009).

¶ 6. We affirm the trial court’s dismissal of McKenzie’s motion and remind McKenzie that future frivolous filings may result in sanctions, including the loss of his accrued earned time.

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

LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON AND RUSSELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT.

      .We note that McKenzie’s motion states: "And you can show them [ (MDOC) ] their mistakes, through the [Administrative Remedies Program], They still will not correct it. So I’m asking this Honorable Court that imposed this sentence to correct it." However, McKenzie must present some documentation that he has actually gone through the administrative process. We cannot accept this allegation in his motion as proof that he has done so.

      . We note that a PCR motion may challenge one judgment only. Miss.Code Ann. § 99-39-9(2) (Supp.2010). McKenzie improperly attempts to challenge two judgments.

      . We note that on March 30, 2010, the supreme court dismissed McKenzie's request to compel the trial court to rule on his "Motion for an Order for Time Served,” finding the request moot, as the trial court had already ruled on the motion.


text:
    PEARSON’S FIREWORKS, INC., Appellant v. CITY OF HATTIESBURG, Mississippi, Appellee.
    No. 2010-CA-00495-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.

      Lawrence Cary Gunn Jr., Hattiesburg, Joseph H. Montgomery, Poplarville, attorney for appellant.
    Charles E. Lawrence Jr., attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In 2008, Pearson’s Fireworks, Inc. (Pearson’s) brought three claims against the City of Hattiesburg, Mississippi. Pearson’s sought (1) a declaratory judgment that the city ordinance prohibiting the sale of fireworks was unenforceable against it, (2) damages for the “regulatory taking” of its business, should the city ordinance be declared enforceable, and (3) injunctive relief preventing Hattiesburg from closing its business until the resolution of its first and second claims. In 2010, the Lamar County Circuit Court granted summary judgment in favor of Hattiesburg because the city ordinance was enforceable against Pearson’s. But the circuit court did not address Pearson’s damages claim. Though Pearson timely appealed the judgment, under Mississippi Rule of Civil Procedure 54(b) an order that “adjudicates fewer than all of the claims” is not a final, appealable order. Because the judgment addressed only one of Pearson’s claims, it is not a final order under Rule 54(b). Thus, we must dismiss Pearson’s appeal for lack of jurisdiction.

BACKGROUND FACTS

¶ 2. In 2003, Pearson’s leased land along Highway 98 in Lamar County to operate a fireworks stand. The lease was for ten years, with an option to renew for an additional fifteen years. In 2007, Hatties-burg annexed the land where Pearson’s operated. An existing city ordinance prohibited the sale of fireworks within the city limits of Hattiesburg. Pearson’s unsuccessfully sought, under the Hattiesburg’s Land Development Code, “non-conforming use” status in order to continue operating the fireworks stand within Hattiesburg’s limits. The Land Development Code Administrator denied Pearson’s application because the city-wide prohibition of fireworks is not a zoning matter. For this same reason, the city council denied an appeal under the Land Development Code’s procedures.

PROCEDURAL HISTORY

¶ 3. On December 11, 2008, Pearson’s sued Hattiesburg. The complaint stated, and Pearson’s brief reiterated, Pearson’s was requesting three separate types of relief:

(1) A declaratory judgment that Pearson’s could continue to operate its fireworks stand under the zoning code’s “grandfather clause”;
(2)- Damages for the compensable “regulatory taking” of Pearson’s business; and
(3) Injunctive relief preventing Hatties-burg from closing Pearson’s business until the court’s resolution of claims (1) and (2).

Through a December 19, 2008 order, the parties agreed to attempt to reach a settlement. If a settlement could not be reached, they agreed “the Court will decide whether the plaintiff is entitled to a declaratory judgment as prayed for in Count I of the complaint.” And “[i]f the Court should determine that plaintiff is not entitled to prevail on its claim for declaratory relief, then the plaintiff shall not be allowed to continue its business within the city limits of Hattiesburg. However, the plaintiff may at that time elect to pursue its claim for damages for what it contends is an unlawful taking of its property.”

¶ 4. On March 3, 2009, Pearson’s filed a motion for declaratory judgment. The motion explained that Pearson’s was solely moving for relief for its first claim. And only if this claim was unfavorably resolved would it proceed to its second claim for damages. The motion stated, should the court grant Pearson’s request for a declaratory judgment, “this will be the end of this case.” If not, “then further proceedings will be necessary in this case to determine whether such closure constitutes an unlawful taking in violation of the due process clauses of both the United States and the Mississippi Constitutions, and if so, the amount of any damages Pearson’s may be entitled to.”

¶ 5. On January 4, 2010, the circuit court entered a judgment on Pearson’s motion for a declaratory judgment. The circuit court treated the declaratory-judgment action as one for summary judgment, based on Hattiesburg’s ore tenus motion. It denied Pearson’s request for a declaratory judgment. It then granted Hattiesburg summary judgment based on “the court[’s] finding that the ordinance prohibiting the sale of fireworks is a legitimate exercise of the municipality’s police powers” under Mississippi Code Annotated section 21-19-15(3) (Rev.2007). The court reasoned that because “this prohibition operates throughout [Hattiesburg’s] annexed boundaries regardless of their change, ... the sale of fireworks is not entitled to being ‘grandfathered in’ or given a ‘nonconforming use’ status.” The judgment, however, was completely silent about Pearson’s claim for damages for a regulatory taking.

¶ 6. The judgment became enforceable on March 4, 2010, when Pearson’s motion to enforce settlement was denied. On March 19, 2010, Pearson’s filed a notice of appeal “from the final judgment entered in this case on January 4, 2010.” Among its arguments on appeal is its claim “[t]he circuit court erred in granting summary judgment to [Hattiesburg] without addressing the plaintiffs claims for damages for the regulatory taking.”

LAW AND DISCUSSION

¶ 7. The record shows Pearson’s was careful to preserve its right to proceed on its regulatory-takings claim if its declaratory-judgment claim was denied. It is clear the circuit court simply did not address the regulatory-takings claim in January 2010 because the parties had agreed the declaratory-judgment action should be resolved first. Because the judgment Pearson’s appeals from did not adjudicate all of Pearson’s claims, nor was it certified as a final judgment under Rule 54(b), we must dismiss the appeal for lack of jurisdiction.

I. Rule 54(b)

¶ 8. “When all the issues in a case or claims against all the parties are not resolved in a judgment, no appeal of right can be taken.” Williams v. Bud Wilson’s Mobile Home Serv., 887 So.2d 830, 832 (¶ 5) (Miss.Ct.App.2004). Mississippi Rule of Civil Procedure 54(b) states:

When more than one claim for relief is presented in an action ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims ... shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

M.R.C.P. 54(b) (emphasis added). The comment to the rule makes explicit:

If the court chooses to enter such a final order, it must do so in a definite, unmistakable manner. Absent a certification under Rule 54(b), any order in a multiple party or multiple claim action, even if it appears to adjudicate a separable portion of the controversy, is interlocutory.

M.R.C.P. 54(b) cmt. (emphasis added).

II. Interlocutory Order

¶ 9. This is a multiple-claim action governed by Rule 54(b) — a fact Pearson’s emphasizes in its appellate brief. Thus, in order to proceed with Pearson’s appeal, we would have to find the judgment adjudicated all of Pearson’s claims or was certified under Rule 54(b). M.R.C.P. 54(b).

¶ 10. The judgment does not adjudicate Pearson’s regulatory-takings claim. And although Rule 56 of the Mississippi Rules of Civil Procedure permits summary judgment on specific claims, it must be read in conjunction with Rule 54(b), which provides a grant of partial summary judgment is interlocutory without a Rule 54(b) certification. See Miller v. R.B. Wall Oil Co., Inc., 850 So.2d 101, 103 (¶¶ 6-7) (Miss.Ct.App.2002) (holding a grant of summary judgment in favor of fewer than all defendants was interlocutory under Rule 54(b)). The judgment did not reflect a grant of summary judgment in favor of Hattiesburg “on all claims.” Instead, the circuit court disposed of only one claim in Pearson’s motion for a declaratory judgment — Pearson’s claim that Hattiesburg could not apply the fireworks ordinance to it. The circuit court was to adjudicate the regulatory-takings claim only if it found the fireworks ordinance applied to Pearson’s. See M.R.C.P. 54(b) cmt. (requiring Rue 54(b) certification for orders that “appear[]to adjudicate a separable portion of the controversy” in a multi-claim action).

¶ 11. Further, the judgment was not certified as final under Rule 54(b). No where in the judgment or the record did the circuit court include “an expressed determination that there is no just reason for delay” and “an expressed direction for the entry of the judgment.” Ind. Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So.2d 750, 753 (Miss.1984) (quoting M.R.C.P. 54(b)). Without this Rule 54(b) certification, the judgment Pearson’s attempts to appeal is interlocutory. M.R.C.P. 54(b) & cmt.

1112. An interlocutory order is only appealable if the Mississippi Supreme Court grants permission under Rule 5 of the Mississippi Rules of Appellate Procedure. Miller v. Cont’l Mineral Processing, 39 So.3d 998, 1000 (¶ 9) (Miss.Ct.App.2010) (citing Lloyd G. Oliphant & Sons Paint Co. v. Logan, 12 So.3d 614, 617 (¶ 9) (Miss.Ct.App.2009)). Pearson’s neither sought nor was afforded permission under Rule 5 to proceed with an interlocutory appeal. Therefore, we dismiss this appeal.

¶ 13. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, ROBERTS AND RUSSELL, JJ., CONCUR. CARLTON, J„ CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . Pearson’s argued before the circuit court that a settlement had been reached on September 14, 2009. The circuit court denied its motion to enforce settlement. Pearson's does not raise this issue on appeal.


text:
    Nicholas GRISSOM, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00663-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.

      Nicholas Grissom, appellant, pro se.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. Nicholas Grissom pleaded guilty in the Noxubee County Circuit Court to capital murder. He was sentenced to life without parole. He filed a motion for post-conviction relief, which was dismissed by the trial court.

¶ 2. He now appeals the trial court’s summary dismissal of his motion for post-conviction relief and asserts the following issues: (1) he was entitled to an evidentia-ry hearing; (2) the evidence was insufficient to support his conviction; (3) the indictment was insufficient; (4) he should have been granted a change in venue; (5) he was denied the right to a fair trial; (6) he was denied due process of law; and (7) his guilty plea was invalid.

STANDARD OF REVIEW

¶ 3. A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. EVIDENTIARY HEARING

¶ 4. Grissom argues that the trial court erred in summarily dismissing his motion for post-conviction relief without first conducting an evidentiary hearing. The Mississippi Supreme Court has held that “[t]he trial court may summarily dismiss a motion for post-conviction relief ‘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.’ ” Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss.2009) (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)).

¶ 5. The trial court reviewed the record and guilty plea and found that it was clear that Grissom was not entitled to the requested relief. We find that the trial court properly dismissed the motion. Accordingly, this issue is without merit.

II. SUFFICIENCY OF THE EVIDENCE

¶ 6. Grissom argues that the State failed to prove all elements of capital murder, specifically that he was guilty of robbery. During the plea colloquy, the State cited facts underlying the capital-murder charge, including the robbery, that it would offer to prove Grissom’s guilt in the case of a trial. The State also listed the elements of capital murder. A valid guilty plea waives the right to challenge the sufficiency of the State’s evidence. Thornhill v. State, 919 So.2d 288, 241 (¶ 16) (Miss.Ct.App.2005). We find this issue is without merit.

III. INDICTMENT

¶ 7. Grissom argues that the indictment was insufficient because although it stated that he was being charged under Mississippi Code Annotated section 97-3-19 (Rev.2006), it failed to state which subsection.

¶ 8. The purpose of the indictment is to give notice of the charges against the defendant and the facts underlying such charges. Westmoreland v. State, 246 So.2d 487, 490 (Miss.1971). Mississippi Code Annotated section 99-17-20 (Rev.2007) imposes an additional requirement for defendants tried for capital murder. It states: “No person shall be tried for capital murder ... unless such offense was specifically cited in the indictment returned against the accused by setting forth the section and subsection number of the Code defining the offense alleged to have been committed by the accused.” Miss. Code Ann. § 99-17-20.

¶ 9. Even if Grissom’s indictment was defective for not including the subsection for capital murder, Grissom waived his rights to any technical or non-jurisdictional defects in his indictment by pleading guilty. Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990). Additionally, section 99-17-20 states that “[n]o person shall be tried for capital murder, or any other crime punishable by death,” unless the offense’s subsection is specifically cited in the indictment. (Emphasis added). Gris-som was not convicted by a jury but rather, pleaded guilty. The record shows Gris-som had reasonable notice of the crimes charged, even without the inclusion of the subsection, and his defense was in no way prejudiced by its omission.

¶ 10. Grissom’s indictment states that Grissom was being charged with capital murder and tracks the language of section 97-3-19(2)(e). We find the indictment was sufficient to give Grissom notice of the charge against him.

IV. VENUE

¶ 11. Grissom filed a motion for a change of venue and attached his affidavit along with seven other affidavits. The trial court held a hearing on the matter, although a transcript of the hearing was not included in the record. The main complaint seemed to be that Grissom could not receive a fair trial in Noxubee County because of its racial composition. One affi-ant stated that a fair trial was not possible in Noxubee County “because of all the talk.”

¶ 12. Mississippi Code Annotated section 99-15-35 (Rev.2007) states:

On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper.

¶ 13. First, we note that Grissom chose to plead guilty and, thus, did not have a trial. Thus, this issue is procedurally barred. Regardless, Grissom does not allege prejudgment of the case, grudge, or ill will by the public. The trial court found that Grissom failed to raise a rebuttable presumption that he could not receive a fair trial. We agree. This issue is procedurally barred and without merit.

V. FAIR TRIAL

¶ 14. Grissom argues that he was denied the right to a fair trial because his counsel’s performance was deficient.

¶ 15. There exists in Mississippi the presumption that trial counsel’s conduct is within the wide range of reasonable conduct and that decisions made by counsel are strategic. Edwards v. State, 615 So.2d 590, 596 (Miss.1993). Further, the supreme court “has implicitly recognized in the post-conviction relief context that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 658 So.2d 920, 922 (Miss.1995) (citing Brooks, 573 So.2d at 1354).

¶ 16. Grissom argues that his counsel persuaded him into pleading guilty to avoid the death penalty. As the trial court noted, the death penalty is a possible punishment for capital murder, and it was logical that Grissom’s trial counsel warned him of this. Grissom also makes other arguments regarding his counsel’s performance, including that his attorney failed to include critical facts in the motion to change venue. Grissom presents no supporting evidence for his assertions. Thus, we find this issue is without merit.

VI. DUE PROCESS

¶ 17. Grissom argues that he was denied due process because the State lacked evidence to support the elements of the crime. As stated above, a valid guilty plea waives the right to challenge the sufficiency of the State’s evidence. Thornhill, 919 So.2d at 241 (¶ 16). This issue is without merit.

VII.GUILTY PLEA

¶ 18. Grissom argues that he would not have pleaded guilty but for his attorney’s deficient performance. The Mississippi Supreme Court has held as follows regarding the validity of a guilty plea:

A guilty plea will be found valid if it is shown to have been voluntarily and intelligently made by the criminal defendant before the trial court. King v. State, 738 So.2d 240, 241 [ (¶¶ 2-3) ] (Miss.1999). To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea. Harris v. State, 806 So.2d 1127, 1130 [(¶ 9)] (Miss.2002).

Burrough, 9 So.3d at 373 (¶ 11).

¶ 19. During Grissom’s plea hearing, Grissom stated that his attorney had explained to him the implications of a guilty plea. He also stated that he was satisfied with his attorney’s performance. He stated that he was pleading guilty because he was guilty and that no one had threatened or influenced him into pleading guilty.

¶ 20. We find that Grissom was properly advised of his rights, the nature of the charge, and the consequences of the guilty plea. We also find that his guilty plea was voluntarily and intelligently made. This issue is without merit.

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

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


author: IRVING, P.J.,

text:
    Letarius CRAWFORD a/k/a Letarus Crawford a/k/a Latarus Crawford, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01905-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Stan Perkins, Greenville, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. This appeal arises out of Letarius Crawford’s convictions in the Washington County Circuit Court for murder and aggravated assault. The circuit court sentenced Crawford to life in the custody of the Mississippi Department of Corrections for the murder and to twenty years for the aggravated assault. Feeling aggrieved, Crawford appeals and contends that the circuit court erred in not granting his requested manslaughter instruction.

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

FACTS

¶ 3. Crawford went to the Express Inn in Greenville, Mississippi, on August 29, 2008, and shot Lashaunda Lewis to death in a hotel room. Crawford, who had previously been involved in a romantic relationship with Lewis, allegedly asked Lewis to the hotel to give her some money. Lewis asked her cousin, Dareyn Myrick, to go to the hotel with her, and he complied. Lewis and Myrick traveled to the hotel in a pickup truck that Lewis had borrowed from a friend. According to Myrick, Lewis drove the truck.

¶ 4. Myrick testified that Lewis entered Room 245, where Crawford had asked Lewis to meet him. Seconds later, Myrick heard Lewis scream and saw the curtains in the hotel room rustling. Myrick then heard several gunshots. Almost immediately thereafter, Crawford exited Room 245 and shot at the truck that Lewis had driven to the hotel. Crawford then approached Myrick, who was still sitting in the pickup truck. Crawford asked Myrick who Lewis had been sleeping with, then opened fire on Myrick. Myrick was shot three times, but was able to escape the truck and make it to the hotel’s lobby. During cross-examination, Crawford’s attorney asked Myrick whether Crawford was “excited” during the shooting, and Myrick gave the following response: “I wouldn’t necessarily say excited. But there wasn’t no [sic] kind of stopping sense, you know.” Myrick testified that Crawford initially pursued him toward the hotel’s lobby, but Crawford abandoned his pursuit when Myrick made it to a more public area.

¶ 5. When police officers arrived at the scene, they made contact with Myrick and found Lewis’s dead body inside Room 245. She had been shot four times. No one else was in the room, which was locked when the officers first attempted to enter. Officers discovered bullets, both live and spent, inside and outside the room; cigarette butts in the room’s toilet; beer bottles — some empty and some full; six dollars in cash; an electronic key card for the room; a black nylon gun holster; an open pack of Newport cigarettes; and a cellular telephone.

¶ 6. Dr. Feng Li, who performed Lewis’s autopsy, testified regarding the wounds that she suffered. Dr. Li testified that Lewis suffered a shot to the top of her head that was consistent with being shot from above. Dr. Li stated that Lewis also suffered gunshot wounds to the right side of her forehead, the left side of her chest, and the back of her left forearm. Dr. Li ruled that the manner of Lewis’s death was homicide.

¶ 7. Robert Esters was leaving the Express Inn on the day of the shooting when he saw Lewis’s pickup truck pull into the hotel. Esters testified that he saw Lewis leave the pickup truck and enter a room at the hotel’s parking lot. He stated that he heard gunshots very shortly after Lewis had entered the room; moments later, Esters saw Crawford exit the same room that Lewis had entered. Esters testified that Crawford was watching and pointing a gun at him, but after a few moments, Crawford went to Lewis’s truck and began shooting into the truck. At that point, Esters drove to the front of the hotel, where he entered the lobby and informed the hotel’s staff of the shooting.

¶ 8. Eugina Allen, Lewis’s sister, testified about an incident on July 4, 2008, when her family had gathered for Independence Day. Crawford called Lewis multiple times during the gathering. Lewis let Allen listen to the voice mail messages. In the messages, Crawford was screaming and asking where Lewis was. Crawford also threatened to kill Lewis. Allen also told the jury that she had spoken on the phone with Crawford about Crawford’s physical abuse of Lewis. Allen estimated that this conversation took place sometime around June 2008. During cross-examination, Allen agreed that Lewis and Crawford had had a very stormy relationship that was “violent.”

¶ 9. Crawford gave a recorded statement to law enforcement after the shooting, and the statement was played for the jury at trial. In the statement, Crawford talked about Lewis calling the day before the shooting to tell him that she had given him Acquired Immune Deficiency Syndrome (AIDS). Crawford expressed that he felt as though Lewis had taken his life away by allegedly giving him AIDS. Crawford stated that he had not been tested for AIDS and that he should have been tested before confronting Lewis. Crawford told the interviewing officer that he remembered shooting Lewis, although he could not remember why he shot her; Crawford stated that he could not remember shooting Myr-ick.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 11. In Harden v. State, 59 So.3d 594, 608 (¶ 38) (Miss.2011), the Mississippi Supreme Court explained the standard of review that applies to a circuit court’s decision to deny a defendant’s requested jury instructions:

“[J]ury instructions are within the sound discretion of the trial court.[”] Rubenstein v. State, 941 So.2d 735, 787 [(¶ 239)] (Miss.2006) (citing Goodin v. State, 787 So.2d 639, 657 [(¶ 60)] (Miss. 2001)). “A defendant is entitled to jury instructions on his theory of the case whenever there is evidence that would support a jury’s finding on that theory.” [Montana v. State, 822 So.2d 954,] 962 [(¶ 29) (Miss.2002)] (citing Jackson v. State, 645 So.2d 921, 924 (Miss.1994)). However, a trial court may refuse a jury instruction when it is an incorrect statement of law, is fairly covered in other instructions, or has no foundation in the evidence. Ruffin [v. State ], 992 So.2d [1165,] 1176 [(¶ 33) (Miss.2008)]. [An appellate court] reads jury instructions as a whole and not in isolation. Walker v. State, 913 So.2d 198, 234 [(¶ 132)] (Miss.2005) (quoting Parks v. State, 884 So.2d 738, 746 [(¶26)] (Miss.2004)). “[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.” Montana ..., 822 So.2d [at] 958 [ (¶ 10) ]. . . .

¶ 12. A defendant is entitled to a manslaughter instruction only when a factual basis for the instruction has been established. In Neal v. State, 15 So.3d 388, 408(¶ 52) (Miss.2009), the supreme court explained what must be shown factually to entitle someone to a manslaughter instruction:

Heat-of-passion manslaughter requires “a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter.” Hobson v. State, 730 So.2d 20, 26-27 [(¶ 22)] (Miss.1998) (quoting Tait v. State, 669 So.2d 85, 89 (Miss.1996)). “Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.” Id. at 27 [(¶ 22)]. “The passion felt by the person committing the act ‘should be superinduced by some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.’ ” Graham v. State, 582 So.2d 1014, 1018 (Miss.1991) (quoting Barnett v. State, 568 So.2d 1877, 1379 (Miss.1990)).

(Emphasis added).

¶ 13. While Crawford would be entitled to any instruction that had a foundation in the evidence and was a correct statement of the law, his requested manslaughter instruction was not supported by the evidence. In his brief, Crawford argues that “something” happened at the hotel that caused Crawford to shoot Lewis to death. However, we do not find that the record supports Crawford’s conclusion that anything happened at the hotel to provoke the attack.

¶ 14. Crawford requested that Lewis come to his hotel room. According to his statement to the police, he was angry that Lewis had allegedly given him AIDS. Crawford told the police that after Lewis entered the room, he hugged her, brought up the AIDS conversation, and then she began screaming at him. Crawford explicitly told the police that he did not remember why he shot Lewis. After shooting Lewis four times, Crawford went outside, where he shot Myrick multiple times. Myrick testified that Crawford did not appear overly excited while he was shooting. Crawford also was in enough of a right mind that he abandoned his pursuit of Myrick after Myrick obtained the relative safety of the hotel lobby.

¶ 15. The only possible acts of provocation that were provided to the jury were Lewis allegedly giving Crawford AIDS and Crawford seeing Lewis at the hotel. As to the former, Crawford learned of the alleged infection the day before the shooting. Even after learning that Lewis believed that she had given him AIDS, Crawford drove from Tennessee to Greenville to confront Lewis. It was apparent from the empty beer bottles and cigarette butts in Crawford’s hotel room that he had been occupying the hotel room for some time before Lewis arrived there.

¶ 16. The provocation for heat-of-passion manslaughter must cause passion or anger “at the time” of the provocation. Neal, 15 So.3d at 408(52). Here, Crawford learned about the alleged AIDS infection a full day before he went to Greenville. There is nothing in the record to indicate that there was a provocation at the time of the shooting; even according to Crawford’s statement, he could not remember why he shot Lewis.

¶ 17. If the acts of provocation were merely seeing Lewis, Myrick, or Lewis’s truck, the circuit court was correct in ruling that those were not sufficient acts of provocation to support a manslaughter instruction. As stated by the Neal court, the provoking act must be “some insult, provocation, or injury, which would naturally and instantly produce, in the minds of ordinarily constituted men, the highest degree of exasperation.” Id. (quoting Graham, 582 So.2d at 1018). Merely seeing a person or a vehicle is not a provocation that would naturally cause rage or passion to an ordinary person.

¶ 18. There was no evidentiary basis for Crawford’s requested instruction. Accordingly, his contention of error is without merit.

¶ 19. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

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


text:
    Melvin MARTIN, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-01286-COA.
    Court of Appeals of Mississippi.
    July 26, 2011.
    Melvin Martin, appellant, pro se.
    Office of the Attorney General by John R. Henry, Jr., attorney for appellee.
    Before LEE, C.J., MYERS and MAXWELL, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On January 12, 2000, in the Marshall County Circuit Court, Melvin Martin pleaded guilty to one count of armed robbery and two counts of aggravated assault. On the armed-robbery count, Martin was sentenced to thirty years with ten suspended and twenty years to serve in the custody of the Mississippi Department of Corrections (MDOC). On the aggravated-assault counts, Martin was sentenced to twenty years on each count. The sentences imposed on the aggravated-assault counts were ordered to run concurrently with each other and concurrently with the time imposed on the armed-robbery count.

¶ 2. On March 26, 2010, Martin filed his motion for post-conviction relief. The trial court denied Martin’s motion for post-conviction relief. Martin now appeals, asserting that he was given erroneous advice concerning the amount of time he was ordered to serve.

STANDARD OF REVIEW

¶ 3. A trial court’s denial of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

¶ 4. According to Mississippi Code Annotated section 99-39-5(2) (Supp.2010), a motion for post-conviction relief following a guilty plea shall be made “'within three (3) years after entry of the judgment of conviction.” Although the record does not reflect whether Martin’s entry of the judgment of conviction was on the same day as his plea colloquy, we find it appropriate to use January 12, 2000, as our starting date. Martin did not file his motion for relief within the statutory time period; thus, his motion for relief is time-barred.

¶ 5. Notwithstanding the time bar, we will address the merits of Martin’s argument. There are exceptions to the three-year statute of limitations found in section 99-39-5(2), including “those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.” However, Martin is not arguing that his parole has been unlawfully revoked or that his sentence was illegal, only that he was given erroneous advice. Although Martin’s claim is time-barred, the record is clear that he was informed of his sentence at the time of his guilty plea. Furthermore, there is no evidence through affidavits or otherwise that Martin relied upon any purported misinformation when deciding to plead guilty. This issue is without merit.

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

GRIFFIS, P.J., MYERS, BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ„ CONCUR. IRVING, P.J., AND ROBERTS, J., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


text:
    Tony DUCKSWORTH, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00479-COA.
    Court of Appeals of Mississippi.
    March 29, 2011.
    Rehearing Denied Aug. 9, 2011.

      Tony Ducksworth, Appellant, pro se.
    Office of the Attorney General by Scott Stuart, Jackson, attorney for appellee.
    Before IRVING, P.J., MYERS and MAXWELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. Tony Ducksworth pleaded guilty in the Jones County Circuit Court to the crime of forcible rape and was sentenced to thirty years in the custody of the Mississippi Department of Corrections, with twenty years to serve and ten years of post-release supervision. Shortly after pleading guilty, Ducksworth filed a motion for post-conviction relief (PCR), in which he alleged that he was actually innocent, that his attorney had rendered ineffective assistance of counsel, that his indictment was defective, and that his guilty plea was otherwise invalid. The circuit court denied the motion without an evidentiary hearing. Feeling aggrieved, Ducksworth appeals and argues that the circuit court improperly denied his PCR motion.

¶ 2. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 3. In April 2005, Ducksworth sexually assaulted a thirteen-year-old girl, S.D. Ducksworth initially denied having any sexual contact with S.D., but his DNA was recovered from semen deposited inside S.D. during the assault. In his PCR motion, Ducksworth claimed that he had consensual sex with S.D. in exchange for fifty dollars. Ducksworth further claimed that the investigating officer in his case presented false evidence to the grand jury in order to obtain an indictment against him. As support for his contentions, Ducks-worth claimed in his PCR motion that S.D. told his aunt that, in exchange for fifty dollars, he and S.D. had consensual sex. Ducksworth also claimed that his indictment was defective because it cited the incorrect statute.

¶ 4. As to his attorney, Ducksworth claimed in his PCR motion that his attorney “was ineffective for failing to inform him about the knowledge of the charges and a notice and understanding of the severity of the charges and the severity of the potential punishment.” Ducksworth then claimed that he had only pleaded guilty because his attorney “tricked” him and threatened that Ducksworth would receive a life sentence if he went to trial. Ducksworth also claimed in his PCR motion that his attorney failed to research Ducksworth’s allegation that he had consensual sex with the victim. As evidentia-ry support, Ducksworth provided only his own self-serving affidavit. The circuit court reviewed the transcript of Ducks-worth’s guilty plea and found his contentions without merit. It is from that decision that Ducksworth appeals.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 6. Ducksworth raises the same contentions in his appeal that he raised before the circuit court in his PCR motion. We note at the outset that, if valid, Ducks-worth’s guilty plea “admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in [his] indictment....” Reeder v. State, 783 So.2d 711, 720 (¶ 36) (Miss.2001) (citing Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). As we will explain in more detail below, Ducksworth’s guilty plea was valid; therefore, any defect in his indictment was waived when he pleaded guilty.

¶ 7. As to Ducksworth’s actual-innocence claim, there is insufficient evidence in the record to support his contention. When Ducksworth pleaded guilty, he admitted that there was a factual and legal basis that he had committed the crime of forcible rape. When asked whether the facts recited by the prosecutor were correct, Ducksworth agreed and said nothing about the victim consenting to have sex with him. The only evidence of consensual sex came from Ducksworth’s own self-serving affidavit, which is wholly insufficient to support his claim. See Gable v. State, 748 So.2d 703, 705-06 (¶ 8) (Miss.1999). The same evidentiary problem exists with regard to Ducksworth’s claim that the investigating officer presented false evidence to the grand jury and withheld exculpatory evidence from the grand jury and the magistrate who issued Ducksworth’s arrest warrant.

¶ 8. As to Ducksworth’s claim that his counsel was ineffective, we note that the following transpired during Ducks-worth’s guilty-plea colloquy:

[COURT]: Are you satisfied with the lawyer’s representation and advice in this matter?
[DUCKSWORTH]: Yes, sir.
[COURT]: Do you want to say anything or have any questions about any of the things that we’ve gone over thus far.
[DUCKSWORTH]: No, sir.

If Ducksworth had any qualms about his attorney’s representation, he could have raised them at that time; instead, he indicated that he was satisfied with his attorney’s representation.

¶ 9. In order to succeed on a claim of ineffective assistance of counsel, Ducksworth must show that his attorney’s performance was deficient and that that deficiency prejudiced Ducksworth’s case. Doss v. State, 19 So.3d 690, 694-95 (¶ 7) (Miss.2009). Ducksworth complains that his attorney told him that he would get a life sentence if he went to trial. Ducks-worth was convicted of forcible rape, which carries a maximum sentence of life in prison. Ducksworth’s attorney was not ineffective for informing him that he might receive a life sentence if he went to trial. Ducksworth also complains that his attorney did not contact his aunt regarding her conversation with S.D., wherein S.D. allegedly admitted that she consented to have sex with Ducksworth after he paid her fifty dollars. Since consent is no defense to raping a thirteen year old child, this Court fails to see how that information could have aided Ducksworth’s defense in any way. Finally, Ducksworth complains that his attorney did not seek DNA testing of a window, window screen, and gun at the scene of the crime. Since Ducksworth ultimately admitted that he had sexual contact with the victim, DNA testing of those items became a relative non-issue. Given the deference awarded to the decisions of trial counsel, we cannot say that any of the above is sufficient to prove ineffective assistance of counsel, especially in light of Ducksworth’s sworn statement that he was pleased with the conduct of his trial attorney. See Doss, 19 So.3d at 695 (¶ 8).

¶ 10. Finally, we find no merit to Ducksworth’s claim that his guilty plea was not knowingly and intelligently entered. As the Mississippi Supreme Court has stated:

A guilty plea will be found valid if it is shown to have been voluntarily and intelligently made by the criminal defendant before the trial court. King v. State, 738 So.2d 240, 241 [ (¶¶ 2-3) ] (Miss.1999). To determine whether the plea is voluntarily and intelligently given, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea. Harris v. State, 806 So.2d 1127, 1130 [ (¶ 9) ] (Miss.2002).

Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009). The transcript of Ducksworth’s plea colloquy shows that Ducksworth was informed of the minimum and maximum sentence that he might receive as well as all the rights and procedures that he would be entitled to if chose to proceed to trial. Ducksworth indicated that he and his counsel had discussed his case and that he was pleased with the advice he received. During the colloquy, Ducksworth was informed of the charge against him and of the factual basis for the charge. Ducksworth indicated that he was sufficiently educated, that he was not under the influence of any drugs or alcohol, and that he still wished to plead guilty. Under these circumstances, we find that Ducksworth’s guilty plea was voluntarily and intelligently made.

¶ 11. There is no merit to Ducksworth’s contentions of error.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

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

      . This is the sentence that was recommended by the State at the outset of Ducksworth’s guilty-plea colloquy and appears to be the sentence that was given by the circuit court. However, neither the sentencing order nor the guilty-plea petition is in the record before us, and the circuit court did not state Ducks-worth’s'sentence in its order denying his motion for post-conviction relief.

      . We have used initials to protect the identity of the thirteen-year-old victim.

      . Although Ducksworth was convicted of forcible rape, not statutory rape, we note that because his victim was only thirteen years old and he was twenty-nine, he could have been sentenced to life imprisonment had he been charged and convicted of statutory rape. In any event, consent is not a defense to rape in any form when the victim is under sixteen years old. Miss.Code Ann. § 97-3-65 (Supp. 2010).

      . As already noted, even if Ducksworth had produced additional evidence on the question of consent, it would not have been a defense to raping a thirteen year old child.