text:
    James David BRYANT, Jr., Appellant v. Pamela Rena Smith BRYANT, Appellee.
    No. 2011-CA-00669-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      Joe Robert Norton IV, Matthew Paul Kidder, attorneys for appellant.
    William D. Boerner, Brookhaven, attorney for appellee.
    Before LEE, C.J., MAXWELL and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. This is an appeal from the Chancery Court of Lawrence County, Mississippi, where James David Bryant Jr. (David) sought a modification of child custody. David was granted temporary physical custody of the two minor children. David claims the chancellor erred in finding no material change in circumstances adverse to the health and well-being of the minor children; and, abused his discretion by failing to make proper findings of fact and conclusions of law on the record. Finding error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. David and Pamela Rena Smith Bryant (Rena) were married on November 25,1995. During the marriage, the parties had two boys. One is now age thirteen, and one is now age eight. Rena filed for divorce on November 17, 2007. David filed a motion for recusal on December 4, 2007. David and Rena were granted a divorce on the ground of irreconcilable differences in Lawrence County, Mississippi, on January 12, 2009.

¶ 3. Under the divorce decree, David and Rena agreed to joint physical and legal custody of their two minor children, with physical custody to alternate from week to week. David was ordered to pay Rena $400 per month in child support. After the divorce, Rena moved in with her uncle in Monticello, Mississippi. Months later, after the weekly exchange became burdensome, both parties agreed the minor children should reside primarily with Rena at her uncle’s home, with David having visitation with the children on alternating weekends and holidays. David’s monthly child-support payments increased to $500. An agreed order to that effect was entered on July 8, 2009.

¶ 4. Prior to the divorce, on October 10, 2008, Rena pled guilty to the charges of conspiracy and uttering forgery in the Circuit Court of Lincoln County, Mississippi. Rena was placed on non-adjudicated probation for three years in the custody of the Mississippi Department of Corrections. Because of her prior history of illegal drug use, Rena was subject to random drug testing during her probation period at the request of her probation officer.

¶ 5. On January 13, 2011, during a random drug test, Rena tested positive for cocaine and opiates. David subsequently filed a petition for a modification of custody on January 18, 2011. David alleged in his petition for custody modification a material change in circumstances based on Rena’s failed drug test and her multiple one-car accidents within the two years before the filing of the modification petition. David filed a second motion to recuse on April 1, 2011.

¶ 6. Rena was admitted into a drug rehabilitation program at New Life for Women Center (New Life) in Jackson, Mississippi, on February 7, 2011, as a result of the failed drug test. The children moved in with Rena’s parents in Monticello, Mississippi, while Rena was in the resident rehabilitation program. Rena was scheduled to be released in June 2011. During the program, Rena remained under twenty-four-hour staff supervision, with weekends off, which she spent with the children at her parents’ home.

¶ 7. A trial on David’s petition was held on April 14, 2011. At the beginning of trial, David again requested that the chancellor recuse himself for multiple reasons, including: the chancellor was the next-door neighbor of David and Rena prior to their divorce; the chancellor was close friends with Rena’s father; and the chancellor had previously been consulted as counsel by Rena regarding a possible divorce from David. Denying the request, the chancellor stated that he had no preconceived notions about either party, and would remain impartial in spite of the connection he had with the parties.

¶ 8. The chancellor ordered a bifurcated trial, with the first portion to determine whether or not a material change in circumstances adverse to the health and well-being of the children had occurred. The chancellor declared he would only proceed to an Albright hearing after the testimony had been heard and a ruling had been made concerning a material change in circumstance.

¶ 9. During trial, Rena admitted to using opiates and cocaine on January 12, 2011, the day before she tested positive for the drugs. Rena also testified that prior to January 12, 2011, she had remained clean since 2006, before she was convicted and placed on probation.

¶ 10. During cross-examination, Rena admitted to having three one-car wrecks since the July 8, 2009 custody decree. In two of the wrecks, Rena completely totaled her car. In the third wreck, Rena ran her car through a fenced yard, crashing into a child’s trampoline.

¶ 11. One of the parties’ children testified that since Rena had been in rehab, he was having difficulty in school. Testimony from the child also showed that Rena’s absence affected the children emotionally. When questioned about his mother being in rehab, the child stated he would sometimes cry because he would worry about his mother so much. He also stated that he would worry about where he and his brother would live. Evidence also revealed that an adverse effect on the children in the custodial home had occurred even before Rena was admitted to rehab. According to the child’s testimony, when they were living with Rena’s uncle in Monticello, after Rena lost her job, the children would sometimes wake up in the middle of the night looking for their mother, who would not be home. The child also stated that his younger brother would wake up crying in the middle of the night whenever he was sick, and their mother would not be home. According to the child, after he and his brother went to sleep, Rena would leave the house late at night.

¶ 12. At the close of trial, the chancellor ruled that based on the testimony and evidence presented, no material change in circumstances adverse to the interests of the children had occurred that would warrant a change in custody. Determining that no material change had occurred, the chancellor did not proceed to an Albright analysis. The chancellor’s order on April 14, 2011, provided that the July 8, 2009 custody decree was still in place, but David was to have temporary physical custody of the children until Rena was released from New Life. From this ruling, David now appeals.

STANDARD OF REVIEW

¶ 13. In cases involving child-custody modification, this Court will not disturb the findings of the chancellor unless the chancellor was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard. White v. White, 26 So.3d 342, 346 (¶ 10) (Miss.2010) (citing R.K. v. J.K., 946 So.2d 764, 772 (¶ 17) (Miss.2007)). “[W]e will not reverse where the chancellor’s findings are supported by substantial credible evidence.” Jones v. Jones, 878 So.2d 1061, 1064 (¶4) (Miss.Ct.App.2004). “With respect to issues of fact where the chancellor made no specific finding, this Court proceeds on the assumption that the chancellor resolved all such fact issues in favor of the appellee, or at least in a manner consistent with the decree.” Id. (citing Smith v. Smith, 545 So.2d 725, 727 (Miss.1989)).

DISCUSSION

I. Material Change in Circumstances

¶ 14. The polestar consideration in all child custody cases is the best interest of the child. Albright v. Albright, 487 So.2d 1003, 1005 (Miss.1983). “A change in child custody should not be granted upon mere whim or caprice, but only when there has been a material change in circumstance, which suggests that a change of custody is in the best interest of the child.” Sturgis v. Sturgis, 792 So.2d 1020, 1023 (¶ 13) (Miss.Ct.App.2001) (citing Weigand v. Houghton, 730 So.2d 581, 585 (¶ 15) (Miss.1999)).

¶ 15. The chancellor determined there was no material change in circumstances in the custodial home that would warrant a change in custody. The record does not support such a finding. The party seeking custody modification must prove that (1) there has been a material change in circumstances since the issuance of the custody decree; (2) “the change adversely affects the child’s welfare”; and (3) “a change in custody is in the best interest of the child.” White, 26 So.3d at 349 (¶ 19) (citing Johnson v. Gray, 859 So.2d 1006, 1013 (¶ 33) (Miss.2003)).

¶ 16. Since the July 8, 2009 custody decree, Rena has tested positive for cocaine and opiates. As result of her drug use, Rena enrolled in a rehabilitation program, where she was separated from her children. At the time of trial, April 14, 2011, Rena had not yet completed the rehabilitation program. The Mississippi Supreme Court has not held a custodial parent’s rehabilitative treatment, alone, to constitute a material change in circumstances warranting a change in custody. However, when paired with additional factors that negatively impact the child, it is sufficient to constitute a material change. McSwain v. McSwain, 943 So.2d 1288, 1293 (¶ 21) (Miss.2006).

¶ 17. Here, Rena’s absence negatively impacted the children emotionally and their performance in school. Even before she began the rehabilitation program, Rena would leave the children late at night. In addition, Rena was unemployed at the time of trial, and had been in multiple serious one-car wrecks since the issuance of the custody decree. These factors, in the aggregate, are sufficient to demonstrate a material change in circumstances.

¶ 18. “[W]hen determining whether or not there has been a material change in circumstances with an adverse impact on the child, the chancellor must look at the totality of the circumstances.” White, 26 So.3d at 350 (¶ 26) (citing Stark v. Anderson, 748 So.2d 838, 843 (¶ 10) (Miss.Ct.App.2009)). In looking at the totality of the circumstances in this case, we find there exists a material change in circumstances adverse to the health and well-being of the children. Therefore, the chancellor erred in finding that no material change adverse to the welfare of the children existed, and by failing to proceed to an Albright analysis to determine if a change in custody would be in the children’s best interest.

II. Findings of Fact and Conclusions of Law

¶ 19. David also argues that the chancellor erred by failing to make proper findings of fact and conclusions of law on the record. Mississippi Rule of Civil Procedure 52(a) provides:

In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon[,] and [a] judgment shall be entered accordingly.

¶ 20. During trial, before calling the first witness, David’s counsel requested that the chancellor announce his findings of fact and conclusions of law regarding his ruling. The chancellor determined that no material change in circumstances existed that would warrant a change in custody, but he did not state any specific factual findings on which his ruling was based or cite any law to support his determination.

¶ 21. In her brief, Rena argues that because the chancellor ruled that the July 8, 2009 custody decree was still in place, and David was only granted temporary physical custody while Rena was in rehab, the order was temporary, not final; and, the chancellor was not obligated to make findings of fact and conclusions or law regarding a temporary order. However, at the close of trial, the chancellor stated multiple times that his ruling was final. After discussing the nature of the ruling with Rena’s counsel, the chancellor told the parties they were free to appeal the order if they chose to do so.

¶ 22. It is true that if the chancellor makes no specific findings, we are to assume the chancellor resolved the issues in favor of the appellee. Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss.1984). However, as discussed above, Rule 52(a) requires the chancellor to make specific factual findings and legal conclusions when requested by a party to the suit. Moreover, we find there exists a material change in circumstances adverse to the interest of the children that has occurred since the issuance of the custody decree, which warrants an Albright analysis with specific factual findings. Therefore, we reverse and remand for the chancellor to provide specific findings of fact and conclusions of law using an Albright analysis.

CONCLUSION

¶ 23. The chancellor erred in finding no material change in circumstances adverse to the health and well-being of the children, and by failing to make specific findings of fact and conclusions of law at the request of one of the parties. Finding error, we reverse and remand this case for further proceedings consistent with this opinion.

¶ 24. THE JUDGMENT OF THE CHANCERY COURT OF LAWRENCE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. FAIR, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . Rena tested positive on three separate occasions during the divorce proceedings.

      . The record is silent regarding whether Rena’s enrollment in the rehabilitation program was voluntary or at the direction of her probation officer.

      .David did note cite the chancellor's failure to recuse as error on appeal, and therefore it is not addressed in this opinion.

      . The record is silent regarding when Rena lost her job. However, the record does show that Rena was unemployed at the time of trial.


source: Caselaw Access Project

author: RUSSELL, J„

license: Public Domain

text:
    Von BROCK, Appellant v. WAL-MART # 1260 and American Home Assurance Company, Appellees.
    No. 2011-WC-01117-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      John Hunter Stevens, Jackson, attorney for appellant.
    Roxanne Penton Case, Michelle Barlow Mims, Ridgeland, Tracy Walker Baker, attorneys for appellees.
    Before IRVING, P.J., BARNES and RUSSELL, JJ.
   RUSSELL, J„

for the Court:

¶ 1. Von Brock appeals the Mississippi Workers’ Compensation Commission’s (“Commission”) order denying his motion to disregard the statutory requirement of using a mortality table to determine the present value of future compensation payments for the purpose of making a lump-sum payment of benefits. Brock raises one issue on appeal: whether Mississippi Code Annotated section 71-3-37(10) (Rev. 2011) is applicable to his case. Wal-Mart and American Home Assurance Company (“appellees”) state the issue as follows: whether the Commission was correct in denying Brock’s motion to suspend the requirement of present-value discount based on mortality tables under the mandate of Mississippi Code Annotated section 71-3-37(10). Upon review, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 31, 2008, Brock suffered a work-related injury at Wal-Mart. Brock was seventy-seven years of age at the time of his injury and had been working for Wal-Mart on a part-time basis. On August 28, 2009, Brock filed a petition to controvert, alleging he was injured in the course and scope of his employment with Wal-Mart. Specifically, Brock alleged that he was working as a “people greeter” in the garden center and was moving a lawnmower for a customer when the handle of the lawnmower fell off, causing him to fall. As a result, Brock suffered a fracture to his left leg.

¶ 3. Brock sought medical treatment from Dr. Sudhakar Mandanagopal, who performed surgery to repair the subtro-chanteric fracture to Brock’s left femur on August 1, 2008. Dr. Mandanagopal found that Brock reached maximum medical improvement (MMI) on June 18, 2009. On January 7, 2010, Dr. Mandanagopal noted that Brock would not require additional surgical intervention, and he assigned Brock a twenty percent full body impairment as a result of the fracture and Brock’s leg-length discrepancy.

¶ 4. On December 1, 2010, the administrative judge (AJ) heard Brock’s claim. The parties stipulated that Brock’s MMI date was March 26, 2010; that Brock’s average weekly wage was $245.49 per week; that Brock never returned to work for Wal-Mart after his injury; and that Brock had not conducted an independent job search for other employment. The only issue presented to the AJ was the nature and extent of disability attributable to the work injury.

¶ 5. Following the hearing, the AJ issued her opinion on January 14, 2011. The AJ found that Brock suffered a total loss of wage-earning capacity and was entitled to permanent and total disability benefits as a result of his work injury. Therefore, the AJ ordered the appellees to pay Brock permanent and total disability benefits in the amount of $163.67 per week beginning on July 31, 2008, and concluding after the statutory maximum of 450 weeks, with credit for any wages earned post-injury or any disability benefits previously paid. This amount was computed based on the stipulated average weekly wage of $245.49.

¶ 6. Subsequently, Brock requested a lump-sum payment of his benefits. Brock also requested a calculation of lump-sum benefits. On January 25, 2011, Brock’s lump-sum benefits were calculated as follows:

Total Award:

450.000000 weeks at $167.67 07/31/2008 to completion $75,451.50

Total due without discount: 131.714286 weeks at $167.67 07/31/2008 to 02/07/2011 $22,084.53

Less credits: $20,084.53

Remaining to be discounted: 318.285714 weeks at $167.67 02/08/2011 to completion $53,366.97

Less discount: $22,891.27

Lump[-]sum award: $30,475.70

8% Interest C/3 -q ^

10% Interest C/3 -q to

Total amount due: $31,883.63

117. On February 8, 2011, Brock filed with the Commission a motion to suspend the requirement of a present-value discount being utilized based on mortality tables. Brock argued that he was being penalized due to his age of 79 years. Brock further argued that the discount applied to his lump-sum award should be disregarded due to his “good state of health.” According to Brock, he had already outlived the usual life expectancy of a white male; therefore, it would be prejudicial to him to use the mortality tables in calculating his lump-sum award. Therefore, he proposed that the Commission discount his lump-sum award by only 4%, rather than using the formula under Mississippi Code Annotated section 71-3-37(10).

¶ 8. On February 18, 2011, appellees filed their response, arguing that section 71-3-37(10) mandates the use of mortality tables in calculating the lump-sum value. On June 21, 2011, the Commission entered an order denying Brock’s motion as follows:

This matter is before the Commission to consider [Brock’s] [m]otion to [sjuspend [the][r]equirement of [p]resent [v]alue [discount [b]eing [utilized [b]ased on [m]ortality [tjables. Essentially, [Brock] received a lump[-]sum payment of benefits which had been awarded him, and these benefits were commuted to a lump sum, with statutorily required discounts, in accordance with [section] 71-3-37(10)[J Because of [Brock’s] advanced age, the total present value discount was significant, and he is asking that we ignore a statutory command to utilize a mortality discount factor, and instead suspend this requirement in his case.
Having considered the applicable law, along with the response filed by the [e]mployer and [c]arrier, we hereby deny [Brock’s] [motion].

¶ 9. On July 13, 2011, Brock appealed the denial of his motion.

DISCUSSION

¶ 10. “The standard of review in appeals of workers’ compensation cases is limited; this Court must determine only whether the decision of the Commission is supported by substantial evidence and whether the law was correctly applied.” Scott v. KLLM, Inc., 37 So.3d 713, 715 (¶ 9) (Miss.Ct.App.2010) (citing Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991)). “The Commission sits as the ultimate finder of facts; its findings are subject to normal[ ] deferential standards upon review.” Id. (quoting Casino Magic v. Nelson, 958 So.2d 224, 228 (¶ 13) (Miss.Ct.App.2007)). Because our review is limited, we “will only reverse the Commission’s rulings where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id. (quoting Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 448 (¶ 8) (Miss.Ct.App.1999)). This Court maintains a “deferential standard even when we would have been persuaded to rule otherwise if we had been the fact-finder.” Id. (citing Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994)).

¶ 11. We note at the outset that neither party cites any case law to support their respective arguments. Instead, each party cites Mississippi Code Annotated section 71-3-37(10), which states:

Whenever the [C]ommission determines that it is for the best interests of a person entitled to compensation, the liability of the employer for compensation, or any part thereof as determined by the [C]ommission, may be discharged by the payment of a lump sum equal to the present value of future compensation payments commuted, computed at four percent (4%) true discount compounded annually. The probability of the death of the injured employee or other person entitled to compensation shall be determined in accordance with validated actuarial tables or factors as the [C]ommission finds equitable and consistent with the purposes of the Workers’ Compensation Law, and the probability of the remarriage of the surviving spouse or other person entitled to compensation may be determined in accordance with rules adopted by the [C]ommission[,] which shall apply validated actuarial tables or factors as the [Cjommission finds equitable and consistent with the purposes of the Workers’ Compensation Law. The probability of the happening of any other contingency affecting the amount or duration of the compensation shall be disregarded. The [C]ommission shall be the sole judge as to whether or not a lump-sum payment shall be to the best interest of the injured worker or his dependents.

(Emphasis added). According to the plain language of the statute, the “probability of the death of the injured employee ... shall be determined in accordance with validated actuarial tables or factors,” and the Commission shall disregard the “probability of the happening of any other contingency affecting the amount or duration of the compensation[.]” Id. The use of the word “shall” makes these provisions mandatory. See, e.g., Pickering v. Langston Law Firm, P.A., 88 So.3d 1269, 1275 (¶ 21) (Miss.2012) (holding that where a statute “includes the mandatory term ‘shall,’ [an appellate court does] not view its restriction as a suggestion — it is a mandate”). Further, this Court is “bound to follow a statute’s clear, expressed mandate.” Knight v. Miss. Trans. Com’n, 10 So.3d 962, 968 (¶ 18) (Miss.Ct.App.2009). As this Court has previously noted, it is the role of the Legislature, not the courts, to create and modify statutes:

Mississippi Workers’ Compensation Law is a legislative creation providing for the payment of insurance benefits to injured workers. The Legislature alone has the power to create and modify statutes. This Court may not insert provisions into a statute that the Legislature did not see fit to enact; to do so would overreach our judicial authority.

Washington v. Woodland Village Nursing Home, 25 So.3d 341, 358 (¶ 44) (Miss.Ct.App.2009) (internal citations omitted). Thus, this Court is without authority to disregard the plain meaning of section 71-3-37(10), which mandates that the Commission use actuarial tables in determining the present value of future compensation payments when the Commission grants a lump-sum award. For the above reasons, we find that Brock’s appeal is without merit.

¶ 12. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . We note that it was Brock’s choice to take a lump-sum payment.


text:
    Cedqueta LEE, Appellant v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION, Appellee.
    No. 2012-CC-00579-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      Cedqueta Lee, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before IRVING, P.J., BARNES and RUSSELL, JJ.
   RUSSELL, J„

for the Court:

¶ 1. Cedqueta Lee (pro se) appeals the judgment of the Bolivar County Circuit Court, affirming her denial of unemployment-compensation benefits by the Board of Review of the Mississippi Department of Employment Security (“Board of Review”). The Board of Review found that Lee was ineligible to receive unemployment-compensation benefits, due to employee misconduct. Lee claims the circuit court’s judgment and the decision of the Board of Review were not supported by substantial evidence. Finding no error, we affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Lee was employed by Needle Specialty Products Corporation in Boyle, Mississippi, as a molding operator from May 7, 2007 until her termination on July 16, 2011. On July 13, 2011, the facility’s air conditioner stopped working, and Lee proceeded to shut down her machine. Cassandra Turner, supervisor, issued Lee a written warning for shutting down her machine without supervisor approval, and called Lee into her office to sign the warning. Human resources manager, Robert Knight, was also present during the incident. After reading the warning, Lee began to yell loudly, and refused to sign the warning. Knight and Turner asked Lee to calm down. Lee refused, and continued to yell. Knight then placed Lee on a three-day suspension, and asked Lee to turn in her entrance key. Lee stated she did not have the key in her possession. Lee was instructed twice by Knight to return to work on July 19, 2011, at 8:00 a.m.

¶ 3. On July 14, 2011, Lee returned to work to pick up her paycheck. Knight told Lee that she could have her paycheck once she returns her entrance key. Lee yelled, “If you’re going to fire me, just go on ahead, let me know[,] and I won’t even have to get out of bed Tuesday morning.” At this point, Lee still had not turned in her entrance key. Lee then left the premises. On July 19, 2011, Lee returned to work at 6:00 a.m., and was terminated for insubordination.

¶ 4. That same day, Lee filed a claim for unemployment-compensation benefits. The claims examiner found that Lee was ineligible for unemployment benefits since her termination was due to employee misconduct. A hearing before an administrative law judge (ALJ) was held on September 6, 2011. The ALJ found that Lee’s behavior during the events leading up to her termination constituted employee misconduct and affirmed Lee’s denial of unemployment benefits. Lee appealed this decision to the Board of Review on September 26, 2011. The Board of Review affirmed the decision of the ALJ on September 28, 2011. Lee appealed to the Circuit Court of Bolivar County, which affirmed the decision of the Board of Review. From this decision, Lee now appeals to this Court.

STANDARD OF REVIEW

¶ 5. The proper standard of review for administrative appeals is as follows: “In the absence of fraud, an order from a Board of Review ... on the facts is conclusive in the [trial] court, if supported by substantial evidence. This Court and the circuit court [are] limited to the findings of the Board of Review.” Estate of Dulaney v. Miss. Emp’t Sec. Comm’n, 805 So.2d 643, 645 (¶ 11) (Miss.Ct.App.2002) (quoting Miss. Emp’t Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991)).

¶ 6. “On appeal, employees have the burden of overcoming a rebuttable presumption in favor of the [Board of Review’s] decision.” Id. (citing Miss.Code Ann. § 71-5-531 (Rev.2011)). “The denial of benefits may be disturbed only if (1) unsupported by substantial evidence, (2) arbitrary or capricious, (3) beyond the scope of power granted to the agency, or (4) in violation of the employee’s constitutional rights.” Id. at 646 (¶ 11) (citing Miss. Comm’n on Envtl. Quality v. Chickasaw Cnty. Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1993)).

DISCUSSION

¶ 7. Lee contends that Knight and Turner failed to prove through substantial evidence that Lee’s actions rose to the level of employee misconduct, which would warrant her denial of unemployment-compensation benefits. Lee argues that she was terminated due to a comment she made in reference to the facility’s broken air-conditioning unit, and that her comment did not constitute misconduct. The law governing employee disqualification from receiving unemployment benefits due to misconduct provides, in relevant part:

An individual shall be disqualified for benefits:
(b) For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the department, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.
(c) The burden of proof of good cause for leaving work shall be on the claimant, and the burden of proof of misconduct shall be on the employer.

Miss.Code Ann § 71-5-518 (Supp.2012).

¶ 8. The Mississippi Supreme Court has defined employee misconduct as follows:

The meaning of the term “misconduct,” as used in the unemployment compensation statute, [is] conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, [fall] within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion [are] not considered “misconduct” within the meaning of the statute.

Johnson v. Miss. Emp’t Sec. Comm’n, 761 So.2d 861, 865 (¶ 16) (Miss.2000) (quoting Wheeler v. Arriola, 408 So.2d 1381, 1388 (Miss.1982)).

¶ 9. During the hearing before the ALJ, Knight stated that on July 13, 2011, when the company’s air-conditioning unit stopped working, many of the employees, including Lee, left their work stations, walked into the hallway, and refused to continue working. Knight also stated that when Lee shut down her machine, she began “mouthin[g] off, bein[g] very insubordinate about it.” According to Knight, when Turner called Lee into her office to issue Lee a written warning, Lee began to yell loudly at Turner, and refused to sign the warning. Knight stated that after both he and Turner asked Lee to calm down, Lee’s behavior persisted, and Knight placed Lee on a three-day suspension. Knight testified that he instructed Lee to turn in her key and return to work on the following Tuesday, July 19, 2011, at 8:00 a.m.

¶ 10. It is undisputed that Lee returned to the work facility to obtain her paycheck on July 14, 2011. Knight stated that he informed Lee that she must turn in her entrance key in order to receive her paycheck. According to Knight, at that moment, Lee became loud and argumentative, and yelled, “If you’re going to fire me, just go on ahead, let me know[,] and I won’t even have to get out of bed Tuesday morning.”

¶ 11. The ALJ asked Knight if he and Turner had already made the decision to terminate Lee on the day she returned to pick up her paycheck. Knight stated that they had not. According to Knight, it was not until the morning of July 19, 2011 that he and Turner decided to terminate Lee due to her continual insubordination. Knight testified that he instructed Lee twice to return to work on July 19 at 8:00 a.m.; and yet, Lee returned to work two hours earlier than instructed.

¶ 12. Knight stated that insubordination was the reason Lee was discharged, and that the insubordination came from a number of factors, including: (1) Lee’s shutting down her machine without supervisor approval, and her subsequent refusal to sign the written warning detailing her actions; (2) Lee’s loud and argumentative behavior during the write-up, and during the time she arrived to pick up her paycheck; and (3) Lee’s showing up to work two hours prior to the time she was instructed. Our supreme court has held that “[ijnsubordination in the form of constant or continuing refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority constitutes misconduct within the meaning of the statute.” Trading Post, Inc. v. Nunnery, 731 So.2d 1198, 1201 (¶ 9) (Miss.1999) (citing Shannon Eng’g & Constr., Inc. v. Miss. Emp’t Sec. Comm’n, 549 So.2d 446, 449 (Miss.1989)).

¶ 13. Based on our review of record, we find that Lee’s actions leading up to the date of her termination constitute misconduct within the meaning of the statute. Lee displayed a willful and wanton disregard for her employer’s interest by her continual refusal to obey orders given by Knight and Turner. This type of behavior rises to the level of employee misconduct, which disqualifies Lee from the receipt of unemployment benefits under Mississippi law. Because substantial evidence exists to support the Board of Review’s finding that Lee was ineligible for unemployment-compensation benefits, we affirm the circuit court’s judgment.

CONCLUSION

¶ 14. We find that the decision of the Board of Review was supported by substantial evidence, was not arbitrary or capricious, was not beyond the scope of the powers of the agency, and was not in violation of Lee’s constitutional rights. Furthermore, we find that Lee’s actions constitute employee misconduct under Mississippi law, which warrants the denial of unemployment benefits. For these reasons, we affirm the judgment of the Bolivar County Circuit Court.

¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY IS AFFIRMED.

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


author:
GRIFFIS, P.J.,
      RUSSELL, J.,

text:
    Walter Lee TAYLOR, Appellant v. Willie M. GALLOWAY and Lucille S. Galloway, Appellees.
    No. 2011-CA-01378-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      Paul E. Rogers, Jackson, attorney for appellant.
    James L. Martin, Madison, attorney for appellees.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Willie M. Galloway and Lucille S. Galloway filed a complaint against Walter Taylor for damages under Mississippi Code Annotated section 95-5-10 (Rev. 2004), commonly referred to as the Mississippi timber trespass statute. The County Court of Madison County, Mississippi, entered a judgment in favor of the Galloways for compensatory damages, statutory damages, and court costs, including attorney’s fees. In this appeal, Taylor asserts three issues: (1) whether a statement made by Taylor’s father to Taylor was erroneously excluded as hearsay; (2) whether the county court erred when it directed a verdict on the issue of statutory damages under section 95-5-10(2); and (8) whether the county court erred in the award of court costs, including attorney’s fees. We affirm in part and reverse and remand in part.

FACTS

¶ 2. On April 20, 2009, the Galloways filed a complaint against Taylor for the unlawful cutting of timber on 3.92 acres of their property, without their permission, in violation of Mississippi Code Annotated section 95-5-10. On June 10, 2009, Taylor filed an answer and counterclaim. Taylor asserted a claim to the subject property based on adverse possession.

¶ 3. The county court held a jury trial on July 19 and 20, 2010. At the conclusion of the evidence, the Galloways made a motion for a directed verdict as to Taylor’s counterclaim for adverse possession. The county court granted a directed verdict and dismissed Taylor’s counterclaim for adverse possession.

¶ 4. The Galloways also made a motion for a directed verdict for the unlawful cutting of trees without consent and for the assessment of statutory damages on the basis that Taylor’s actions were willful and in reckless disregard for the Galloways’ rights. The county court granted the directed verdict and concluded that the Gal-loways were the owners of the subject property, and Taylor cut timber on the subject property without the Galloways’ consent. As a result, the court found that Taylor was liable for compensatory damages and statutory damages under section 95-5-10(1) and (2).

¶ 5. The county court judge submitted to the jury the determination of the fair market value of the cut timber. The jury concluded that the fair market value of the cut timber was $17,425.64, and this amount was awarded to the Galloways as compensatory damages under section 95-5-10(1). The issue of statutory damages was not submitted to the jury. The county court determined that reasonable jurors could not have arrived at a verdict in favor of Taylor on the issue of whether he cut the Galloways’ timber willfully and in reckless disregard for their rights.

¶ 6. On July 30, 2010, the county court entered a final judgment. The Galloways were awarded $17,425.64 in compensatory damages and $43,010 in statutory damages, for a total of $60,435.64.

¶ 7. On August 9, 2010, Taylor filed a motion for reconsideration, a motion for a new trial, and a motion for a judgment notwithstanding the verdict. The county court denied these motions. On August 30, 2010, the Galloways filed a motion for court costs under section 95-5-10(3). By order dated September 9, 2010, the county court awarded the Galloways $15,378.51 in court costs, which included the Galloways’ attorney’s fees.

¶ 8. Taylor timely appealed to the Madison County Circuit Court. On August 26, 2011, the circuit court entered an opinion and order that affirmed the county court’s judgment. It is from the circuit court’s judgment that Taylor now appeals.

ANALYSIS

¶ 9. This case presented a claim for damages under the Mississippi timber trespass statute, Mississippi Code Annotated section 95-5-10, which provides:

(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.
(2) If the cutting down, deadening, destruction or taking away of a tree without the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-Five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.
(8) All reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the discretion of the court.

¶ 10. The Galloways asserted a claim for compensatory damages under subsection (1). If a person trespasses on the land of another and cuts any timber, the trespasser shall be responsible to the owner for damages in the amount of “double the fair market value of the tree cut down” and the “reasonable cost of reforestation.” Miss.Code Ann. ? 95-5-10(1). The Gallo-ways may recover under subsection (1) if they prove that they own the land and that Taylor, or his agent, cut trees off their land. Subsection (1) specifically provides that “liability for the damages established in this subsection shall be absolute and unconditional!,] and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability.”

¶ 11. The county court judge directed a verdict to grant the Galloways’ claim for compensatory damages under section 95-5-10(1). The amount of the fair market value of the cut timber was presented to the jury, and the jury returned a verdict in the amount of $17,425.64. In the final judgment, the county court awarded compensatory damages under section 95-5-10(1) in this amount. Taylor does not challenge this award in this appeal. However, this claim is essential to our consideration of the first issue.

¶ 12. The Galloways also asserted a claim for statutory damages under subsection (2). If the cutting is done “without the consent of the owner of such tree [and is] done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down ... shall pay to the owner ... a penalty” based on the number and sizes of the trees cut. Miss.Code Ann. § 95-5-10(2). However, for the Galloways to recover the statutory damages, the statute requires that they prove that Taylor acted “willfully and knowingly, in conscious disregard for the rights of the owner,” when he “cut down, deadened, destroyed or took away such trees.” Id. Unlike subsection (1), statutory damages under subsection (2) could not be recovered if the person who cut the tree was under “good faith or ... honest mistake” when he cut the tree. Miss.Code Ann. § 95 — 5—10(1)— (2). As to this claim, the county court judge directed a verdict on the claim and awarded damages in the amount of $43,010.

¶ 13. The Galloways also asked the court to assess court costs, which include expert-witness fees and attorney’s fees, under subsection (3). See Miss.Code Ann. § 95-5-10(3). The county court judge awarded court costs in the amount of $15,378.51.

¶ 14. With this overview in mind, we address the issues raised by Taylor.

I. The county court committed prejudicial error by not allowing Taylor’s testimony of conversations with his father.

¶ 15. Taylor argues in his first issue that the county court committed reversible error when it refused to allow Taylor to testify about his conversations with his father.

¶ 16. At trial, Taylor’s counsel asked Taylor about discussions between Taylor and his father. It was apparent that Taylor intended to testify that his father had told him that one day Taylor would own the property in question. When Taylor’s counsel began to ask Taylor about his discussions with his father, the Galloways’ counsel objected on the ground that such evidence would be hearsay. Taylor’s counsel offered the county court judge no explanation as to why the testimony was not hearsay or would otherwise be properly admitted into evidence. The trial judge sustained the objection, and Taylor was not allowed to testify about his conversations with his father.

¶ 17. On appeal, Taylor argues that the testimony was not offered to prove the truth of the matter asserted. Hence, he argues that the testimony did not meet the definition of hearsay under Mississippi Rule of Evidence 801(c). ‘We review a trial court’s ruling regarding the admission or exclusion of evidence under an abuse-of-discretion standard of review.” Hester v. Samples, 74 So.3d 383, 388 (¶ 19) (Miss.Ct.App.2011).

¶ 18. It is important to put this argument in context. Taylor does not claim that this evidence would support his defense to the Galloways’ claim for compensatory damage, under section 95-5-10(1). Instead, for the first time in this appeal, Taylor claims that this testimony would be:

An important element of [TaylorJ’s defense to [the Galloways’] claim for additional punitive damages under Miss. Code. Ann. § 95-5-10(2) [was] that he acted in good faith and not willfully or in reckless disregard for [the Galloways’] rights was testimony regarding that his belief of ownership originated from a conversation between he and his father in 1956 that the subject property belonged to [Taylor]’s father and would be his after his father died.

Thus, Taylor argues that any statement made by his father that indicated that Taylor would one day own the subject property after his father’s death was not hearsay, because the conversation was not offered to prove Taylor’s ownership of the property but was offered to show Taylor’s good-faith belief that he owned the property-

¶ 19. As to the Galloways’ claim for compensatory damages under section 95-5-10(1), the only issue was who was the legal owner of the property where the trees were cut. Taylor’s testimony about his father’s statement would have been offered to rebut the Galloways’ claim of ownership. Such testimony of what Taylor’s father told him about the ownership of the land would certainly be hearsay when offered for this purpose. “Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). The trial judge was correct to exclude Taylor’s testimony that his father told him he would one day own the property because such an out-of-court statement would have been offered “to prove the truth of the matter asserted,” i.e., ownership. Under Mississippi Rule of Evidence 802, such hearsay would not be admissible.

¶20. However, if the testimony was offered to rebut the claim for statutory damages under section 95-5-10(2), the result could be different. The claim for statutory damages required the jury to consider Taylor’s subjective belief that he owned the property. As to this claim, it would have been proper for Taylor to testify about his father’s out-of-court statement for the nonhearsay reason that it was offered to prove Taylor had a good-faith reason to believe that he owned the property.

¶ 21. Unfortunately, at trial, Taylor’s counsel offered no response to the Galloways’ objection. In fact, Taylor’s counsel did not even argue that he sought to elicit this testimony for a nonhearsay purpose. Had Taylor’s counsel offered such a response, the trial judge would have had an opportunity to admit the out-of-court statement for its proper purpose, with a limiting instruction. Taylor’s counsel made no such request or argument before the trial judge.

¶ 22. Taylor now claims the trial judge was in error, but this matter was not presented to the trial judge. Taylor’s counsel could have offered the disputed evidence for a nonhearsay purpose or asked the court to “restrict the evidence to its proper scope and instruct the jury accordingly,” but Taylor’s counsel did neither. M.R.E. 105. As a result, we conclude that the trial judge was not in error in the decision to sustain the objection. Had Taylor’s counsel argued and offered the testimony for a nonhearsay purpose, under Rule 105, our conclusion may be different. The matter argued on appeal was not properly presented to the trial judge and not preserved for appellate review. Based on the manner in which the testimony was presented, the trial judge’s ruling to exclude the evidence was correct. We find no error and affirm the trial court’s decision as to this issue.

II. Whether the county court erred by entering a directed verdict on the issue of statutory damages under Mississippi Code Annotated section 95-5-10(2) instead of submitting the issue to the jury.

¶ 23. Taylor argues in his second issue that the county court committed reversible error when it granted a directed verdict in favor of the Galloways as to statutory damages under section 95-5-10(2). Taylor asserts that this is error because he presented evidence of his good-faith belief that he actually owned the property.

¶24. “This Court reviews the trial court’s grant or denial of a motion for a directed verdict under a de novo standard of review.” Ryals v. Bertucci, 26 So.3d 1090, 1094 (¶ 16) (Miss.Ct.App.2009). “In conducting such a review, we ‘must decide whether the facts presented, together with any reasonable inferences, considered in the light most favorable to the nonmoving party, point so overwhelmingly in favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff.’ ” Id. (quoting Troupe v. McAuley, 955 So.2d 848, 858 (¶ 28) (Miss.2007)).

¶ 25. To award statutory damages under section 95-5-10(2), the cutting must have been done “willfully, or in reckless disregard for the rights of the owner of such tree.” Further, section 95-5-10(2) specifically states what proof the Gallo-ways must offer:

To establish the right of the owner pri-ma facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.

¶ 26. Taylor argues that the county court erred when it granted a directed verdict on statutory damages and failed to submit this issue to the jury. Taylor claims that he submitted evidence that he did not act willfully or in reckless disregard for the Galloways’ rights. We agree. Taylor’s own testimony was sufficient to show that he did not act “in conscious disregard for the rights of the owner,” the Galloways. Taylor presented evidence that he believed he was the actual owner of the subject property. Thus, because there was conflicting evidence over whether Taylor acted willfully or in reckless disregard for the Galloways’ rights, the issue should have been presented to the jury.

¶ 27. The property in dispute was 3.92 acres of land that is located on the west side of Mt. Pilgram Road in Madison County, Mississippi. At trial, the parties disputed who owned the subject property. It was established that the Galloways were the actual owners, as evidenced by a warranty deed dated October 3, 1972. This fact is not disputed on appeal.

¶ 28. Taylor testified that he believed that he owned the subject property. He asserts that this belief was a good-faith belief and negates any willfulness or reckless disregard for the Galloways’ rights. Taylor’s belief of ownership is based on his history of familial land ownership immediately adjacent to and surrounding the subject property. Taylor’s grandfather owned several acres on the west and east sides of Mt. Pilgram Road. In 1954, Taylor’s grandfather partitioned all of his property among his five children: parcel one went to Jerry Taylor, Taylor’s father; parcel two went to Bessie Taylor B organ, Taylor’s aunt; parcel three went to Mattie Taylor Shaw, Taylor’s aunt; parcel four went to Willie Taylor, Taylor’s uncle; and parcel five went to Emma Taylor Stewart, Taylor’s aunt. Parcels four and five were on the west side of Mt. Pilgram Road, while the remaining parcels were on the east side of the road. In 1965, Taylor was deeded his father’s property (parcel one), all of which was on the east side of Mr. Pilgram Road. Taylor testified that he believed he owned the subject property because he was born on the subject property in 1931, and he frequently played on the property as a child.

¶ 29. In 2008, Taylor was preparing to sell portions of his property. He hired Kenneth Reese to survey his property, which Taylor thought included the subject property. Reese informed Taylor that he could not find any record evidence that Taylor owned the subject property.

¶ 30. Nevertheless, on May 12, 2008, Taylor entered into a logging contract with Henson Logging to log the subject property along with another piece of property. Harold Henson paid Taylor for the timber Henson cut and removed from the subject property. According to the Galloways, the fact that Taylor was told there was no record evidence of Taylor owning the subject property is indicative of his willfulness or reckless disregard for their rights.

¶ 31. Certainly, the Galloways may be correct. However, this issue should have been presented to a jury because Taylor presented conflicting evidence that he believed — in good faith — he owned the subject property. “Credibility determination[s], the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.” Garner v. Hickman, 733 So.2d 191, 194-95 (¶ 13) (Miss.1999) (citation omitted). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. Because there was enough conflicting evidence as to whether Taylor acted willfully or in reckless disregard for the Galloways’ ownership rights, the issue of statutory damages should have been submitted to the jury.

¶ 32. As a result, we reverse the award of statutory damages under section 95-5-10(2) and remand the case to the circuit court for a new trial on statutory damages. On remand, the circuit court shall have a jury determine whether statutory damages should be assessed against Taylor, and if so, the amount of such damages.

III. Whether the county court erred in awarding the Galloways’ court costs, including attorney’s fees, under Mississippi Code Annotated section 95-5-10(3).

¶ 33. In his final issue, Taylor argues that the county court committed reversible error when it awarded court costs and attorney’s fees. Section 95-5-10(3) provides that “[a]ll reasonable expert witness fees and attorney’s fees shall be assessed as court costs in the discretion of the court.” This provision gives a “trial judge discretion to award expert witness fees and attorneys’ fees to a litigant who prevails on a claim of cutting of timber.” Stockstill v. Gammill, 943 So.2d 35, 49 (¶ 29) (Miss.2006) (citation omitted). Our supreme court has ruled:

With the sole exception of punitive damages cases, in the absence of contractual provision or statutory authority therefor, this Court has never approved awarding trial expenses and attorney’s fees to the successful litigant. It has consistently been our view that such expenses are not allowable as part of the costs. Even where legal counsel for plaintiff unnecessarily put the opposing side to extra legal and trial expenses[,] we refused to permit an award of attorney’s fees.

Id. (quoting Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss.1986)). Further, in Stockstill, our supreme court held that a trial judge properly refused to award court costs and attorneys’ fees where the cutting of timber was done by mistake, and no statutory damages were awarded. Id. at 49-50 (¶¶ 29-30).

¶ 34. Because we reverse and remand the issue of statutory damages under section 95-5-10(2), we also reverse and remand the issue of court costs and attorney fees. We make no finding as to whether such costs should be assessed. Instead, section 95-5-10(3) gives the court discretion to award such costs, and the appropriate time to consider such award is at the conclusion of the case.

CONCLUSION

¶ 35. The award of compensatory damages was not the subject of this appeal. Thus, our conclusion does not impact the award of damages under section 95-5-10(1). We reverse the court’s entry of a directed verdict in favor of the Galloways as to the award of statutory damages under section 95-5-10(2) and remand the case to the circuit court for the jury to consider whether such damages are appropriate. We also reverse and remand the award of court costs, which included the Galloways’ attorney’s fees. At the conclusion of this matter, the trial court in its discretion shall determine whether to assess court costs and attorney’s fees under section 95-5-10(3).

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.

BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND MAXWELL, J.

RUSSELL, J.,

concurring in part and dissenting in part:

¶ 37. I would find that the county court erred in excluding a statement made by Taylor’s father on the basis of hearsay, because the statement was admissible to show Taylor’s state of mind. The declar-ant was also not available. Further, I would find that the error complained of by Taylor was apparent throughout the record under Mississippi Rule of Evidence 103(a)(2); therefore, I disagree with the majority’s conclusion that the matter argued by Taylor on appeal was not preserved for appellate review and respectfully dissent as to that issue. I agree with the majority that the issue of penal damages should have been submitted to the jury. Therefore, I concur with the majority’s decision to affirm the $17,425.64 in compensatory damages, reverse the award of penal damages of $43,010, and remand the issues of penal damages and court costs to the circuit court for a new trial pursuant to Mississippi Code Annotated section 11-51-79 (Rev.2012).

Whether a statement made by Taylor’s father to Taylor was erroneously excluded as hearsay.

¶ 38. Taylor argues that a statement made by his father indicating Taylor would own the subject property after his father’s death was not hearsay because the conversation was not offered to prove Taylor’s ownership of the property but was offered to show Taylor’s good-faith belief that he owned the property. “We review a trial court’s ruling regarding the admission or exclusion of evidence under an abuse-of-discretion standard of review.” Hester v. Samples, 74 So.3d 383, 388 (¶ 19) (Miss.Ct.App.2011). “ ‘Hearsay5 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” M.R.E. 801(c). The comment to Rule 801(c) states: “If the significance of a statement is simply that it was made[,] and there is no issue about the truth of the matter asserted, then the statement is not hearsay.” McCormick on Evidence notes that statements offered to show the effect on the hearer or reader are not hearsay when offered for that purpose:

A statement that D made a statement to X is not subject to attack as hearsay when its purpose is to establish the state of mind thereby induced in X, such as receiving notice or having knowledge or motive, or to show the information which X had as bearing on the reasonableness, good faith, or voluntariness of subsequent conduct, or on the anxiety produced.
In the situations discussed above, the out-of-court statement will frequently have an impermissible hearsay aspect as well as a permissible nonhearsay aspect. For example, an inspector’s statement that a customer’s tires are defective admitted to establish notice of the defective condition (with other proof being required to establish the condition) is susceptible of being used improperly by the trier of fact as proof that the tires were in fact defective. Unless the need for the evidence for the proper purpose is substantially outweighed by the danger of improper use, the appropriate result is to admit the evidence with a limiting instruction.

McCormick on Evidence § 249 (5th ed.1999) (emphasis added). See also Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 701 (Miss.1990) (noting that the truth of the statement is unimportant when a statement “may be seen to have an effect on the state of mind of those hearing it” and that “[t]he statement could be completely false, but the fact that someone told State Farm [the statement] makes its actions understandable”).

¶ 39. In this case, Taylor’s father made a statement to Taylor that the subject property would be his once his father died. According to Kenneth Reese, the surveyor, this statement is where Taylor formed his good-faith belief that he owned the subject property. The statement was not offered to prove Taylor actually owned the subject property — he did not. Instead, the statement was offered to show Taylor’s lack of willfulness or reckless disregard in cutting the timber and his good-faith belief that he owned the property. This statement should have been admissible to refute an award of penal damages. Because this statement was not offered to prove the truth of the matter asserted, it is not hearsay. Instead, the statement is admissible to show Taylor’s state of mind. In my view, on remand, the circuit court should allow the statement to be admitted if Taylor seeks to introduce it to support his position that he did not cut the trees willfully or in reckless disregard for the Galloways’ rights. Under these circumstances, a limiting instruction would be appropriate.

¶ 40. I have reviewed the majority’s opinion and must respectfully disagree with the majority’s conclusion that this issue was not preserved for appellate review. Under Rule 103(a)(2), an error asserted on appeal may be predicated upon a ruling which excludes evidence where “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” (Emphasis added). I would find that the error complained of by Taylor was apparent throughout the record, which provided the county court ample opportunity to admit the father’s statement with a limiting instruction. Even assuming that this issue was not preserved for appellate review, the majority is remanding the case to a jury to consider whether penal damages are appropriate. Therefore, the admissibility of the statement will come up again, and I would instruct the circuit court to allow such statement to be admitted if Taylor seeks its admission because, it is not hearsay.

¶ 41. Damages may be assessed only if the cutting was done “willfully, or in reckless disregard for the rights of the owner of such tree.” Miss.Code Ann. § 95-5-10 (Rev.2004). I note that good faith is not a defense to liability for the unlawful cutting of timber under subsection (1) of section 95-5-10 (Rev.2004) of the Mississippi Code Annotated. See id; see also Moorehead v. Hudson, 888 So.2d 459, 462 (¶ 8) (Miss.Ct.App.2004) (noting that “the statute specifically excludes ‘good faith’ as a defense to timber trespass”). However, subsection (2) does not bar a good-faith defense for penal damages. See Miss.Code Ann. § 95-5-10(2) (Rev.2004).

¶42. On appeal, Taylor does not dispute liability or the compensatory damages assessed against him under subsection (1) on appeal. Instead, he argues that the county court erred in granting a directed verdict on penal damages under subsection (2) and failing to submit this issue to the jury, because he did not act willfully or in reckless disregard for the Galloways’ rights. I agree that this issue should have been submitted to the jury because Taylor presented evidence that he believed he was the actual owner of the subject property. Thus, because there was conflicting evidence over whether Taylor acted willfully or in reckless disregard for the Galloways’ rights, the issue should have been presented to the jury. Therefore, I agree with the majority’s decision to reverse the award of penal damages and remand the case to the circuit court for a new trial on penal damages. Further, I agree that on remand, the circuit court shall have a jury determine whether penal damages should be awarded.

LEE, C.J., IRVING, P.J., AND MAXWELL, J., JOIN THIS OPINION.

      . Mississippi Rule of Evidence 105 provides:
      LIMITED ADMISSIBILITY
      When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. The official comment to the rule provides: This rule is a reflection of the existing practice of admitting evidence regarding one party or one purpose and excluding it as regarding another party or another purpose. ...
      The rule requires that the party affected make a request to limit the evidence. If no request is made, and consequently the evidence is admitted, existing practice suggests that no error has been committed.
        See Freed v. Killman, 192 Miss. 643, 6 So.2d 909 (1942).

      . The Galloways later purchased Willie Taylor’s property, which was adjacent to and north of the subject property on the west side of Mt. Pilgrim Road.

      . The remand to the circuit court is required pursuant to Mississippi Code Annotated section 11-51-79 (Rev.2012).


author: MAXWELL, J.,

text:
    Gary Lamar SMILEY and Mary Ann Smiley, Appellants v. Richard YLLANDER, Margaret Y. Jackson, Lynn Smiley Baker, Dan Smiley, Otto Yllander, Linda Y. Toler, Albert Yllander Jr., Kathryn S. MacDonald, Robert A. Smiley III and Mary Helen Smiley Shannon, Appellees.
    No. 2011-CA-00593-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      Gene Horne, Centreville, attorney for appellants.
    Wayne Smith, Liberty, attorney for ap-pellees.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This ease involves damages imposed against Gary Lamar Smiley and his wife, Mary Ann Smiley, for the wrongful removal of timber from property the chancellor found they held in trust for the plaintiffs’/appellees’ benefit. While Mississippi law requires clear and convincing evidence to establish the existence of a trust, here, we are uncertain whether the chancellor employed this standard when deciding the trust issue. We remand for the chancellor to consider whether clear and convincing evidence supports the existence of a trust. And if so, the chancellor must determine what portions of fault on the timber-removal claim, if any, should be attributable to settling defendants or nonparties. We affirm the misappropriation award.

Facts and Procedural History

¶ 2. Jeanette Smiley, an eighty-four-year-old retired bank employee with no children, executed a will on October 14, 2004, leaving her home in Amite County and fifty of the 140 acres on which it stood to her nephew, Gary, and his wife, Mary Ann. Jeanette expressly conditioned the devise on Gary and Mary Ann moving into her home and caring for her until her death. Jeanette’s will left the remaining ninety acres to fifteen other nieces and nephews.

¶ 3. On May 23, 2005, approximately five months after Gary and Mary Ann had moved into Jeanette’s home, Jeanette executed a general durable power of attorney in the couple’s favor, authorizing them to act on her behalf. Then, on November 28, 2005, Jeanette executed a warranty deed conveying all 140 acres of her property in Amite County, including the ninety-acre tract, to Gary and Mary Ann. Jeanette made the conveyance “trusting” Gary would follow her will. The warranty deed specifically expressed that:

This conveyance is executed trusting that Gary Lamar Smiley will follow the dictates of my Last Will and Testament with regard to the disposition of the above described property. In the event, however, that said Gary Lamar Smiley should predecease me, then, in that event, his executor/administrator shall follow the dictates and dispose of said property according to my Last Will and Testament.

(Emphasis added).

¶ 4. Jeanette died on July 5, 2006. And less than a month later, Gary and Mary Ann began clear-cutting the property’s timber. Though Jeanette’s will left the couple only fifty of the 140 acres, Gary and Mary Ann concentrated their timber-cutting efforts on the separate ninety-acre tract — the property Jeanette had reserved in her will for other family members.

¶ 5. The plaintiffs — ten devisees of the ninety-acre tract — sued Gary and Mary Ann; Timberland Management Services Inc.; Eddie Franklin; and Buffalo Wood, Land, and Timber Inc. The plaintiffs sought damages for the wrongful harvesting of timber on this tract, alleging that Gary and Mary Ann held the ninety-acre tract in trust for their benefit. They also claimed Gary and Mary Ann had misappropriated over $100,000 from Jeanette. The plaintiffs settled with Timberland, Franklin, and Buffalo Wood for a total of $98,000 for their role in harvesting timber on the ninety acres. But the plaintiffs proceeded to trial against Gary and Mary Ann.

¶ 6. After holding a trial, during which she reviewed the will and warranty deed, the chancellor found the deed to Gary and Mary Ann had created some sort of trust, subject to the express terms of Jeanette’s will. Finding Gary and Mary Ann held the ninety-acre tract in trust for the plaintiffs’ benefit, the chancellor awarded the plaintiffs $292,319.32 for wrongful timber removal. She also awarded the plaintiffs $44,692.62 on their misappropriation claim.

Discussion

¶ 7. On appeal, Gary and Mary Ann argue the chancellor erred in (1) applying damages set forth in Mississippi Code Annotated section 95-5-10 (Rev.2004), (2) determining a trust arose from the warranty deed, (3) valuing the damages, and (4) finding they misappropriated Jeanette’s funds.

Standard of Review

¶ 8. We will not disturb a chancellor’s findings if supported by substantial evidence unless the chancellor abused his or her discretion, was manifestly wrong, or applied an incorrect legal standard. Sanderson v. Sanderson, 824 So.2d 623, 625-26 (¶ 8) (Miss.2002) (citation omitted). We review a chancellor’s legal conclusions de novo. Joel v. Joel, 43 So.3d 424, 429-30 (¶ 18) (Miss.2010).

I. Wrongful Removal of Timber

A. Applicability of Section 95-5-10

¶ 9. As to the wrongful-timber-removal claim, Gary and Mary Ann argue the chancellor erred in applying section 95-5-10 rather than assessing damages under the doctrine of waste. Both parties agree section 95-5-10 provides the exclusive remedy for cutting trees without consent. See Stockstill v. Gammill, 943 So.2d 35, 47 (¶ 24) (Miss.2006). However, Gary and Mary Ann argue section 95-5-10’s statutory damages were not available since they owned the ninety-acre tract as either co-tenants or life tenants with the plaintiffs. As they see it, due to their claimed co-ownership, any damages resulting from their authorization to cut the trees should have instead been assessed under the common-law doctrine of waste. See Tolbert v. Southgate Timber Co., 943 So.2d 90, 98-99 (¶ 29) (Miss.Ct.App.2006) (“[W]hen some but not all with ownership interests authorized agents to conduct the cutting, those claims are for waste whether against the contracting owners or against their agents as joint tortfeasors.”).

¶ 10. But a claim for waste only applies against those involved in the cutting of commonly owned timber. And here, the chancellor found the couple did not hold the ninety-acre tract as cotenants with the plaintiffs but were instead trustees “who owed an ever higher duty to them.” Based on this “trust” relationship, the chancellor determined the plaintiffs could recover for wrongful timber removal from the ninety-acre tract. Since the existence or imposition of this claimed trust is material to our review of the chancellor’s findings on the appropriate remedy for tree removal, we must closely examine the trust issue.

B. The Trust for Plaintiffs’ Benefit

¶ 11. Generally, trusts are classified under two broad categories: (1) express trusts and (2) implied trusts. Express trusts arise from a party’s manifestation of an intention to establish such an agreement and are created by a trust instrument. Miss.Code Ann. § 91-9-103(a) (Supp.2012). If the trust holds real property as an asset, the trust agreement must be in writing and signed by the grantor. Miss.Code Ann. § 91-9-1 (Rev.2004); Alvarez v. Coleman, 642 So.2d 361, 366-67 (Miss.1994).

¶ 12. While an express trust must be written, implied trusts differ in that they arise by implication of the law or are presumed from the circumstances. Mississippi recognizes two types of implied trusts: (1) resulting trusts and (2) constructive trusts. A resulting trust “is designed to give effect to the unwritten but actual intention of the parties at the time of the acquisition of title to the affected property.” In re Estates of Gates, 876 So.2d 1059, 1064 (¶ 17) (Miss.Ct.App.2004) (quoting Robert E. Williford, Trusts, 8 Encyclopedia of Mississippi Law § 73:2, at 422 (2001)). A constructive trust is a judicially imposed remedy used to prevent unjust enrichment when one party wrongfully retains title to property. McNeil v. Hester, 753 So.2d 1057, 1064 (¶24) (Miss. 2000). The primary difference between the two is that “in a resulting trust, the acquisition ... is mutually agreeable[,] and the inequity arises out of the trustee’s subsequent unwillingness to honor the terms of the parties’ original agreement”; whereas a constructive trust may be imposed when “acquisition of title is somehow wrongful as to the purported beneficiary!.]” Simmons v. Simmons, 724 So.2d 1054, 1057 (¶ 7) (Miss.Ct.App.1998).

¶ 13. Here, the chancellor found a trust existed but did not distinguish the particular type. Though both parties insist the chancellor imposed a constructive trust, or something akin to it, a plain reading of her order shows she likely found Jeanette had intended to create an express trust by executing the deed “trusting” Gary would follow the dictates of her will — which did in fact leave the ninety-acre tract to the plaintiffs. According to the chancellor, the deed “was subject to the terms of the will and did not serve to vest fee title in the Smiley Defendants.” That the chancellor likely believed an express trust, rather than implied trust, arose is further supported by her finding that Gary and Mary Ann had “knowingly and willfully violated the explicit terms of that trust.”

¶ 14. But regardless of the type of trust implicated, “to establish a trust, the evidence must be more than a mere preponderance. The proof must be clear and convincing.” Lee v. Yeates, 256 So.2d 371, 372 (Miss.1972) (emphasis added). And here, it is not at all obvious whether this standard was employed. We note that in the chancellor’s order indicates she found:

Plaintiffs have met their burden of proof by a preponderance of the evidence on all necessary elements and are entitled to recover for the wrongful removal of the timber from the acres devised to them under the terms of the will. Even though the property was conveyed to the Smiley Defendants, such conveyance was specifically subject to a trust for Plaintiffs’ benefit, and the Smiley Defendants knowingly and willfully violated the explicit terms of that trust.

(Emphasis added). While the chancellor may have indeed considered the trust issue separately under the clear-and-convincing-evidence standard, she did not specifically say so in her order. This omission, coupled with the chancellor’s reference to the preponderance standard when describing the burden of proof “on all necessary elements,” supports our decision to remand to ensure the chancellor considers the trust issue under the clear-and-convincing-evidence standard. See Estate of Langston v. Williams, 57 So.3d 618, 622 (¶ 17) (Miss.2011).

C. Measure of Damages

¶ 15. Gary and Mary Ann also take issue with chancellor’s use of the delivered value of the timber in crafting the damages award. In Mississippi, the appropriate measure of damages in a wrongful-timber-removal case is the value of the harvested timber. Under section 95-5-10(1), an owner is entitled to double the fair market value of any timber wrongfully cut and removed from his property. While the fact an owner can recoup double damages is clear enough, the tricky part is determining the fair market value.

¶ 16. Obviously, the fair market value of “uncut timber on the stump” is lower than that of timber already cut and hauled. Bay Springs Forest Prods., Inc. v. Wade, 435 So.2d 690, 696 (Miss. 1983). “And, if any processing has occurred in the yard, value is further enhanced.” Id. Recognizing the inherent difficulties in determining the appropriate quantum of damages for wrongfully cut timber, our supreme court has looked to the culpability of the timber trespasser to set the measuring stick. “Where trees have been cut and removed through inadvertence or mistake, the proper measure of damages is the stumpage value, the value of the standing trees, unenhanced by any labor of the trespasser.” Masonite Corp. v. Williamson, 404 So.2d 565, 568 (Miss.1981) (citations omitted). But “when a trespass is willful, ... the value of the timber as enhanced by the trespasser’s labor in cutting, loading, and hauling the timber” — commonly known as the timber’s “delivered value” — is the appropriate measure of damages. Id. (citations omitted). The delivered value is also the appropriate quantum of damages when an unknowing party purchases converted timber from a willful trespasser. Id.

¶ 17. Here, the plaintiffs’ forestry expert testified the harvested timber’s delivered value was $178,233.50, while its stumpage value was $120,836.16. The chancellor adopted the delivered value as the appropriate measure of damages, which Gary and Mary Ann claim was an erroneous decision. But the chancellor found the couple had clearly known the ninety-acre tract along with its timber, was not theirs when they clear-cut it. As evidence, she pointed to a May 5, 2006 email from Gary supporting this knowledge. Since we cannot say the chancellor abused her discretion in finding Gary and Mary Ann willfully removed the timber, we find use of the timber’s delivered value when deciding damages was proper.

¶ 18. Still, we cannot affirm the damages award for two reasons. First, as discussed, we find remand is appropriate to ensure the trust issue is decided under the clear-and-eonvineing-evidence standard. If on remand the chancellor finds the evidence is not clear and convincing that a trust existed or should be imposed, there would be no damages owed to the plaintiffs. And second, the chancellor erred in deciding that apportionment of fault is impermissible in timber-removal cases, which we discuss next.

D. Apportionment of Fault

¶ 19. Gary and Mary Ann sought to apportion fault to settling defendants and nonparties. The chancellor considered their request, ultimately denying it. Mississippi Code Annotated section 85-5-7(5) (Rev.2011) instructs that, in cases involving joint tortfeasors, “the trier of fact shall determine the percentage of fault for each party alleged to be at fault without regard to whether the joint [tortfeasor] is immune from damages.” The Mississippi Supreme Court has stated “that the term ‘party,’ as used in [section 85-5-7(5)], refers to any participant to an occurrence which gives rise to a lawsuit, and not merely the parties to a particular lawsuit or trial.” Estate of Hunter v. Gen. Motors Corp., 729 So.2d 1264, 1276 (¶44) (Miss.1999).

¶20. Timberland, Franklin, and Buffalo Wood settled with the plaintiffs prior to trial for $98,000. While the chancellor properly offset the plaintiffs’ recovery by this amount, she found apportionment did not apply in timber-removal claims. So she neither considered the percentage of fault of the settling defendants, nor any nonparties, as required by section 85-5-7(5). Therefore, we remand for specific findings of the respective percentages of fault, if any, attributable to settling defendants and nonparties.

II. Misappropriation

¶ 21. The chancellor found that during the two years Gary and Mary Ann had lived with Jeanette, the couple had deposited $110,782.43 of Jeanette’s funds into their personal bank accounts. The chancellor credited Gary and Mary Ann $39,224.25 for funeral expenses, nursing home expenses, and the cost of Jeanette’s sitters, but found the couple had misused and misappropriated the remaining $71,508.18. She found the plaintiffs were 10/16ths (62.5%) owners of the estate’s personal assets and awarded $44,692.62 in damages for misappropriation. Gary and Mary Ann argue the chancellor erred in not further reducing this amount $20,508.38 for repairs to Jeanette’s home, and $11,976.74 for Jeanette’s living expenses.

¶ 22. The chancellor has sole authority to determine the credibility of the witnesses and what weight to give to the evidence. Joel, 43 So.3d at 435 (¶ 41). And though Gary and Mary Ann claimed Jeanette had been pleased with the renovations to her home and had approved of the couple’s lavish spending, the chancellor obviously disbelieved their testimony. The chancellor reasoned that because the couple had known they would receive the home and fifty acres, any funds spent repairing the home had ultimately benefitted them. The chancellor also found there had been no accounting for the mineral lease. We find no reason to either question these findings or disturb her decision not to credit Gary and Mary Ann additional monies they claim were utilized for Jeanette’s living expenses. We affirm the misappropriation award.

Conclusion

¶ 23. On remand, the chancellor should analyze the trust issue under the clear- and-convincing-evidence standard. If after doing so, the chancellor determines a trust exists or should be implied, then she should make specific findings of the respective percentages of fault attributable to the settling defendants and non-parties, if any, and enter a final judgment accordingly.

¶ 24. THE JUDGMENT OF THE AM-ITE COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED IN PART, AND THIS CASE IS REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE TO BE DIVIDED EQUALLY BETWEEN THE APPELLANTS AND THE APPELLEES.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, RUSSELL AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . The chancellor awarded $235,268.22 for the harvested timber and $14,850 for reforestation costs, and assessed $80,001.90 in punitive damages. The chancellor also awarded $11,100 for expert-witness fees and $49,099.02 in attorneys' fees. The total judgment for the wrongful removal of timber was $390,319.32, which the chancellor reduced to $292,319.32, after crediting Gary and Mary Ann for the $98,000 the plaintiffs had already received from settling codefendants.

      . Section 95-5-10(1) provides, in pertinent part:
      If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional^] and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.

      . The chancellor’s denial of Gary and Mary Ann's claim was made off the record but is obvious from the context of the trial testimony.


author: RUSSELL, J.,

text:
    WAYNE FARMS LLC and Pacific Employers Insurance Company, Appellants v. Clairol WEEMS, Appellee.
    No. 2012-WC-00782-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.

      Joseph T. Wilkins, III, Jackson, attorney for appellants.
    John Raymond Tullos, Raleigh, attorney for appellee.
    Before IRVING, P.J., BARNES and RUSSELL, JJ.
   RUSSELL, J.,

for the Court:

¶ 1. Wayne Farms LLC (“Wayne Farms”) and Pacific Employers Insurance Company (“Pacific Employers”) appeals the order of the Mississippi Workers’ Compensation Commission (“Commission”) affirming the award of permanent and total disability benefits to Clairol Weems. Finding the decision of the Commission was supported by substantial evidence, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Weems was employed by Wayne Farms from 1992 until October 8, 2006, where she held various positions during her time of employment. On or about May 1, 2006, while working in the company’s evisceration department, Weems injured her back while bending over to lift an ice-filled pan. Weems informed her supervisor, Ann Barnes, about her injury, stating that she had “pulled a muscle” in her back. Weems went to the nurse’s station to inform safety manager Bo Gieger of her injury, but he was out of the office. Weems notified the area supervisor, Ricky Pitts, of her injury the following day.

¶ 3. On May 11, 2006, Weems sought treatment for her injury at the MEA Medical Clinic in Laurel, Mississippi. She was examined by Dr. Brian Williams, who diagnosed her with lumbar strain and referred her to a neurosurgeon, Dr. Molleston. On August 24, 2006, Weems was examined by Dr. Molleston. Dr. Molleston informed Weems that she had suffered from a large central herniated disk and central disk protrusion in her back, and warned her of possible permanent damage if her condition was not surgically corrected. Weems returned to work, and continued to seek treatment for her injuries at the MEA Medical Clinic until October 2006. Weems met with Dr. Molleston for a follow-up on October 8, 2006. Dr. Molleston instructed Weems to stop working due to her condition. During this "visit, Weems agreed to undergo surgery for her injury.

¶ 4. On November 2, 2006, Weems underwent lumbar fusion surgery. On January 10, 2007, Weems returned for a followup visit with Dr. Molleston, and complained of severe back pain. After an examination, Dr. Molleston advised Weems that she was suffering from a spinal-fluid leak and that a second surgery was necessary. Weems underwent a second surgery to repair the spinal-fluid leak on April 12, 2007. According to Dr. Molleston, Weems’s recovery status was poor; and, her physical impairment was far too extensive for her to pursue any substantial gainful activities. Weems was informed that her injury rendered her totally disabled and that she could no longer return to work.

¶ 5. Weems filed a petition to controvert on August 22, 2007. After a series of scheduling conflicts, a hearing before the administrative judge was held on September 19, 2011. The administrative law judge found that Weems’s injury arose out of and in the course of her employment at Wayne Farms, and ordered Wayne Farms and Pacific Employers to pay Weems permanent and total disability benefits. An order to that effect was entered on September 29, 2011. A hearing before the Commission was held on March 12, 2012. The Commission affirmed the order of the administrative law judge, and entered an order to that effect on April 26, 2012. From this order, Wayne Farms and Pacific Employers now appeal.

DISCUSSION

¶ 6. “The standard of review in workers’ compensation [cases] is well established.” Miss. Sec. Police v. Patterson, 64 So.3d 526, 528 (¶ 11) (Miss.Ct.App.2011). “The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law.” Id. (citing Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778 (¶ 6) (Miss.2003)). With regard to workers’ compensation claims, “[t]he claimant has the initial burden of proof to show by a preponderance of the evidence that he suffered an accidental injury arising out of and in the course of employment.” Frito-Lay, Inc. v. Leatherwood, 908 So.2d 175, 179 (¶ 19) (Miss.Ct.App.2005) (citing Hedge v. Leggett & Platt, Inc., 641 So.2d 9, 12 (Miss.1994)). The burden of proof shifts to the employer once the claimant establishes a prima facie case. Id.

¶ 7. The appellants contend that the decision of the Commission was not supported by substantial evidence and was reached in error. We disagree. During the hearing before the administrative judge, Weems stated that she had never suffered from severe back pain prior to her injury. Weems also testified that her back pain has worsened since the date of her injury to her back at work. A medical examination by Dr. Molleston revealed that Weems suffered from lumbar strain, and that the strain was the result of heavy lifting. Dr. Molleston opined that the pulled muscle in Weems’s back was the result of bending over to pick up an ice-filled pan while performing her job duties at Wayne Farms. The extent of Weems’s back injury was so severe that it was medically necessary for her to undergo two surgeries. Even after the surgeries, Dr. Molleston informed Weems that she was still unable to pursue any substantial gainful activities, and that she would never be able to return to work.

¶8. The appellants argue that Weem’s disability was the product of a preexisting degenerative condition and not a work-related injury. This contention is largely based on the fact that Weems suffered from arthritis and was previously diagnosed with multiple myeloma. According to the appellants, Weems has not proven that her disability was caused by heavy lifting at work or whether it was just an exacerbation of her pre-existing health conditions. The Mississippi Supreme Court has held that in workers’ compensation claims, “[a] claimant does not have to prove with absolute medical certainty that his work-related injuries were the cause of his disability.” Leather-wood, 908 So.2d at 180 (¶ 24). “[A]ll that is necessary is that the medical findings support a causal connection.” Id. (citing Sperry-Vickers, Inc. v. Honea, 894 So.2d 1380, 1385 (Miss.1981)). A causal connection may be established so long as there is medical testimony that supports a finding of disability. Id. (citing Hall of Miss., Inc. v. Green, 467 So.2d 935, 938 (Miss.1985)).

¶ 9. As shown above, the record contains ample medical evidence that supports a causal connection between Weems’s physical impairment and her performing her job duties at Wayne Farms. Weems’s medical records show that her injury consisted of a large central disk herniation and disk protrusion, which occurred when she pulled a muscle in her back while bending over. Weems stated that she was bending over in attempt to lift a pan while at work. Thus, Weems has satisfied her burden of showing by a preponderance of the evidence that her injury arose out of and in the course of her employment. For these reasons, we find the appellants’ argument to be without merit.

CONCLUSION

¶ 10. Based on the testimony and medical evidence in the record, we cannot say that the decision of the Commission was not based on substantial evidence. The record shows that the decision was not arbitrary or capricious, nor was it based on an erroneous application of the law. Therefore, we affirm the decision of the Commission.

¶11. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: ROBERTS, J.,

text:
    Vinh NGUYEN, Appellant v. Dustin GIFFORD and Roslyn Gifford, Appellees.
    No. 2011-CA-01053-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    James David Moore, Tupelo, attorney for appellant.
    Roy 0. Parker Jr., Tupelo, attorney for appellees.
    Before GRIFFIS, P.J., ISHEE and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. This appeal stems from a breach-of-contract suit filed by Dustin and Roslyn Gifford (Giffords) against Vinh Nguyen on February 19, 2008, in the Lee County Chancery Court. Subsequently, a default judgment was entered against Nguyen. After filing an unsuccessful motion to set aside the default judgment, Nguyen executed the current appeal.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Giffords and Nguyen entered into a contract for Nguyen to purchase a piece of real estate from the Giffords. After one failed contract, the parties entered into a subsequent contract for the purchase of the same piece of real estate. The second contract failed due to Nguyen’s refusal to purchase the real estate. The breaches of these contracts are the subjects of the current appeal.

¶ 3. The Giffords first filed suit against Nguyen on February 19, 2008, claiming breach of contract. Nguyen was personally served with process on February 21, 2008. He failed to file an answer or enter an appearance in the matter; therefore, the Giffords filed an application for entry of default on March 26, 2008. The chancery clerk entered a default against Nguyen the following day. Then, on April 17, 2008, the Giffords filed a motion for a default judgment in the chancery court, and a default judgment was granted on May 20, 2008. In the default judgment, the chancery court found that Nguyen entered into a contract with the Giffords to purchase the real estate, but Nguyen failed to perform under the contract. The chancery court further found that the Gif-fords were entitled to specific performance of the contract, or the Giffords were entitled to $375,000 plus $2,000 in earnest money tendered if Nguyen failed to specifically perform the contract within thirty days. The Giffords were entitled also to $16,965.44 in interest and attorney’s fees. The amount of the judgment was subject to reduction if the Giffords sold the real estate.

¶ 4. Nguyen filed a motion to set aside the default judgment on September 22, 2008. Following a hearing held on October 19, 2010, the chancery court denied Nguyen’s motion to set aside the default judgment. The chancery court also reduced the amount Nguyen owed on the contract by $275,000 due to the subsequent sale of the real estate.

¶ 5. Aggrieved by the chancery court’s denial of his motion to set aside the default judgment, Nguyen executed the current appeal and raises four issues:

I. Whether unrepresented [Nguyen’s] contacting [the Giffords’] counsel and advising him [that] the claim was disputed constituted an appearance for purposes of triggering the three[-]day notice of intent to take a default judgment requirement[.]
II. [W]hether ... there was valid service of process reflected in the record.
III. [W]hether ... a lawsuit was proper due to an arbitration agreement. ...
IV. [W]hether ... [default] judgment [was] appropriate as to Roslyn since she never signed the subject contract.

ANALYSIS

¶ 6. While Nguyen raises these four issues in his appeal, his brief is absolutely devoid of citations to any authority on any issue submitted. Mississippi Rule of Appellate Procedure 28(a)(6) (emphasis added) provides: “The argument [in the appellant’s brief] shall contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.”

¶ 7. “Failure to cite authority in support of claims of error precludes this Court from considering the specific claim on appeal.” Pickering v. Industria Masina I Traktora, 740 So.2d 836, 848 (Miss.1999) (citing R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990)). Because Nguyen has failed to provide this Court with any authority to support his contentions, we find that the issues are procedurally barred from our review, and we decline to address the issues raised.

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

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ„ CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.