author: FAIR, J., JAMES, J.,

text:
    Kacey Allison ARRINGTON, Appellant v. Doyle W. THRASH and Rebecca Lynn Thrash, Appellees.
    No. 2012-CA-00051-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.

      Rankin County Chancery Court, Hon. Dan H. Fairly, J.
    Robert Fred Lingold Jr., attorney for appellant.
    Sharon Patterson Thibodeaux, attorney for appellees.
   FAIR, J.,

for the Court:

¶ 1. Allison Arrington appeals the Rankin County Chancery Court’s judgment granting grandparents’ visitation to Doyle and Rebecca Thrash. This is a “factor case,” a chancery court matter requiring discussion of the facts in the context of certain enumerated factors. Mar tin v. Coop established that ten such factors must be addressed on the record in all grandparent visitation cases brought under Mississippi Code Annotated section 93-16-3 (Supp.2012). However, the “Martin factors” are not to be weighted and are not all-inclusive; Martin calls on a chancellor to also “weigh all circumstances and factors he feels to be appropriate.” Id.

¶ 2. In this case the grandparents were awarded extensive visitation comparable to that which would ordinarily be awarded to a noncustodial parent. Allison, the child’s mother, raises three issues on appeal. She contends the chancellor erred (1) in úsing the ten Martin factors to determine whether the Thrashes were entitled to grandparent visitation; (2) in awarding excessive visitation to, the Thrashes under Martin; and (3) in changing the child’s surname. We affirm the grant of visitation to the grandparents, but we find no authority to change the birth certificate and reverse and render as to that issue only.

FACTS

¶ 3. On September 3, 2005, Jonathan Thrash, the nineteen-year-old son of Doyle and Rebecca Lynn Thrash, was cleaning up Hurricane Katrina debris at his parents’ home with a “Bobcat” when it turned over, killing him.

¶ 4. A very short time later the Thrashes were contacted by Allison Arrington, who told them that Jonathan was the father of her daughter Payton, born in late April 2005. She said she had not told Jonathan, claiming he died not knowing of the existence of his child. It was the first time the Thrashes had heard of the existence of Allison or Payton. A DNA test, proposed and paid for by the Thrashes, confirmed Allison’s representations of paternity, and a relationship began between Allison, Pay-ton, and the Thrashes.

¶ 5. Beginning when Payton was four months old, the Thrashes regularly kept her in their home on weekends and holidays, sometimes for a week or more at a time. Notably, at the very beginning of their relationship with Payton, they had her in their custody during the Thanksgiving holiday weekend of 2005, when they took six-month-old Payton, as well as Allison, to visit Payton’s great-grandparents in Tennessee. At one point Payton was in her grandparents’ home almost continuously for nearly a year. Over the four and a half years the Thrashes had custodial visitation, Allison gave birth to two other illegitimate children. The Thrashes took Payton, her younger siblings, and Allison on an occasional vacation trip together. The Thrashes contributed financially to Payton’s support and aided in obtaining Jonathan’s Social Security benefits for Payton, paying money owed by Jonathan to the Social Security Administration. Also, they set up a room in their home exclusively for Payton and had birthday and holiday parties for her each year. The extent of their involvement with their granddaughter and her mother is recorded in great detail in family calendars beginning in 2006, and in a “baby book” they call their “mamaw and papaw book.” At the hearing, the Thrashes introduced a photograph of their first meeting with Payton when she was four months old, along with a number of photographs chronicling their contacts with Payton over the years. The chancellor found specifically that the relationship between Payton and her grandparents was a “viable” one. See Miss.Code Ann. § 93 — 16—3(2)(a).

¶ 6. On May 18, 2010, just after Payton’s fifth birthday, Allison cut off her visitation with the Thrashes. Doyle Thrash had recently contacted the Mississippi Department of Human Services concerning Pay-ton and her two siblings. On a regular visitation day, Doyle had gone to Allison’s residence where she lived with “Bull,” her boyfriend and the father of her two other children. Payton told her grandfather through the window, “I can’t get Mommy up. She won’t come to the door.” Doyle testified at the hearing that, on that day, Allison seemed to Doyle to be incapacitated by substance abuse. Doyle had rung her doorbell for over thirty minutes before she finally came to the door. He testified that, on an earlier occasion, he had observed Allison’s two younger children playing in their own feces. Allison sent the Thrashes a series of text messages informing them they would not see Payton again because of the “stunt” Doyle “pulled” by calling DHS. DHS later advised him that Allison had surrendered custody of Payton and her two other children to their maternal grandmother and entered treatment for drug and alcohol abuse.

¶ 7. In September, after being denied contact with Payton since May, the Thrashes filed this action for grandparent visitation, which also sought to change Payton’s surname to that of her father.

¶ 8. Rule 81 process was served on Allison on October 1, 2010, for a hearing on Monday, November 29, 2010. Her attorney filed a motion for a continuance on November 24, claiming she was required to attend a hearing elsewhere. When the court and counsel for the Thrashes discovered the motion in the court file, the court called the attorney’s office and was advised by her staff that they had no idea where she was. Nothing in the record indicates the motion was ever heard or granted, and an extensive hearing took place on the date set without Allison or her counsel present, resulting in sixteen pages of on-the-record Martin factor discussion in the fifty-five-page hearing transcript.

¶ 9. At the hearing the Thrashes testified extensively of a close and viable relationship with Payton spanning most of her life. Following their testimony, the chancellor adjudicated their status as grandparents entitled to visitation on two independent statutory grounds because (1) their child was deceased and (2) they also had an established, close relationship with their grandchild. In his extended discussion on the record, the chancellor addressed each of the Martin factors, finding that “each and every factor favors an award of grandparents visitation” to the Thrashes. He then awarded them “Farese visitation” — the same visitation that would generally have been accorded to a parent — and also ordered the change of Payton’s birth certificate by addition of Jonathan’s name as her father and the change of her surname from Arrington to Thrash.

¶ 10. Pertinent to this court’s jurisdiction under a timely notice of appeal is that, on December 6, 2010, Allison filed what we consider to be a Rule 59 motion. It remained pending for two years during which time other motions, temporary orders, agreed orders, conferences of counsel and parties (and on occasion with the court, followed by announcements and rulings on the record, one of which included the grant of grandparent visitation to Pay-ton’s maternal grandmother), and contested hearings before the chancellor took place, until the December 2010 motion was finally denied on December 11, 2012. Allison, represented by new counsel when the denial was entered, filed her notice of appeal on January 5, 2012.

¶ 11. Payton was five years old when this litigation commenced, was less than four months from turning age seven when it was appealed, and is now eight years old. The surname she has been using since December 2010 does not appear of record.

¶ 12. The three issues submitted on appeal relate only to determinations made at the November 2010 hearing. Allison contests the chancellor’s award of extensive visitation in light of Martin’s call for “overwhelming” factor support of such an award, as well as the change of Payton’s surname on her birth certificate. Allison neither asserts nor argues any other error in any other ruling made by the chancellor after that November 2010 hearing. She does not object in this appeal to the hearing taking place on the return date and in her absence. The chancellor had denied from the bench a continuance motion, discovered in the court file on the day of hearing, the Monday after Thanksgiving. It had been filed in the afternoon of the Wednesday before the holiday, and Allison had been on notice for fifty-nine days prior to the hearing through service on her of a Rule 81 summons on October 1. The chancellor held that neither he, his office, the attorney for the Thrashes, nor the Thrashes had received any notice of the filing of the motion until they arrived in court for the hearing. The chancellor directed a call by his office to Allison’s counsel, whose office staff advised her whereabouts were unknown.

STANDARD OF REVIEW

¶ 13. In the seminal grandparent visitation case, Martin v. Coop, 693 So.2d 912, 915 (Miss.1997), acknowledged by both sides as controlling, the Mississippi Supreme Court held: “[Vjisitation and restrictions placed upon it are within the discretion of the chancery court.” We are “bound to accept the findings of the chancellor unless he is manifestly wrong or there is clearly an abuse of discretion.” Id.

DISCUSSION

1. Grandparent Visitation

¶ 14. Allison admits in her brief that “pursuant to statute, the Thrashes are entitled to have periods of visitation with Payton.” However, she posits as her first asserted error that the chancery court erred in using the Martin factors to determine whether the Thrashes were entitled to visitation at all, claiming that those factors are only to be used to determine the amount of visitation, after entitlement to visitation has been found appropriate.

¶ 15. Though her assertion is somewhat confusing, her argument seems to be that the chancellor made the right decision in awarding some visitation but that he made it in the wrong way and in the wrong amount. The discussion that follows will address the grandparent visitation statutes, application of the Martin factors in context of those statutes, and, in particular, the heightened consideration of facts under those factors when visitation approaching that normally accorded a parent is found possible or appropriate.

¶ 16. Mississippi Code Annotated section 93-16-3(1) states:

Whenever a court of this state enters a decree or order awarding custody of a minor child to one (1) of the parents of the child or terminating the parental rights of one (1) of the parents of a minor child, or whenever one (1) of the parents of a minor child dies, either parent of the child’s parents may petition the court in which the decree or order was rendered or, in the case of the death of a parent, petition the chancery-court in the county in which the child resides, and seek visitation rights with the child.

Subsection (2) further provides:

Any grandparent who is not authorized to petition for visitation rights pursuant to subsection (1) of this section may petition the chancery court and seek visitation rights with his or her grandchild, and the court may grant visitation rights to the grandparent, provided the court finds:
(a) That the grandparent of the child had established a viable relationship with the child and the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child; and
(b) That visitation rights of the grandparent with the child would be in the best interests of the child.

¶ 17. The chancellor stated that before determining the extent of the visitation to be awarded, if any, he must first determine whether the issue of grandparent visitation, a purely statutory concept, was properly before him. He said:

Before the Court can award grandparents’ visitation rights, it must first do an analysis ... utilizing the factors enumerated in the case of Martin v. Coop, 693 So.2d 912, a Mississippi 1997 case.
The first factor I’m to consider — well, I guess before I should start on those, I should note for the record that this ... situation ... would fall under Mississippi Code Annotated [section] 93-16-3 subpart (1), but I could also consider it under subpart (2) as well. Subpart (1) of [section] 93-16-3 relates to a situation where there’s been a termination of parental rights or ... the death of the natural father. Subpart (2) is referred to as the viable relationship subsection. It does not necessarily require a showing of termination of parental rights or the death of the natural father. Either way[,] I’m obligated to do this analysis.

¶ 18. Having established the threshold entitlement of the Thrashes to bring this action, the chancellor then extensively discussed, as provided in Martin, whether visitation would be in Payton’s best interest.

¶ 19. Martin sets out ten factors for a chancellor to consider and discuss in determining both whether to award grandparent visitation and then, if it is awarded, its extent. As for extent, Martin emphasizes that “[grandparents do not stand in lieu of or in the shoes of the' deceased parent.” Martin, 693 So.2d at 915-16. Further, the court stated that “visitation granted to grandparents should not be equivalent to that which would be granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it should be.” Id. at 916 (emphasis added). The Martin court again reiterated that “[t]he visitation should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelmingly] dictate that that amount of visitation is in-the best interest of the child, and it would be harmful to the child not to grant it.” Id. (emphasis added).

¶ 20. The issue, then, is whether, under the facts of this case, the chancellor exceeded his discretion by awarding liberal visitation similar to what would be customarily awarded to a parent.

¶ 21. That the chancellor was aware of Martin and its restrictions is obvious on the record as quoted above. The chancellor nevertheless awarded eighty days of weekend and summertime visitation, plus extensive holiday visitation, to the Thrashes. That is an award similar to that which the supreme court had reversed in Martin (eighty-one days in odd- and eighty-six days in even-numbered years).

¶ 22. The chancellor in Martin, however, had made his award specifically because of, and not despite, the fact that it was the “same visitation that he would award to a non-custodial parent.” See id at 915-16. Without the benefit of the supreme court’s guidance, he had viewed such an award to be the intent of the grandparent visitation statute. The Martin decision clarified that “equivalent visitation” was not a starting point, but that it could be an ending point only in appropriate cases. See id at 916. The chancellor in today’s case decided that this is one of those cases.

¶ 23. In later decisions citing Martin, our supreme court has continued to hold that “making findings of fact under the Martin factors is an integral part of a determination of what is in the best interest of a child.” T.T.W. v. C.C., 839 So.2d 501, 505 (¶ 12) (Miss.2003). On that basis, “the Martin factors are to be applied and discussed in every case in which grandparent visitation is an issue. Furthermore, when a chancellor finds that there are circumstances that ‘overwhelmingly dictate’ that a grandparent should be awarded equivalent visitation to that of a parent, those findings must be fully discussed on the record.” Townes v. Manyfield, 883 So.2d 93, 97 (¶ 29) (Miss.2004) (citation omitted).

¶ 24. In this case, the chancellor applied all ten Martin factors and fully discussed on the record his reasons for awarding enhanced or equivalent visitation to the Thrashes, though he did not use phrases like “equivalent visitation” or “more than usual” in doing so. In his discussion the chancellor did enumerate the facts set out above and discussed the Thrashes “keeping the baby for significant periods of time” in the past, as well as the child’s age and anticipated school attendance. He further cited the grandparents’ exceptional presence in her life during pri- or and current “formative years,” and the fact that he sees “no present reason to disrupt or stop” the “viable relationship” that was “already established between this child and her paternal grandparents.” Questioning the grandparents himself from the bench and discussing it on the record, the chancellor determined that the Thrashes understood clearly that they would not undermine Allison’s discipline of Payton, reciting that both Doyle and Rebecca “clearly understand that Allison remains the captain of the ship insofar as the rearing of Payton is concerned and that they shall defer to her on decisions such as healthcare, education, [and] spiritual upbringing. ...”

¶ 25. The facts in this case contrast with those in Martin in two critical aspects — the mother’s substance abuse and the amount of time regularly spent by Payton with her grandparents from infancy to kindergarten age. In addition, in Martin the mother had remarried and was in an “intact nuclear family.” That is not true in this case.

¶ 26. The record shows that Allison had a history of substance abuse and had neglected her children. Doyle Thrash testified to the incident that triggered this litigation — when he went to pick up Payton and Allison was unable to come to the door for half an hour, as described in more detail above. Doyle’s reporting of the incident to DHS led to Allison terminating the Thrashes’ contact with Payton, whom Allison had surrendered along with her two other illegitimate children to Allison’s mother when Allison sought treatment for substance abuse, according to DHS. The record also revealed that Payton had lived with the Thrashes for a significant portion of her life — at one point “most of the time for most of an entire year.” The Thrashes had also taken Payton, and on more than one occasion her mother and siblings, with them on trips.

¶ 27. In his discussion of the Martin factors, the chancellor found that “based upon uncontradieted evidence, [the Thrashes] have participated extensively in the life of [Payton] since she was approximately four and a half months old.” The chancellor recognized that he was awarding greater than usual grandparent visitation, but expressly found it to be in Pay-ton’s best interest under the unique facts of this case. We find he was within his discretion in doing so.

2. Changing the Child’s Surname

¶ 28. Finally, Allison argues that the chancellor erred in adjudicating:

[T]he Mississippi Department of Vital Statistics should be, and hereby is, ordered and directed to amend the birth certificate of Payton Makenzie Arring-ton, a female child born April 26, 2005, to reflect the name of her natural father as Jonathan Eric Thrash and further to change the name of said minor child to Payton Makenzie Thrash.

¶ 29. Mississippi Code Annotated section 41-57-23 (Supp.2012) provides that any pleading filed in the chancery court to change a birth certificate, “including, changes or additions to a birth certificate resulting from a legitimation, filiation or any changes not specifically authorized elsewhere,” including specifically the surname of a child, shall name the State Board of Health as a respondent. The petitioner must also send a certified copy of the pleading to the State Board of Health and/or serve process on the State Registrar of Vital Records. Answer by the State Board of Health is mandated.

¶ 30. The statute excepts adoption cases, which are also expressly excepted under the adoption proceedings statutes, Mississippi Code' Annotated sections 93-17-1 to -31 (Rev.2004 & Supp.2012). Paternity proceedings under Mississippi Code Annotated section 93-9-1 to -49 (Rev.2004 & Supp.2012) likewise allow for an exception. Those statutes provide for child support cases, which are generally initiated by DHS; but which may also be initiated by “the mother, or father, the child, or any public authority chargeable by law with the support of the child.”

¶ 31. There is no authority in the grandparent visitation statutes, Mississippi Code Annotated section 93-16-1 to -7 (Rev.2004 & Supp.2012), for change of a birth certificate, nor can we find any general- statute addressing the change of the name of a minor child on a birth certificate without the inclusion of the State Board of Health as a necessary party, other than the two exceptions noted above.

¶ 32. Accordingly, since section 41-57-23 applies, we must reverse the decision of the chancellor changing Payton’s surname on her birth certificate.

¶ 33. THE JUDGMENT OF THE RANKIN COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND RENDERED IN PART AS TO THE CHANGE OF NAME. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES. .

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J„ CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J.

JAMES, J.,

concurring in part and dissenting in part:

¶ 34. I agree with the majority’s finding that the chancellor was without authority to amend the child’s birth certificate and change her surname. However, the chancellor erred in granting grandparents’ visitation. Allison’s motion for a continuance should have been granted in order to allow Allison to appear in court. Also, DNA testing alone does not establish paternity, as there must be an adjudication of paternity with the proper parties before the court, prior to an award of grandparents’ visitation. Therefore, I would reverse and remand the award of visitation to allow the adjudication of paternity after the death of the father to be brought by the proper party, and to allow all necessary parties to be present in court for both the adjudication of paternity and the petition for grandparents’ visitation.

¶ 85. Mississippi Code Annotated section 93-16-5 (Rev.2004) states: “All persons required to be made parties in child custody proceedings or proceedings for the termination of parental rights shall be made parties to any proceeding in which a grandparent of a minor child ... seeks to obtain visitation rights with such minor ehild[.]”

¶ 36. Mississippi Code Annotated section 93-15-107(1) (Rev.2004) lists “the mother of the child” as a necessary party in an action to terminate parental rights. The statute provides that the mother shall be a party defendant in a custody dispute. Id. Here, Allison was a necessary party. Therefore, her presence was required in order for the chancellor to award visitation to the Thrashes. Furthermore, the record shows that Allison’s attorney filed a motion for a continuance. I find the chancellor erred in denying this motion because Allison was not properly present during the proceeding as section 93-16-5 mandates. “[T]he requirement for the joinder of necessary parties in section 93-16-5 is jurisdictional.” Bolivar v. Waltman, 85 So.3d 335, 337 (¶ 8) (Miss.Ct.App.2012) (citing Garrett v. Bohannon, 621 So.2d 935, 937-38 (Miss.1993)). “[T]o give validity and credence to the trial court’s judgment without the presence of necessary parties would undermine the legislative mandate in section 93-16-5.” Id. (citing Garrett, 621 So.2d at 937). For this reason, I feel that the chancellor’s award of visitation to the Thrashes in Allison’s absence is reversible error. In the majority opinion, it is pointed out that the Thrashes made numerous allegations against Allison in her absence. However, Allison should have been present in view of the seriousness of the charges and also because of the relief requested.

¶ 37. In Martin v. Coop, 693 So.2d 912, 915-16 (Miss.1997), the Mississippi Supreme Court emphasized that “[grandparents do not stand in lieu of or in the shoes of the deceased parent.” Further, in Martin the court stated that “visitation granted to grandparents should not be equivalent to that which would be granted to a non-custodial parent unless the circumstances overwhelmingly dictate that it should be.” Id. at 916. (emphasis added). The court reiterated that “[t]he visitation should be less than that which would be awarded to a non-custodial parent, unless the circumstances overwhelmingly] dictate that that amount of visitation is in the best interest of the child, and it would be harmful to the child not to grant it.” Id. (emphasis added).

¶ 38. Here, after analyzing the Martin factors, the chancellor awarded eighty days of weekend and summertime visitation, plus extensive holiday visitation, to the Thrashes. However, the chancellor failed to make an on-the-record finding of how granting the Thrashes the same visitation that would have been granted to the deceased father is in the best interest of the child, and there is no proof in the record that it would be harmful not to grant it. I find the visitation awarded to the Thrashes was excessive because it was essentially the same visitation that would be awarded to a non-custodial parent.

¶ 39. Also, Allison is a necessary party to any determination of paternity. The genetic test results admitted into evidence stated that “[t]he alleged grandparents, Rebecca B. Thrash and Doyle W. Thrash, cannot be excluded as the biological parental grandparents of the child named Pay-ton M. Arrington[,] and the probability of grandparent age is 99.999%.” However, the DNA test alone does not establish paternity; it creates a rebuttable presumption of paternity. And, there must be other proof presented pursuant to Mississippi Code Annotated section 93-9-27 (Rev.2004). The Thrashes stated in their petition that the child’s paternity had been established via DNA testing. The court stated as part of its order that paternity had been legally established by DNA testing and that the result of the DNA testing had been made a part of the record. However, the record does not show that there was any adjudication of paternity prior to this hearing.

¶ 40. The Thrashes did not cite any statute for adjudication of paternity after the death of the father. However, Mississippi Code Annotated section 93-9-9(1) (Rev.2004) states that a petition to establish paternity and change the surname of the father can be brought by the mother, the father, the child, or a “public authority chargeable by law with the support of the child.” The statute further requires that such an adjudication after the death of the father must be made by clear and convincing evidence. Paternity actions under this statute can be brought until the child reaches age twenty-one, unless the child has been emancipated as set forth in Mississippi Code Annotated sections 93-5-23 (Rev.2004) and 93-11-65 (Rev.2004).

¶ 41. Mississippi Code Annotated section 91-l-15(3)(c) (Rev.2004) also deals with the adjudication of paternity after the death of the father. Under this code section, the action must be filed within one year after the father’s death, or within ninety days after the first publication of the notice to creditors to present their claims, whichever is less. See Perkins v. Thompson, 551 So.2d 204, 208 (Miss.1989); see also Prout v. Williams, 55 So.3d 195, 198 (¶ 11) (Miss.Ct.App.2011). It appears that the Thrashes did not have standing to bring a paternity action after the death of the father, under Mississippi Code Annotated section 93-9-9(1), and that the statute of limitation had run for them to bring the action under section 91 — 1—15(3)(c).

¶ 42. For the reasons set out above, I would reverse and remand the award of grandparent visitation.

IRVING, P.J., JOINS THIS OPINION.

      . Martin v. Coop, 693 So.2d 912, 916 (Miss.1997), was most recently reviewed and discussed by our highest court in Smith v. Wilson, 90 So.3d 51 (Miss.2012).

      . M.R.C.P. 81.


source: Caselaw Access Project

author: IRVING, P. J.,

license: Public Domain

text:
    Rafael A. MARIN, Appellant v. Mario O. STEWART, Appellee.
    No. 2012-CA-00834-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.

      Brent M. Bickham, Ocean Springs, attorney for appellant.
    Timothy Lee Murr, Gulfport, attorney for appellee.
    Before IRVING, P.J., BARNES and MAXWELL, JJ.
   IRVING, P. J.,

for the Court:

¶ 1. On April 15, 2010, Rafael A. Marin filed a complaint in the Harrison County Chancery Court seeking joint legal custody and visitation rights regarding his child with Mario 0. Stewart and an order for him to pay a reasonable sum of child support. After the initial hearing, the chancellor entered a temporary order requiring Marin to pay $455.23 per month in child support, which the chancellor finalized in the final order. Marin filed a motion to reconsider, which the chancellor denied.

¶ 2. Feeling aggrieved, Marin appeals and argues that the chancellor erred by (1) ordering him to pay twenty-five percent of his adjusted-gross income for child support; (2) failing to consider the shared-parenting arrangement between him and Stewart; (3) failing to consider the total assets of the parties; (4) erroneously factoring in Marin’s wife’s work status; (5) penalizing Marin for residing for free with his mother, but ignoring the fact that Stewart also lives with her parents for free; (6) declining to consider evidence at the final hearing that Stewart failed to disclose $1,000 in Social Security benefits on her Uniform Chancery Court Rule 8.05 financial statement; and (7) declining to consider that Marin had moved from his mother’s home at the time of the final hearing.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. At the time of the initial hearing, Marin worked as a bellman at the Beau Rivage Hotel and Casino in Biloxi, Mississippi. After considering testimony from Marin and Stewart that Marin regularly received cash tips, the chancellor adjusted Marin’s 2009 gross income from $27,199.07 to $28,000. Stewart testified- that when she and Marin lived together, Marin would earn cash tips from $50 to over $100 per day. She further testified that Marin told her that he does not report his tips to the IRS. Stewart worked as a front-office manager at the Four Points by Sheraton in Biloxi, Mississippi. Her gross income for 2010 was $25,018. Stewart lived with her parents at the time of the initial hearing and stated that she paid whatever she could in monthly rent, ranging from $100 to $300. Marin and his wife lived with his mother and did not pay rent or any other household expenses. Stewart testified that she pays $105 per week for daycare and claimed that living expenses for her child with Marin are $1,497.66 per month.

¶ 5. Marin testified that his mother was willing to take care of the child for free to eliminate the cost of daycare. However, Stewart expressed that she would rather pay for their child to attend daycare than allow the child to stay with Marin’s mother because (1) Marin’s mother’s house is too far away from her job; (2) it would be better for the child to be in a place where he can be active around other children; and (3) she believes that Marin’s mother is unreliable, sleeps most of the day, and smokes in the house, even though Marin insists that she does not.

¶ 6. After the initial hearing, the chancellor determined that Marin should pay in child support more than the fourteen percent of his adjusted-gross income prescribed by Mississippi Code Annotated section 43-19-101 (Supp.2012). The chancellor concluded that because Marin lived at home with his mother and his wife had a separate income, Marin’s “income certainly [could] be stretched much further than what would be provided for under the schedule.” The chancellor further reasoned that at fourteen percent, Marin would be paying “way less than what it actually costs for [Stewart] to keep the child in the daycare.” Due to time constraints, the chancellor ordered that an additional hearing be held at a later date in order for Marin to have an opportunity to cross-examine Stewart. The chancellor entered a temporary order setting the amount of child support at $455.23 per month. The chancellor later finalized this amount in a final order after the second hearing.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 8. Appellate courts apply a limited standard of review in domestic-relations cases and will not reverse the chancellor’s judgment unless the chancellor applied an erroneous legal standard or his findings were manifestly wrong or clearly erroneous. Yelverton v. Yelverton, 26 So.3d 1053, 1056 (¶ 11) (Miss.2010). Questions of law are reviewed de novo. Id.

¶ 9. Section 43-19-101 provides guidelines that suggest the percentage of the non-custodial parent’s adjusted gross income that should be paid to the custodial parent to support a certain number of children. The statute provides that the amount of child support for one child should be fourteen percent of the noncustodial parent’s adjusted gross income. Miss.Code Ann. § 43-19-101(1). There is a rebuttable presumption that these guidelines are appropriate. Id. The chancellor may deviate from the guidelines if he makes an on-the-record finding that the application of the guidelines is inappropriate. Miss.Code Ann. § 43-19-101(2). Mississippi Code Annotated section 43-19-103 (Supp.2012) provides the following criteria upon which the chancellor must make a finding on the record to rebut the presumption that the guideline amount is appropriate:

(a) Extraordinary medical, psychological, educational^] or dental expenses.
(b) Independent income of the child.
(c) The payment of both child support and spousal support to the obligee.
(d) Seasonal variations in one or both parents’ incomes or expenses.
(e) The age of the child, taking into account the greater needs of older children.
(f) Special needs that have traditionally been met within the family budget even though fulfilling those needs will cause the support to exceed the proposed guidelines.
(g) The particular shared parental arrangement, such as where the non[-]custodial parent spends a great deal of time with the children thereby reducing the financial expenditures incurred by the custodial parent, or the refusal of the non[-]custodial parent to become involved in the activities of the child, or giving due consideration to the custodial parent’s homemaking services.
(h) Total available assets of the obligee, obligor and the child.
(i) Payment by the obligee of child care expenses in order that the obligee may seek or retain employment, or because of the disability of the obligee.
(j) Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

I. Shared Parenting

¶ 10. Marin contends that section 43-19-103(g) is a criterion that the chancellor failed to consider. He argues that his voluntary extended-visitation arrangement with Stewart satisfies section 43-19-103(g) and would justify a downward deviation from the child-support guidelines. Marin did not raise this issue before the chancellor, and he is procedurally barred from asserting it for the first time on appeal. See Wilburn v. Wilburn, 991 So.2d 1185, 1191 (¶ 14) (Miss.2008).

¶ 11. Procedural bar notwithstanding, while section 43-19-101(2) requires that the chancellor make specific findings under the criteria in section 43-19-103 in order to deviate from the guidelines, it does not require that all criteria be considered in order for the findings to be sufficient. See Hensarling v. Hensarling, 824 So.2d 583, 588 (¶¶ 13-15) (Miss.2002) (affirming the chancellor’s reasoning that the guidelines were inappropriate when the chancellor’s findings only addressed two of the criteria under section 43-19-103); Smith v. Smith, 25 So.3d 369, 374 (¶¶ 14-15) (Miss.Ct.App.2009) (affirming the chancellor’s on-the-record findings when his findings only applied to two of the criteria listed under section 43-19-103).

¶ 12. Here, the chancellor stated on the record his reasons for deviating from the guidelines. Although his reasoning did not include an analysis of Marin’s visitation arrangement — which was not enough to warrant a deviation from the guidelines since there is no indication in the record that the visitation reduced Stewart’s financial expenditures — the chancellor’s findings on the record indicate that he deemed the guidelines inappropriate because fourteen percent of Marin’s adjusted gross income would have been less than what it costs to keep the child in daycare. The chancellor’s reasoning properly falls under section 43-19-103®, as the child must go to daycare in order for Stewart to retain employment. Therefore, there is sufficient evidence to justify the chancellor’s determination that the application of the guidelines were inappropriate. This issue is without merit.

II. Total Assets of the Parties

¶ 13. Marin also claims that the chancellor misapplied the law or used an incorrect legal standard by dismissing as irrelevant the fact that Stewart did not disclose on her Rule 8.05 financial statement the $1,000 per month that she receives in Social Security benefits. He argues that under section 43-19-103(h), the chancellor must consider all of the assets of the parties before determining that the statutory percentage is inappropriate. Stewart receives the $1,000 on behalf of her other child, whose father is deceased. When Marin brought the omission to the chancellor’s attention during the final hearing, the chancellor stated that although Stewart should have disclosed the benefit, he would -not change his ruling. The chancellor acknowledged that the benefit was for another child, but stated that Stewart could spend the money however she pleased. Nevertheless, the chancellor did not consider the undisclosed Social Security benefits a reason to decrease Marin’s child-support obligations. We cannot find that the chancellor erred in this regard because, despite the chancellor’s finding that Stewart has wide latitude in determining how to spend the Social Security benefits, the benefits belonged to Stewart’s other child. This issue is without merit.

III. Marin’s Wife’s Income

¶ 14. Marin contends that the chancellor misapplied the law by considering Marin’s wife’s income in awarding child support because section 43-19-101(3)(a) prohibits such consideration. Marin is also procedurally barred from raising this issue, as it was not raised in the chancery court. Nevertheless, as we explain below, this issue is without merit.

¶ 15. According to section 43-19-101(3)(a), the income of the payor’s current spouse is excluded when determining the payor’s gross income for the purposes of child support. Although the chancellor briefly mentioned the fact that Marin’s wife worked full-time, there is no evidence that the chancellor considered Marin’s wife’s income when calculating Marin’s gross income. The chancellor reasoned that because Marin’s wife worked full-time—and because the couple lived with his mother—they likely shared the few expenses they incurred as a couple, which supported the chancellor’s determination that Marin’s child-support payments should be more than the fourteen percent suggested by section 43-19-101. We do not find that the chancellor based the amount of child support on Marin’s wife’s income.

IV Marin’s and Stewart’s Residential Statuses

¶ 16. Marin also asserts that the chancellor’s findings are erroneous because they penalize him for living with his mother and do not penalize Stewart, who lives with her parents as well. The chancellor reasoned that because Marin was living with his mother and not paying rent, he had virtually no expenses, while Stewart, even though she too was living with her parents, had the daily expenses required to care for a child, including daycare.

¶ 17. Marin further asserts that the chancellor should have allowed him to testify during the final hearing about his change in residential status, as he had moved out of his mother’s house by the time of the final hearing. He claims that as a result of the move, he was incurring additional expenses, which amounted to a material change in circumstances. Marin offers no authority to support his assertion that the chancellor erred in declining to consider his testimony. Consequently, he is procedurally barred from making this argument. See Edmonds v. Edmonds, 935 So.2d 980, 988 (¶ 22) (Miss.2006). Procedural bar notwithstanding, we briefly address this issue. The chancellor informed Marin that he was required to file a petition requesting a modification in child support if there was a material change in circumstances. We do not understand how Marin could file a petition for modification of child support, however, as the chancellor had not yet issued a final order. We acknowledge that, at one point, the chancellor stated that he was deviating from the guidelines because Marin lived at home and basically paid nothing. However, immediately after making that statement, the chancellor stated the following:

And the guidelines say you may deviate from the guidelines if you have reasons to do so. And what I find is that [Stewart] is a single mother who has nobody to rely on to take care of that child and she has to put the child in daycare and she has a great deal of expense with that, and [Marin] has virtually no other legitimate expenses other than basic food and very little more and he has an awful lot of help. So I would say I am going to go up from the guidelines and deviate from the guidelines. So I would set the basic child support at instead of 14 percent of his adjusted gross income to 25 percent of his adjusted gross income.

While the minimal living expenses that Marin enjoyed changed after he moved out of his mother’s home, we cannot find that the chancellor erred in not allowing him to give additional testimony regarding his increase in living expenses, as we do not find that the chancellor’s decision to deviate upward from the guidelines was based solely on Marin’s minimal living expenses.

¶ 18. Finding no merit to any of the issues raised by Marin, we affirm the judgment of the chancellor.

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

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

      . As discussed later in the opinion, by the time of the final hearing, Marin had moved out of his mother's home.

      . During the initial hearing, Marin was represented by counsel. However, during the final hearing, he was pro se.


author: LEE, C.J.,

text:
    Joseph Dewayne JOHNSON, Appellant v. SYSCO FOOD SERVICES and New Hampshire Insurance Company, Appellees.
    No. 2011-WC-01086-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.

      Carlos Eugene Moore, Tangala Laniece Hollis, Grenada, attorneys for appellant.
    Jefferson Pinckney W. Skelton, Pamela S. Ratliff, Ridgeland, attorneys for appel-lees.
    Before LEE, C.J., MAXWELL and FAIR, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Joseph Dewayne Johnson filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) on August 14, 2008, alleging he sustained a work-related injury to his knees on March 14, 2008. Johnson’s employer, Sysco Food Services (Sysco), and its carrier, New Hampshire Insurance Company, denied compensability. After a hearing, the administrative judge (AJ) denied benefits, finding insufficient proof to establish a causal connection between Johnson’s injury and employment. The full Commission affirmed the AJ’s order denying benefits.

¶ 2. Johnson now appeals, asserting the Commission erred in denying him workers’ compensation benefits.

FACTS

¶ 3. Johnson was a delivery-truck operator with Sysco. Johnson testified that on March 14, 2008, he was walking down the ramp of the delivery truck and began suffering pain in his knees. Johnson did admit that his knees had begun hurting in February 2008 and had steadily worsened. Johnson attempted to correct the situation with knee braces and over-the-counter medicine. After suffering the pain in his knees on March 14, Johnson sought treatment the following day at th Central Mississippi Medical Center (CMMC) emergency department. According to hospital records, Johnson presented with right-knee pain, which he stated had begun two weeks prior when he was running. Johnson denied any history of trauma to his right knee. The records do not contain any mention by Johnson of left-knee pain or injury.

¶4. Dr. Gary McCarthy, an orthopedic surgeon, examined Johnson on March 31, 2008. Dr. McCarthy diagnosed Johnson with internal derangement of his right knee. A scan of Johnson’s right knee revealed a medial meniscus tear. Dr. McCarthy opined that based on Johnson’s description of the injury and his work duties, Johnson’s right-knee injury was “most likely” work related. Dr. McCarthy could not state whether Johnson’s left-knee injury was work related. Johnson’s final appointment with Dr. McCarthy was May 9, 2008.

¶ 5. Dr. Howard T. Katz, a physiatrist, conducted an independent medical evaluation of Johnson on July 13, 2009. Dr. Katz noted “there has been no specific injury to [Johnson’s] right or left knee that is documented well in the medical records,” but “[biased on the history by [Johnson,] he injured his knees in early 2008 at work.” Dr. Katz opined Johnson had reached maximum medical improvement for both knees. Dr. Katz assigned Johnson’s right knee a one percent impairment rating and his left knee a zero percent impairment rating.

¶ 6. Johnson was also examined by Dr. David Gandy, an orthopedic surgeon, on May 5, 2010. Dr. Gandy initially believed Johnson suffered a work-related injury to his right knee but not his left knee. After reviewing all of Johnson’s medical records, Dr. Gandy amended his opinion to conclude that Johnson’s right-knee injury was not work related. Dr. Gandy stated it was “not within a reasonable degree of medical probability that the right knee was causally related to the described on-the-job injury.”

STANDARD OF REVIEW

¶ 7. “This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence.” Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss.Ct.App.2006). “The Commission sits as the ultimate finder of fact; its findings are subject to normal[] deferential standards upon review.” Id. We will only reverse the Commission’s ruling when its findings of fact are unsupported by substantial evidence- or the decision was arbitrary and capricious. Id. “Matters of law are reviewed under the de novo standard of review.” Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 448 (¶ 8) (Miss.Ct.App.1999).

DISCUSSION

¶ 8. The two issues raised by Johnson are essentially the same — whether the Commission erred in denying him workers’ compensation benefits. Mississippi’s workers’ compensation statutes compensate an injury “arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.” Miss.Code Ann. § 71-3-3(b) (Rev.2011). The term “arising out of employment” simply means there is a “causal connection between the employment and the injury.” Singley v. Smith, 844 So.2d 448, 453 (¶ 20) (Miss.2003). One is injured in the course of employment when an injury results from activity actuated partly by a duty to serve the employer or reasonably incident to the employment. Id.

¶ 9. Johnson must prove by a preponderance of the evidence that he suffered “an accidental injury arising out of and in the course of his employment!,] and a causal connection between the injury and the claimed disability.” S. Miss. Elec. Power Ass’n v. Graham, 587 So.2d 291, 294 (Miss.1991) (citation omitted). Furthermore, Johnson must “establish every essential element of the claim!,] and it is not sufficient to leave the matter to surmise, conjecture!,] or speculation.” Id. Johnson’s claim of injury and assertions as to the cause of the injury are convoluted, at best. Johnson allegedly developed knee pain in February 2008 but failed to seek medical treatment until March 15, 2008. Johnson waited until May 2008 to report the injury to Sysco. While seeking treatment for his knee pain, Johnson told a nurse at CMMC that he had injured his knee while running, and denied any work-related injury.

¶ 10. The AJ found the medical testimony is also insufficient to establish a work-related injury. Dr. McCarthy admitted he determined Johnson’s injury was “most likely” work related due to the medical history given to him by Johnson. Dr. McCarthy also opined that twisting would have caused Johnson’s right-knee injury but noted there was no record of any specific trauma to Johnson’s knees. Dr. Katz noted the medical records did not contain sufficient documentation of a right- or left-knee injury. Dr. Gandy ultimately determined Johnson’s injuries were not work related. The Commission agreed with the AJ’s findings, and we find this decision was supported by substantial evidence.

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

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


text:
    Brenda WASHINGTON, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-01452-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.

      Brenda Washington, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ,
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. Brenda. Washington was terminated from her job in the DeSoto County School District. Washington thereafter filed for unemployment benefits with the Mississippi Department of Employment Security (MDES). After investigating the matter, the MDES claims examiner determined Washington was disqualified from receiving benefits due to misconduct. The administrative judge (AJ) held a hearing and ultimately affirmed the decision of the claims examiner. The MDES Board of Review (the Board) also affirmed, adopting the AJ’s facts and conclusions. Washington appealed to the DeSoto County Circuit Court, which affirmed the Board’s decision.

¶ 2. Washington now appeals, asserting she is entitled to unemployment benefits because she did not commit misconduct.

STANDARD OF REVIEW

¶ 3. Our restrictive standard of review for administrative appeals is well known. In the absence of fraud and if supported by substantial evidence, an order from the Board on the facts is conclusive in the trial court. Miss. Emp’t Sec. Comm’n v. PDN, Inc., 586 So.2d 838, 840 (Miss.1991). On appeal, employees have the burden of overcoming a rebuttable presumption in favor of the Board’s decision. Miss. Emp’t Sec. Comm’n v. Noel, 712 So.2d 728, 730 (¶5) (Miss.Ct.App.1998). 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. Miss. Comm’n on Envtl. Quality v. Chickasaw Cnty. Bd. of Supervisors, 621 So.2d 1211, 1215 (Miss.1998).

DISCUSSION

¶ 4. In her only issue on appeal, Washington argues that she did not commit misconduct; thus, she should be awarded unemployment benefits. A definition of the term “misconduct” can be found in Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), which provides:

[T]he 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, [come] 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.

(Citation omitted). Washington claims the only evidence produced to support her termination was hearsay. However, this Court has stated that “if hearsay, even if not corroborated in the traditional sense, is highly probative because it has strong indicia of reliability, it can at least in many situations be substantial evidence.” McClinton v. Miss. Dep’t of Emp’t Sec., 949 So.2d 805, 814 (¶ 29) (Miss.Ct.App.2006).

¶ 5. Washington worked for the school district as a cook, cashier, and server. Washington had worked at different school locations over the course of her employment. On September 23, 2011, Washington admittedly had a verbal altercation with another employee. Both employees were admonished by Amy Wells, the supervisor who witnessed the argument. The next day, Washington and the same coworker began arguing again. Debra Pickett, the cafeteria manager, spoke with Cynthia Coleman, the child-nutrition director, about the incident. Coleman instructed Pickett to have Washington clock out for the day and go home. Lindsey Lauderdale, the child-nutrition administrator, was told of the altercations by several people, including Wells. Washington was discharged shortly thereafter. There was testimony that Washington had been transferred three times to different schools due to problems getting along with her coworkers. Washington’s termination notification states she was discharged for being “uncooperative, [having a] negative attitude, and causing] conflict.”

¶ 6. According to the employee handbook, inappropriate conduct such as “failure to interact courteously and tactfully with managers/supervisors, coworkers, and students to the point that productivity or morale suffers may be grounds for discipline including termination.” Washington signed an acknowledgment that she received a copy of the employee handbook. Washington did admit to having personal conflicts at work. We find substantial evidence to support the Board’s decision; thus, we affirm the trial court’s decision to uphold the Board’s denial of unemployment benefits to Washington.

¶ 7. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED.

IRVING AND GRIFFIS, P. JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: MAXWELL, J.,

text:
    Brenda FAIR, Appellant v. MISSISSIPPI DEPARTMENT OF EMPLOYMENT SECURITY, Appellee.
    No. 2012-CC-01723-COA.
    Court of Appeals of Mississippi.
    Sept. 24, 2013.
    Brenda Fair, appellant, pro se.
    Albert B. White, Madison, Leanne Franklin Brady, attorneys for appellee.
    Before LEE, C.J., ROBERTS, CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. In this unemployment-benefits case, Brenda Fair appeals the circuit court’s dismissal of her appeal from the Mississippi Department of Employment Security Board of Review. Because Fair did not file her appeal within twenty days, as- required by statute, we agree with the circuit court that her appeal was untimely. Thus, we affirm the dismissal.

Facts and Procedural History

¶ 2. Fair sought unemployment benefits, claiming she had been laid off by her employer, the Hamilton-Ryker Group. On June 26, 2012, the MDES claims examiner denied Fair’s request on the basis that Fair had “voluntarily left work because of personal reasons.” Disagreeing that she had left work voluntarily, Fair appealed to the administrative law judge (ALJ), who on July 24, 2012, affirmed the claims examiner’s decision. Fair then appealed to the Board, which also affirmed the ALJ’s decision to deny benefits.

¶ 3. The Board mailed its decision to Fair on August 17, 2012. The Board’s written decision not only advised Fair of its denial, but also notified her in writing that “[a]n appeal may be filed in the [c]ir-euit [cjourt in the county in which you reside by 09/06/2012, which is 20 calendar days from the date this decision was mailed.” But Fair did not adhere to the September 6, 2012 deadline. Instead, she waited until September 14, 2012, to appeal to the circuit court. Citing the untimeliness of Fair’s appeal, the MDES filed a motion to dismiss. The circuit court agreed Fair’s appeal was untimely and entered an order of dismissal. Fair now appeals.

Discussion

¶ 4. While Fair argues the merits of the Board’s denial of her request for unemployment benefits, the circuit court’s dismissal was based solely on the untimeliness of her appeal. We review a trial judge’s grant of a motion to dismiss de novo. Keyes v. Miss. Dep’t of Emp’t Sec., 95 So.3d 757, 759 (¶ 4) (Miss.Ct.App.2012).

¶ 5. It is not missed by this court that Fair’s brief, which is more akin to a letter than an appellate brief, does not comply with Rule 28(a) of the Mississippi Rules of Appellate Procedure in several material respects. And this noncompliance alone serves as a procedural bar to our review. Still, aside from her procedural defaults, we find the circuit court properly dismissed Fair’s appeal as time-barred.

¶ 6. There are two relevant time periods we view in combination when assessing the timeliness of the appeal in an unemployment-benefits case. The first concerns the actual decision of the Board, which becomes “final” ten days after the date of notification. Miss.Code Ann. § 71-5-529 (Rev.2011). And here, the Board’s decision was mailed on August 17, 2012. So it became final on August 27, 2012.

¶ 7. The second relevant time period is also statutory and gave Fair an additional “ten (10) days after the decision of the [Board] ha[d] become final” to secure judicial review by commencing an action, in the circuit court of the county in which she resides, against the reviewing department. Miss.Code Ann. § 71-5-531 (Rev.2011). Thus, just as Fair had been notified in the Board’s written denial of benefits, she had a total of twenty days from the date of mailing to appeal the Board’s decision to the circuit court. See Keyes, 95 So.3d at 759 (¶ 6) (finding under sections 71-5-529 and 71-5-531, an aggrieved party has a total of twenty days to appeal).

¶ 8. But by waiting until September 14, 2012, to appeal, Fair missed the twenty-day deadline of September 6, 2012. While her appeal was only eight days late, in Keyes we held a mere one day tardiness required dismissal. Id. at 759-60 (¶¶ 6-8).

¶ 9. Because we “strictly construe” these statutory deadlines, and find no good cause to extend them here, we find the circuit judge properly dismissed Fair’s appeal as untimely. See id. at 760 (¶ 9). We affirm.

¶10. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS AFFIRMED.

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

      . There is no statement of the issues, statement of the case, summary of the argument, argument, or conclusion. See M.R.A.P. 28(a)(3) — (7). An appellant’s failure to present her brief in this required fashion is a procedural bar to appellate review.


author: PARKER, Justice.

text:
    MILLER TRUCKING, LLC, et al. v. APAC MID-SOUTH, INC., et al.
    1110724.
    Supreme Court of Alabama.
    Jan. 11, 2013.
    Rehearing Denied March 15, 2013.

      Michael K. Beard and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellants.
    Christopher S. Berdy of Butler, Snow, O’Mara, Stevens & Cannada, PLLC, Birmingham, for appellees.
   PARKER, Justice.

Miller Trucking, LLC, Ben Miller, and Miriam Miller (hereinafter collectively referred to as “the Miller plaintiffs”) appeal a summary judgment in favor of APAC Mid-South, Inc. (“APAC”), Oldcastle Materials, Inc. (“Oldcastle Materials”), and Steve Reynolds (hereinafter collectively referred to as “the defendants”). We reverse the judgment and remand the case.

Facts and Procedural History

The facts of this appeal are based on contracts between the Alabama Department of Transportation (“ADOT”) and APAC and between APAC and Miller Trucking. APAC is an aggregate-supply company with quarries in Alabama; Reynolds is APAC’s sales manager for materials in Alabama. As will be discussed in greater detail below, ADOT hired APAC to provide aggregate materials for distribution to counties, and APAC, in turn, hired Miller Trucking to haul the aggregate materials to the counties purchasing the aggregate materials from the State. Of particular importance to this appeal are adjustments to the compensation APAC paid Miller Trucking based on the cost of fuel during the times relevant to this appeal.

The Miller plaintiffs’ complaint set forth the following undisputed facts:

“In 2007, [ADOT] offered county governments in Alabama road building materials at uniform prices. [ADOT] solicited competitive bids from materials companies to cover the cost of the material and the hauling cost which varied depending on the location of the bidder’s quarry and other factors. For example, a bidder might bid $14 to buy and haul rip rap rock from the Alexander City quarry to Coosa County but might bid $26 to haul the same material to a distant county such as Clarke County.”

In order to submit a bid to ADOT, APAC sought proposed bids for statewide, county-by-county hauling rates from various trucking companies, including Miller Trucking. Using Miller Trucking’s bid to APAC, APAC submitted its bid to ADOT. At the time Miller Trucking submitted its bid to APAC it was unaware that the contract eventually entered into by ADOT and APAC would include a fuel-price-adjustment clause.

On June 24, 2007, Miller Trucking entered into a “Hired Trucker Agreement” with Oldcastle Materials Southeast, Inc., d/b/a SRM Aggregates (“SRM Aggregates”) (hereinafter referred to as “the 2007 hired-truck agreement”). In 2007, at some point after the 2007 hired-truck agreement was entered into, SRM Aggregates, which was a wholly owned subsidiary of Oldcastle Materials, merged with APAC. The 2007 hired-truck agreement did not specify the work Miller Trucking was to perform, did not specify how APAC would pay Miller Trucking for the unspecified work, and did not include a fuel-price-adjustment clause.

After considering the submitted bids, ADOT chose APAC to supply a portion of the aggregate materials to the counties. ADOT and APAC entered into a contract at some point in 2007 that was effective until September 30, 2008 (“the 2007 ADOT-APAC contract”). On March 4, 2008, ADOT issued a document entitled “Special Terms and Conditions,” an addendum to the 2007 ADOT-APAC contract, effective from January 15, 2008, to September 30, 2008, allowing the price of the final delivery charge to be adjusted up or down based on the then current price of gasoline (“the 2007 ADOT-APAC fuel-price-adjustment clause”). Under the 2007 ADOT-APAC fuel-price-adjustment clause, as the price of gasoline increased or decreased, ADOT would increase or decrease the hauling rates owed APAC; the 2007 ADOT-APAC fuel-price-adjustment clause allowed for as much as a 15% decrease and as much as a 20% increase in the hauling rates owed to APAC.

Ben Miller’s deposition testimony indicates that fuel prices began increasing during the first quarter of 2008 and that he contacted APAC about the increase. Joe Hughes, an employee of APAC, had informed Ben Miller by telephone “that there was a fuel stipulation” in the 2007 ADOT-APAC contract that allowed APAC to recover increased charges from ADOT based on the rising cost of fuel. On March 19, 2008, Bén Miller e-mailed Linda Lan-dress, his primary contact at APAC, asking her if she had “heard anything on the fuel situation.” Landress responded to Ben Miller’s inquiry with the following email:

“From my understanding, we have someone in [the] accounting department who is going back to all deliveries and, based on rules on state bid, billing the state entities a fuel surcharge. Once they pay, we will reimburse you that surcharge amount. Going forward, we will be adding the surcharge percentage to your haul rates as we set up orders to deliver.”

Ben Miller stated as follows in his deposition testimony about the e-mail exchange between him and Landress:

“Q. ... [W]hat was your understanding of what was going to take place in response to the fuel situation that you referenced in your e-mail?
“[Ben Miller:] That there was a surcharge between APAC and the state, and they would obviously attempt to procure the money.
“Q. Okay. In other words, APAC heard what you were saying, and they were going to invoke the surcharge that was part of their contract with the state?
“[Ben Miller:] Right, because I told APAC I could not haul and no one could.
“Q. Under the current fuel?
“[Ben Miller:] In the current situation.
“Q. The current situation being fuel prices were going up dramatically?
“[Ben Miller:] Yes.
“Q. Okay. So not only in response to what you had asked did APAC say we’re going to make sure that the — that we’ve invoke [sic] the fuel-surcharge provision with the state, but going forward, we’re also going to be adding the surcharge percentage to your haul rates, correct?
“[Ben Miller:] That is what this email says, yes.
“Q. ... [D]id you have an understanding that APAC was going to go back and make sure that the state for all the previous hauls that you had done had upped its fuel price based on the surcharge in the APAC and state contract?
“[Ben Miller:] Previous hauls?
“Q. Previous hauls?
“[Ben Miller:] I’m not aware that they did that. Yeah, I’m not aware.
“Q. Okay. But then on a going-forward basis, did you have an understanding that they were going to be invoking the fuel-surcharge provision and making sure that it was in place so that the price that they received on the state work was adjusted accordingly?
“[Ben Miller:] Yes.
“Q. Okay. And that ... would obviously flow down to Miller Trucking?
“[Ben Miller:] Yes.
“Q. And did that take place in 2008?
“[Ben Miller:] To the best of my knowledge, it did.”

In fact, from January 15, 2008, to September 30, 2008, which was during the term of the 2007 ADOT-APAC contract, APAC paid Miller Trucking approximately $1,000,000 for hauling services; approximately $200,000 of that amount was upward fuel-price-adjustment payments. It appears that APAC paid Miller Trucking in accordance with the bid Miller Trucking submitted to APAC in June 2007 and in accordance with APAC’s and Miller Trucking’s negotiations concerning the escalating cost of fuel.

As the 2007 ADOT-APAC contract was nearing its completion, ADOT again solicited bids to continue supplying aggregate materials to counties throughout the state. Ben Miller’s deposition testimony indicates that in August 2008 APAC requested that Miller Trucking submit a bid to APAC so that APAC could, in turn, submit a bid to ADOT. Ben Miller’s deposition testimony indicates that, before submitting Miller Trucking’s bid to APAC, Ben Miller spoke with Reynolds concerning fuel prices for the coming contractual period; Ben Miller stated that, “from that discussion, I drew the conclusion that I needed to bid on last year’s fuel prices.” Miller Trucking submitted a bid to APAC on September 3, 2008, which assumed fuel prices of $2.50 to $2.70 per gallon. APAC, based on Miller Trucking’s September 3, 2008, bid, placed a bid with ADOT in an effort to secure a contract from ADOT. APAC was awarded a portion of the work by ADOT. On August 30, 2008, ADOT issued a contract between it and APAC for the period October 1, 2008, to September 30, 2009 (“the 2008 ADOT-APAC contract”); the contract included a fuel-price-adjustment clause (“the 2008 ADOT-APAC fuel-price-adjustment clause”). The 2008 ADOT-APAC fuel-price-adjustment clause stated, in part:

“SHOULD AVERAGE FUEL PRICES EXCEED THE HIGHEST PRICE PER GALLON INDICATED IN THE CHART ABOVE, (OR DECREASE BELOW THE LOWEST-LISTED PRICE), THE MILEAGE ADJUSTMENT RATE WILL CONTINUE TO INCREASE (OR DECREASE) IN 5% INCREMENTS FOR EACH $0.20 PER GALLON INCREASE OR DECREASE IN THE REFERENCED AVERAGE FUEL INDEX.”

(Capitalization in original.) The 2007 ADOT-APAC fuel-priee-adjustment clause did not contain similar language but, instead, limited the amount of fuel-priee-adjustment increases or decreases that could be assessed against APAC. On November 20, 2008, APAC sent Ben Miller, via e-mail, notice of the 2008 ADOT-APAC fuel-priee-adjustment clause. The e-mail from APAC to Ben Miller indicated that Reynolds was going to telephone Ben Miller that day to discuss the fuel-price-adjustment clause; the record does not indicate whether that telephone call occurred.

In December 2008, APAC assessed a retroactive, downward fuel-price adjustment against Miller Trucking in the amount of $11,001.30 for work Miller Trucking had performed for APAC. Ben Miller requested a meeting with Reynolds, which occurred in January 2009. Reynolds’s deposition testimony concerning that meeting is as follows:

“[Reynolds:] We discussed the current economic situation and the State contract.
“Q. Did [Ben Miller] let you know at that time that this is a very distressing situation here as far as [Miller Trucking’s] ability to haul and make any kind of money on the haul?
“[Reynolds:] Yes.
“Q. ... Is it true that in this meeting [Ben Miller] said, look, you know, we didn’t know about these deductions until after we had already been paid, and we had already paid our haulers; and so, what we need is a situation in the future where [APAC] quote[s] a rate to us, and then [Miller Trucking] decide[s] whether [Miller Trucking] want[s] to haul under that rate? Did you [and Ben Miller] have that kind of discussion?
“[Reynolds:] We did.
“Q. And did APAC agree at that time when they tendered a load to Miller [Trucking] that it would be tendered with the adjusted rate so [Miller Trucking] could make a decision as to whether [it] could profitably do the haul?
“[Reynolds:] No, that’s not my recollection at all.
“Q. What is your recollection about that understanding or that discussion?
“[Reynolds:] That’s when we agreed that we would ask the counties to accept less of a discount at the 10 percent rate.
“Q. Accept less than the 10 percent?
“[Reynolds:] No, accept 10 percent, rather than the full 50 or 40 [percent] or whatever it might have been at the time.
“Q. Did you tell [Ben Miller] ... that you thought that could be arranged?
“[Reynolds:] No, I told [Ben Miller] we would attempt to do that.
“Q. And what did you contemplate at that time would make up your attempt?
“[Reynolds:] Well, when the orders came in, we would ask. We would explain the situation and ask the counties, which the price that they would be paying was still lower than the bid, so they would accept it.
“Q. ... After this meeting, did you tell Ms. Landress to do anything different in the way that she communicated the hauls to Miller Trucking?
“[Reynolds:] Yes.
“Q. Tell me what was old and what was new.
“[Reynolds:] Well, what was new was that the counties that had accepted the 10 percent discount, she was to let [Miller Trucking] know that they had accepted that. The ones that didn’t accept it, she was to let [Miller Trucking] know that, as well.
“Q. I understand you to say that there was no agreement reached. You deny there was an agreement reached about whether Miller [Trucking] would be tendered a load with the exact rate that they would get quoted so that they could make a decision. I understand you say there was no agreement to do that. But what I’m asking you is: After that meeting, would Miller Trucking be told by APAC what the actual rate would be that they would be hauling at if they accepted the load?
“[Reynolds:] Yes.
“Q. Was there any discussion at that time that if Miller [Trucking] would hang in there, so to speak, and continue to haul that Miller [Trucking] would be a preferred hauler for other more lucrative projects in the future?
“[Reynolds:] Yes, we told Ben [Miller] that we would try to help him on other contracts outside of [the 2008 ADOT-APAC contract], that we would try to help him, because this is a small portion of the total business that we do. So, with other opportunities out there, yes, we certainly wanted to assist him with his difficulties.”

Ben Miller’s deposition testimony concerning the same meeting states:

“Q. Okay. And what was the gist of what was discussed at the meeting to the extent that you recall?
“[Ben Miller:] We were getting retroactive deductions in arrears. We couldn’t — we were paying the trucks X amount, and we were getting random deductions.™ We didn’t know what we were getting paid to haul for, and we needed to do something. And at this point, the best of my memory, [Reynolds] was going to instruct [Landress] to give me the rate as she had done in the previous year; and she did do that for a couple of e-mails, and then it stopped.
“And then we were also told that there was a 10 percent, a kitty of some sort, and our understanding was there was money being put into that kitty, that 10 percent, or would be put into that 10 percent — would be put into the kitty of 10 percent, and they would use that for any future deductions. And there would be no more monstrosity deductions of [$]40[,000] to $50,000 way after the fact.
“Q. Okay. So you walked away from that meeting with the understanding of the following points, that number one, they had some sort of a kitty set up where they would set aside 10 percent of all the hauling that you were going to be doing—
“[Ben Miller:] Yes.
“Q. —going forward?
“[Ben Miller:] Yes.
“Q. Okay. And there would be no more deductions?
“[Ben Miller:] That is correct.
“Q. Okay. Was the gist of the meeting something needs to change or we can’t haul any more under this contract?
“[Ben Miller:] Yes.
“Q. ... In the [January 2009] meeting ..., did you understand, based on what Mr. Reynolds said, that [APAC was] going to give [Miller Trucking] the rate — when [APAC] tendered a haul to [Miller Trucking], [APAC was] going to give [Miller Trucking] the rate and also whether there would be any adjustment, based on the fuel cost, where [Miller Trucking] could make a decision?
“[Ben Miller:] Absolutely, yes. That’s my point.”

On February 7, 2009, following Ben Miller’s meeting with Reynolds, Ben Miller sent the following e-mail to Landress:

“This is a dire emergency. I met with [Reynolds] two weeks ago about the fuel situation concerning the State. It was my impression [that] he was going to instruct [another APAC employee] to bill at the quoted rate from January 9, 2009, forward, and re[-]bill all prior hauling at said rate. I even spoke with [another APAC employee] about the same issue to make sure all was well, and she assured me January 9, 2009, would be the last check with any type of deduction. We have now incurred a $43,371.52 (this money was paid to the truck owners ... gone) loss this fiscal year for negative fuel charges, and are still owed approximately $1600.00 in unpaid fuel surcharges for the previous year. No company can handle this type of loss. At this rate we will be unable to meet payroll for the coming week. We must address this as soon as possible. We do not want to quit hauling on the State Contract, but at this point it looks as if we must. Please call me as soon as possible. This is an emergency.”

On February 9, 2009, Landress responded via e-mail, as follows: “Well, you might know, my first time after being told to put the haul rate on these e-mails — I forgot. Anyway, the haul rate is $5.40 per ton .... ” Reynolds’s deposition testimony indicates that, following his meeting with Ben Miller in January 2009, he had instructed Landress to include the haul rate in her e-mails to Miller Trucking.

On January 5, 2009, Miller Trucking signed a “Hired Truck Qualification Agreement” with APAC and Oldcastle Materials (“the 2009 hired-truck qualification agreement”). The 2009 hired-truck qualification agreement set forth the work Miller Trucking was to perform and gave Miller Trucking the right to “accept or reject any assignments tendered to it” by APAC. The 2009 hired-truck qualification agreement states that Miller Trucking “shall submit to [APAC] requests/applications for payment based on [APAC] hourly rates in effect at the time the work is performed ... and shall be paid monthly, by the 10th calendar day of the’ following month.” A fuel-price-adjustment clause was not included in the 2009 hired-truck qualification agreement. Further, the 2009 hired-truck qualification agreement contained the following provision:

“11.3 Complete Agreement. This agreement contains all covenants, stipulations and provisions agreed upon between [APAC] and [Miller Trucking] relating to [Miller Trucking’s] Work. No prior or contemporaneous agreement or understanding with any employee, agent or representative of [APAC] or [Miller Trucking] pertaining to the same shall be valid or of any force or effect. No changes, amendments or modifications of this Agreement shall be valid or of any effect unless reduced to writing and signed by the parties hereto.”

During the term of the 2008 ADOT-APAC contract, APAC paid Miller Trucking approximately $800,000 for hauling services, which sum reflected approximately $125,000 in downward fuel-price adjustments. The amount APAC paid Miller Trucking for Miller Trucking’s hauling services does not appear to have been based on an hourly rate, as required by the 2009 hired-truck qualification agreement, but upon Miller Trucking’s bid, which appears to have been based on mileage traveled by Miller Trucking during its deliveries on behalf of APAC.

On December 11, 2009, APAC submitted to the Alabama Board of Adjustment a claim for $147,014.75. In the claim filed with the Board of Adjustment, APAC stated: “State aggregate contract fuel adjustments deducted from 3rd party hauler (Miller Trucking). Hauler is asking for relief based on deductions already taken. (Please see attached documentation).” The “attached documentation” was a Microsoft Power Point presentation created by Ben Miller. Reynolds’s deposition testimony indicates that the amount claimed, $147,014.75, “was the total of the fuel surcharge deducts that [APAC] had on the books at the time.” The Board of Adjustment returned APAC’s claim on January 11, 2010, because APAC had failed to identify the state agency that was responsible for the $147,014.75. The parties do not state whether APAC supplied the requested information to the Board of Adjustment.

On June 4, 2010, the Miller plaintiffs sued the defendants alleging breach of contract, suppression of information, misrepresentation, conversion, and unjust enrichment. On July 26, 2010, the defendants filed a motion to compel arbitration, which the circuit court denied on August 30, 2010. The defendants did not appeal the circuit court’s order denying their motion to compel arbitration.

On October 5, 2010, the defendants filed answers to the Miller plaintiffs’ complaint. In addition, APAC filed a counterclaim against the Miller plaintiffs requesting a judgment declaring the parties’ “rights, duties, status and legal relations” under the 2007 hired-truck agreement, the 2009 hired-truck qualification agreement, the 2007 ADOT-APAC contract, and the 2008 ADOT-APAC contract. APAC also asserted in its counterclaim claims of breach of contract and unjust enrichment.

On May 20, 2011, the Miller plaintiffs filed a motion for a partial summary judgment, arguing that “because [Miller Trucking] did not contractually agree to any fuel-cost adjustments prior to January 4, 2010, the [defendants had no proper legal basis for imposing any fuel-cost adjustments upon [Miller Trucking] prior to January 4, 2010.” The Miller plaintiffs also argued that “[b]ecause the terms of the pre-2010 contracts are plain arid unambiguous, any questions concerning their construction and legal effect upon the parties are proper issues to be decided by a summary judgment.”

On October 24, 2011, the circuit court entered the following order:

“The parties are relieved of their obligation under the scheduling order to mediate their dispute by October 31, 2011. Cross-motions for summary judgment — referable to the contract provision that appears to be the roadblock to efforts to resolve this matter — are to be filed by November 10, 2011, with cross responses to be filed by November 21, 2011.”

It is unclear to which contract provision, or even which contract, the circuit court was referring in its order.

On November 10, 2011, the defendants filed a motion for a summary judgment. The defendants argued that “Miller Trucking’s bid rates and the fuel-price adjustment clause[s] in the [2007 ADOT-APAC contract and the 2008 ADOT-APAC contract] governed the manner and method of APAC’s payments to Miller Trucking.” The defendants argued that

“[t]he fuel-price adjustment clause applies to Miller Trucking because (lj the [2007 ADOT-APAC contract and the 2008 ADOT-APAC contract were] incorporated by reference into the [2007 hired-truck agreement], (2) a course of dealing established that APAC paid Miller Trucking’s bid rate as modified by the fuel-price adjustment clause, and (3) it cannot take the benefits of the State Contract, but reject its burdens.”

Following a hearing on January 30, 2012, the circuit court entered its final judgment on February 7, 2012:

“Pending in this action are cross-motions for summary judgment. The [Miller] plaintiffs have filed a motion for partial summary judgment, seeking a declaration that ‘because [Miller Trucking] did not agree to any fuel-cost adjustments prior to January 4, 2010, the Defendant had no proper legal basis for imposing any fuel cost adjustments upon [Miller Trucking] prior to January 4, 2010.’ The defendants’ motion also seeks a declaration of the parties’ rights and obligations pursuant to the agreement that existed among the parties.
“In addressing the motions, the Court confronts a situation in which there existed an agreement between Miller Trucking, LLC and APAC Mid-South, Inc. (or a predecessor thereof), but the agreement did not completely define the relationship between the parties, which relationship was developed over the course of a couple of years. The Court finds that the continuing course of dealings and course of performance during this period of time is determinative in defining the parties’ respective rights and obligations.
“It is proper to examine such circumstances, which fall outside the confines of any written agreement that might exist. The ... 2007 [hired-truck] [a]greement contains no integration clause. The ... 2009 [hired-truck qualification] [a]greement does contain an integration clause, but that contract does not accurately describe payment arrangements, providing only that Miller Trucking shall submit requests for payment on ‘hourly rates in effect at the time the work is performed.’ While that contract further provides that any modification must be in writing to be effective, Alabama law has held that such language is essentially surplusage, as parties may orally modify even a contract requiring that any modification be in writing (absent a statute of frauds issue). See, e.g., Duncan v. Rossuck, 621 So.2d 1813, 1315 (Ala.1993). It is therefore proper to look beyond the contract to ascertain how the parties’ actions and understandings have modified the written contracts existing between them.
“In doing so, the Court relies on Restatement (Second) of Contracts § 202 (1981), which provides in part the following:
“ ‘(4). Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.
“ ‘(5). Wherever reasonable, the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other and with any relevant course of performance, course of dealing, or usage of trade.’
“Further, ‘[w]hen the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.’ Restatement (Second) of Contracts at § 204.
“Based on the evidence presented by the parties, the Court concludes that there was an understanding that any effect of fuel cost adjustments imposed by the State of Alabama would be passed on by APAC to Miller Trucking. Miller Trucking enjoyed the benefits of such adjustments during the first year of its relationship with APAC; it should bear the burden of the adjustments occurring in the second year.
“Alternatively, even if an enforceable contract cannot properly be found to arise from the facts, [Miller Trucking is] equitably estopped from denying being bound by the fuel adjustment provision in the second year of APAC’s arrangement with the State of Alabama, having enjoyed the fruits of that provision during the first year and having worked with APAC for several months during the second year with knowledge of the fuel adjustment provision.
“The [Miller] plaintiffs’ motion for partial summary judgment is accordingly denied, while the defendants’ summary judgment motion is granted.
“With this ruling, the Court dismisses [the Miller] plaintiffs’ claims in this action, with prejudice. The Court finds in favor of APAC on its counterclaim for a declaratory judgment and finds that APAC’s other counterclaims need not be addressed. This order concludes this litigation, with costs taxed as paid.”

The Miller plaintiffs appealed.

Standard of Review

Our standard for reviewing a summary judgment is well settled:

“ ‘The standard of review applicable to a summary judgment is the same as the standard for granting the motion.... ’ McClendon v. Mountain Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.1992).
“ ‘A summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. The burden is on the moving party to make a prima facie showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law. In determining whether the movant has carried that burden, the court is to view the evidence in a light most favorable to the nonmoving party and to draw all reasonable inferences in favor of that party. To defeat a properly supported summary judgment motion, the nonmoving party must present “substantial evidence” creating a genuine issue of material fact — “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” Ala.Code 1975, § 12-21-12; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).’
“Capital Alliance Ins. Co. v. Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala.1994). Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).”

Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933, 935 (Ala.2006).

Discussion

As set forth above, the circuit court concluded in its final order “that there was an understanding that any effect of fuel cost adjustments imposed by [ADOT] would be passed on by APAC to Miller Trucking.” As the circuit court recognized, there was no written agreement between APAC and Miller Trucking containing such a provision. Instead, the circuit court concluded that, based on the parties’ course of dealings, there was no genuine issue of material fact as to whether the parties had agreed that the effect of the 2007 ADOT-APAC fuel-price-adjustment clause and the 2008 ADOT-APAC fuel-price-adjustment clause would be passed on to Miller Trucking by APAC. The Miller plaintiffs argue on appeal that there is a genuine issue of material fact as to whether APAC and Miller Trucking actually entered into such an agreement. We agree with the Miller plaintiffs.

First, the 2007 hired-truck agreement was not an enforceable contract. In White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1051 (Aa.2008), we held that “ ‘[t]o be enforceable, the [essential] terms of a contract must be sufficiently definite and certain....’” (quoting Brooks v. Hackney, 329 N.C. 166, 170, 404 S.E.2d 854, 857 (1991)). We also held in White Sands that “‘[a] lack of definiteness in an agreement may concern the time of performance, the price to be paid, work to be done, property to be transferred, or miscellaneous stipulations in the agreement.’ 1 Richard A. Lord, Williston on Contracts § 4:21, at 644 (4th ed.2007).” 998 So.2d at 1051. The 2007 hired-truck agreement did not contain any details concerning what work Miller Trucking was to perform, when Miller Trucking was to perform the work, or any details concerning the price APAC would pay for Miller Trucking’s services. Therefore, the 2007 hired-truck agreement was not an enforceable agreement.

APAC and Miller Trucking did, however, enter into a contract in 2007 when APAC accepted Miller Trucking’s bid (“the 2007 APAC-Miller Trucking contract”). In its bid, Miller Trucking speci-fíed the rates it would charge for the hauling services it was to perform for APAC. APAC accepted Miller Trucking’s bid, thereby creating the 2007 APAC-Miller Trucking contract. APAC and Miller Trucking operated under the 2007 APAC-Miller Trucking contract for the duration of the 2007 ADOT-APAC contract.

As set forth above, in early 2008 when fuel prices began escalating, Miller Trucking approached APAC to request that APAC increase the price APAC was paying Miller Trucking for its hauling services; the prices APAC was paying Miller Trucking were based on the bid Miller Trucking had submitted to APAC, Essentially, Miller Trucking sought to modify the terms of the 2007 APAC-Miller Trucking contract. At Miller Trucking’s request, APAC agreed to pay Miller Trucking more than the bid rate, based on the escalating fuel costs. Ben Miller’s deposition testimony to the effect that APAC did not begin to pay Miller Trucking increased compensation based on the rising cost of fuel until Miller Trucking requested APAC do so is substantial evidence that APAC and Miller Trucking were not operating under the 2007 ADOT-APAC fuel-price-adjustment clause from the outset of thS 2007 APAC-Miller Trucking contract. During the term of the 2007 ADOT-APAC contract, APAC paid Miller Trucking approximately $1,000,000, of which $200,000 was increased payments based on. APAC and Miller Trucking’s modification of the 2007 APAC-Miller Trucking contract to take into account the escalating cost of fuel.

APAC and Miller Trucking entered into a new agreement on or about September 3, 2008, when Miller Trucking submitted a bid to APAC, which APAC accepted, so that APAC could, in turn, submit a bid to ADOT (“the 2008 APAC-Miller Trucking contract”). APAC’s bid was accepted by ADOT, which formed the basis of the 2008 ADOT-APAC contract. The 2008 APAC-Miller Trucking contract did not include a provision for fuel-price adjustments but was based upon static fuel prices of $2.50 to $2.70 per gallon.

In December 2008, APAC assessed a retroactive, downward fuel-price adjustment against Miller Trucking in the amount of $11,001.30; APAC’s authority to assess a retroactive, downward fuel-price adjustment is the primary issue in this appeal. There is substantial evidence to indicate that the 2008 APAC-Miller Trucking contract did not include a fuel-price-adjustment provision and that Miller Trucking immediately contacted APAC to object to the downward fuel-price adjustment. Reynolds’s deposition testimony indicates that Miller Trucking was unaware that APAC was going to assess downward fuel-price adjustments before APAC actually did so in December 2008., Reynolds and Ben Miller met in January 2009 to negotiate how Miller Trucking would be compensated, taking into consideration the varying fuel prices, from that time forward.

On January 5, 2009, APAC and Miller Trucking entered into the 2009 hired-truck qualification agreement. However, the 2009 hired-truck qualification agreement specified that Miller Trucking would be paid on an hourly basis, which, despite the clear and unambiguous language in the 2009 hired-truck qualification agreement, has never been the practice between APAC and Miller Trucking. It is unclear from the record if Reynolds and Ben Miller’s early January 2009 meeting occurred before or after APAC and Miller Trucking entered into the 2009 hired-truck qualification agreement. Therefore, it is unclear whether the negotiations that took place between Reynolds and Ben Miller at the January 2009- meeting were an effort to modify the 2008 APAC-Miller Trucking contract or the 2009 hired-truck qualification agreement. Regardless, as evidenced by Ben Miller’s February 7, 2009, e-mail to Landress and Landress’s February 9, 2009, e-mail response, the parties continued to negotiate the compensation Miller Trucking was to receive from APAC after APAC and Miller Trucking entered into the 2009 hired-truck qualification agreement.

We cannot conclude, as did the circuit court, that there is no genuine issue of material fact as to whether APAC and Miller Trucking agreed that the 2007 ADOT-APAC fuel-price-adjustment clause and the 2008 ADOT-APAC fuel-price-adjustment clause were incorporated into the contracts between APAC and Miller Trucking. Reynolds’s deposition testimony is substantial evidence that APAC was going to negotiate a deal with the counties receiving the aggregate materials pursuant to which the counties would pay less than the bid price, but more than the price called for by the 2008 ADOT-APAC fuel-price-adjustment clause. Therefore, there is substantial evidence in the record that APAC and Miller Trucking did not simply agree to incorporate into their agreements the 2007 ADOT-APAC fuel-price-adjustment clause and the 2008 ADOT-APAC fuel-price-adjustment clause.

APAC and Miller Trucking entered into several contracts over the period relevant to this appeal. APAC imposed downward fuel-price adjustments during the periods the 2008 APAC-Miller Trucking contract and the 2009 hired-truck qualification agreement were in effect, which periods may have overlapped. Neither the 2008 APAC-Miller Trucking contract nor the 2009 hired-truck qualification agreement contained a fuel-price-adjustment clause authorizing APAC to assess downward fuel-price adjustments against Miller Trucking. APAC and Miller Trucking engaged in negotiations after the formation of the 2008 APAC-Miller Trucking contract and the 2009 hired-truck qualification agreement to modify the terms of the 2008 APAC-Miller Trucking contract and/or the 2009 hired-truck qualification agreement to include a provision allowing APAC to assess downward fuel-price adjustments. As evidenced by the substantial evidence in the record, APAC and Miller Trucking did not agree to incorporate the 2008 ADOT-APAC fuel-price-adjustment clause into either of those agreements but negotiated their own fuel-price-adjustment agreement, which modified the terms of the 2008 APAC-Miller Trucking contract and/or the 2009 hired-truck qualification agreement. Therefore, a genuine issue of material fact exists as to the circuit court’s finding “that there was an understanding [between APAC and Miller Trucking] that any effect of fuel cost adjustments imposed by [ADOT] would be passed on by APAC to Miller Trucking.”

We also hold that there is a genuine issue of material fact concerning the findings supporting the circuit court’s alternative holding. The circuit court held that

“even if an enforceable contract cannot properly be found to arise from the facts, [Miller Trucking is] equitably es-topped from denying being bound by the [2008 fuel-price-adjustment clause], having enjoyed the fruits of [the 2007 fuel-price-adjustment clause] and having worked with APAC for several months during the second year with knowledge of the [2008 fuel-price-adjustment clause].”

The circuit court did not conclude, and no party has argued, that Miller Trucking was a third-party beneficiary of either the 2007 ADOT-APAC contract or the 2008 ADOT-APAC contract and, thus, that Miller Trucking was receiving the benefit of the 2007 ADOT-APAC fuel-price-adjustment clause or the 2008 ADOT-APAC fuel-price-adjustment clause. Instead, during the term of the 2007 ADOT-APAC contract, as set forth above, Miller Trucking went to APAC and negotiated a modification to the 2007 APAC-Miller Trucking contract allowing Miller Trucking to receive increased payment for its hauling services based on escalating fuel costs. Likewise, during the term of the 2008 APAC-Miller Trucking contract, APAC and Miller Trucking again entered into negotiations concerning the compensation due Miller Trucking as a result of the falling fuel prices. Miller Trucking has never contracted with ADOT, and nothing indicates that Miller Trucking was a third-party beneficiary of either the 2007 ADOT-APAC contract or the 2008 ADOT-APAC contract. Rather, APAC and Miller Trucking have maintained their own contractual relationship. Therefore, the circuit court’s conclusion that Miller Trucking gained a benefit under the 2007 ADOT-APAC contract and, therefore, must carry the burden of the 2008 ADOT-APAC contract is contrary to the facts before us.

Therefore, we reverse the circuit court’s summary judgment in favor of the defendants.

The Miller plaintiffs present several other arguments; however, our decision to reverse the circuit court’s summary judgment in favor of the defendants pretermits discussion of those issues.

Conclusion

Based on the foregoing, we reverse the circuit court’s summary judgment in favor of the defendants and remand the case for further proceedings. A genuine issue of material fact exists as to whether the 2008 APAC-Miller Trucking contract and the 2009 hired-truck qualification agreement were modified to include fuel-price-adjustment agreements and, if so, what the terms of those agreements are.

REVERSED AND REMANDED.

MALONE, C.J., and STUART, SHAW, and WISE, JJ., concur.

      . On January 4, 2010, APAC and Miller Trucking entered into a "renewable trucking agreement” (“the 2010 renewable trucking agreement”). The facts forming the basis of this appeal had transpired before the parties entered into the 2010 renewable trucking agreement; thus, the 2010 renewable trucking agreement does not appear to have any relevance to this appeal.

      . Miller Trucking subcontracted the hauling work that APAC hired it to perform. Miller Trucking did not own any equipment and did not have any drivers who worked directly for it.